Dissent Channel: Draft Memo Over #MuslimBan Leaks – Now What?

Posted: 1:19 pm  PT
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On January 27, President Trump issued Executive Order that suspends the entry of refugees to the United States for 120 days and deny entry/issuance of visas to citizens of seven Muslim-majority countries [Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen] for 90 days. (see Trump EO: Protecting the Nation From Foreign Terrorist Entry into the United States, 1.27.2017).

On January 30, somebody leaked to Lawfare a draft Dissent Channel memo written by State Department employees officially dissenting from the Trump executive order. We’ve previously written about dissent in the Foreign Service in this blog:

The State Department has 75,231 employees worldwide, including 50,104 locally hired employees, 11,147 Civil Service employees, and 13,980 Foreign Service employees. The signatories of this dissent memo, as reported, ranges from 900 to about 1,000 employees.

One leaked that memo.

This was a bad move.

The policy that allows the existence of the Dissent Channel is long in history and tradition in the State Department. But it has only been in existence for 46 years.

On January 31, the Democratic Members of the House Committee on Foreign Affairs reminded the Trump Administration that State Department personnel who dissent from policy are protected by law and sought assurances that State Department personnel would not be subject to harassment or retribution for offering dissenting viewpoints. They cited the Foreign Service Act of 1980.  The Foreign Affairs (2 FAM 070) which governs the Dissent Channel says that the Channel is “derived from the authority to manage the Department of State and the Foreign Service per 22 U.S.C. 2656, 22 U.S.C 2651a.”  

The last time the Dissent Channel was in the news was when a group of FSOs submitted a dissent cable in the waning days of the Obama Administration over its Syria policy. That also quickly leaked. At that time, a retired ambassador had some strong words concerning the leak expressing concerns that it “jeopardized an important institution.”  Another retired career ambassador at that time, also said that “the channel can only work if it is “internal use only,”  i.e., it does not become part of the political diatribe.” Read more here: Dissent Channel Leak: Who Gains the Most From Flogging the Laundry Like This?

We are interested in hearing about policy battles inside the bureaucracy but we also recognize that the intent of the Dissent Channel is to inform the administration of the day and that these policy disagreements are not for public consumption.  We don’t like it but we understand why it has to be that way.  The Channel affords the Administration through the Director of Policy Planning (S/P) two working days to acknowledge the message, and 30-60 working days to provide a substantive response.   One might argue that perhaps the current administration, which appears to be a bull in a China shop would not be interested in providing a substantive response. Perhaps, but there’s no way to tell now.

The memo was leaked before it was submitted to the Dissent Channel. This will probably cause the greatest crisis of confidence between the new President and the Foreign Service since 1971 (see Dissent Channel Leak: Who Gains the Most From Flogging the Laundry Like This?).  We hope it doesn’t, but the possibility is there.

We applaud the courage of the employees to dissent from this policy that is not only un-American but also detrimental to the interests of our country.  That said, this leak was a bad move. The signatories expected the dissent memo to go to the Dissent Channel. One signer told us he/she was “pissed” that the memo was made public. He/She was not the only one. The leak also demonstrates, perhaps, an unstated belief that the Dissent Channel does not work, otherwise, why leaked it before it even got to the proper channel? By not affording the Administration a time to response, and by leaking the dissent memo before it was even submitted to the Dissent Channel, the dissent itself, and the institution became immediately embroiled in –you guess it — “political diatribe.”  

Employees who signed the dissent memo did not sign off on this leak. They know what is required of them when they signed up for these jobs.  Some are now concerned of potential repercussions.  Policy Planning, the office with responsibility over the Dissent Channel was most recently encumbered by Jon Finer, who also served as Secretary Kerry’s chief of staff. Previously, the office head was longtime Kerry aide, David McKean. We can’t remember the last time S/P was encumbered by a career Foreign Service officer. We anticipate that the new administration will staff the office with its own political appointee. That political appointee will have access to all records at S/P.

Given the potential for vindictiveness, and the statements coming out of the White House Press Secretary, one has to be concerned on how this will end. We are looking at Secretary Tillerson to assure State Department employees that he supports this honorable tradition of dissent free from retaliation.  The new secretary of state will most certainly also need an assurance that his employees will always give him their best counsel, without making every policy fight a public one.  We do not doubt that there will be many more policy fights ahead.  So we hope people do not panic, but get ready for the next one.

We want to note that Lawfare’s Benjamin Wittes tweeted his offer to help FSOs who suffer from retaliation over this memo:  “I want to stress that ANY FSO who faces retaliation for this memo should contact or me.” He also writes, “We will get you a first rate lawyer. And that’s a promise.

The head of a nonpartisan independent watchdog has also told us that she wants to help. Let us know, if needed, and we’ll connect you.

OMB/OPM Issues Additional Guidance For Federal Civilian Hiring Freeze, Jan 31.2017 (Read)

Posted: 2:43 am ET
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On January 31, Mark Sandy, Acting OMB Director, and Kathleen McGettigan, Acting OPM Director issued a joint memo which provides  additional guidance regarding the freeze on the hiring of Federal civilian employees. The hiring freeze  was directed by the President on January 23, 2017, via Presidential Memorandum entitled “Hiring Freeze.”

Item #3 lists the exemptions permitted under the Federal civilian hiring freeze. Take note of the following:

c.  Nomination and appointment of officials to positions requiring Presidential appointment, with or without Senate confirmation.

d.  Appointment of officials to non-career positions in the Senior Executive Service (SES) or to Schedule C appointments in the Excepted Service, or the appointment of any other officials who serve at the pleasure of the appointing authority (i.e., “appointed” positions of a political/non-career nature).

h.  Appointments made under the Pathways Internship and Presidential Management Fellows (PMF) Programs (this does not include the Recent Graduates Program).  Agencies should ensure that such hires understand the provisional nature of these appointments and that conversion is not guaranteed.

and

r.  The head of any agency may exempt any positions that it deems necessary to:

i.  Meet national security (including foreign relations) responsibilities, or

ii.  Meet public safety responsibilities (including essential activities to the extent that they protect life and property).  Agencies may refer to longstanding guidance, which provides examples of such activities in OMB Memorandum, Agency Operations in the Absence of Appropriations, dated 11/17/1981 [see examples 3(a) to 3(k)].

Note that the memo ends with the following:  The guidance in this memorandum is effective immediately.  Within 90 days of the publication of the PM issued on January 23, 2017, the Director of OMB, in consultation with the Director of OPM, shall recommend a long-term plan to reduce the size of the Federal Government’s workforce through attrition.  The hiring freeze will expire upon implementation of the OMB plan.

The original memo is here or read in full below (click on lower right hand corner arrow to maximize reading space).

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Trump EO Results in Provisional Revocations of Valid Visas, Chaos For Dual Nationals

Posted: 1:38 am ET
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On January 27, President Trump signed an executive order suspending the entry of refugees to the United States for FY2017 for 120 days. The E.O also proclaimed the entry of certain aliens as “detrimental to the interests of the United States” and declared the suspension of their entry into the United States for 90 days.  The aliens referred to are from countries cited under Section 217(a)(12) of the INA, 8 U.S.C.1187(a)(12) according to the executive order.  These are the same countries cited under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015: Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen.

Urgent Notice

The State Department issued an urgent notice on January 27:

Per the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals signed on January 27, 2017, visa issuance to nationals of the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen has been suspended effective immediately until further notification. If you are a citizen of one of these countries, please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please DO NOT ATTEND. You will not be permitted entry to the Embassy/Consulate. We will announce any other changes affecting travelers to the United States as soon as that information is available.

Provisional Revocations

It appears that not only has the U.S. Government suspended the entry and processing of visas for this seven Muslim-majority countries, it also made the State Department “provisionally revoked” (with exceptions) the valid visas issued to citizens from these seven countries. If the travel ban is lifted after 90 days, the rules allow for the reinstatement of visas, presumably with whatever “extreme vetting” the government will have in place by then.

Provisional revocation via the Federal Register:

In cases where the person subject to a provisional revocation is found to be eligible for the visa, the visa will be reinstated with no need for reapplication. However, with the exception of provisional revocations, an applicant whose visa has been revoked must apply for another visa, at which time his or her eligibility for the visa will be adjudicated.

Questions for the State Department

We asked the State Department how the EO affects dual-nationals, green card holders and travelers from these seven countries.  We also asked previously if travelers issued visas on the day the EO was issued now expect that those visas no longer have validity. We wanted to know if consular posts are canceling all visa appointments/refunding all visa application fees from applicants in the affected countries. We requested an estimate of how many applicants were in the pipeline when the ban took effect.

We get to ask our questions but we don’t always get the response we need. For travelers who are nationals/dual-nationals of the seven countries, a State Department official speaking on background offered the following:

Beginning January 27, 2017, travelers who have nationality or dual nationality of one of these countries [Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen] will not be permitted for 90 days to enter the United States or be issued an immigrant or nonimmigrant visa.

Those nationals or dual nationals holding valid immigrant or nonimmigrant visas will not be permitted to enter the United States during this period. Visa interviews will generally not be scheduled for nationals of these countries during this period.

So the suspension affects not only the entry to the U.S. but also the issuance of immigrant (green card) and nonimmigrant (temporary) visas. An SBU cable reportedly went out to all posts last Saturday explaining the executive order.  The State Department official says, “As we would for any operational change, we communicated instructions to our consulates in affected countries and around the world.”

The State Department official cites an exception to the ban on a “case-by-case” basis and when “in the national interest.”

The Department of Homeland Security and Department of State may, on a case-by-case basis, and when in the national interest, issue visas or allow entry to nationals of countries for which visas and entry are otherwise blocked under this Executive Order.

Asked specifically about dual-nationals, the State Department official only notes about dual-national Americans:

This Executive Order should not affect dual-nationality Americans at all. U.S. citizens (although they might also have another nationality) are required to use their U.S. passport when entering and departing the United States. They do not receive visas or enter the U.S. as a foreign national, so this Executive Order does not apply to them.

The EO clearly does not apply to American citizens but it appears to be a different story in our airport terminals:

We also asked the State Department about third country dual nationals with the seven countries, for instance Canadian-Iranians or British-Iraqi citizens.  The State Department directed us to check with Homeland Security. As of this writing, we have not heard a response. Meanwhile, the chaos continue.

Israeli Dual Nationals With Seven Restricted Countries

The US Embassy in Tel Aviv posted the following message which contradicts the information we received from the State Department on dual nationals:

Travelers with an existing valid visa in their Israeli passport may travel to the United States, even if they are also a national of or born in one of the seven restricted countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen). Embassy Tel Aviv will continue to process visa applications and issue visas to eligible visa applicants who apply with an Israeli passport, even if born in, or a dual national of, one of the seven restricted countries. Final authorization to enter the United States is always determined at the port of entry.

 

UK Dual Nationals With Seven Restricted Countries

The US Embassy in London said that “Dual nationals of the United Kingdom and one of these countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa.” But the UKFCO has additional guidelines that seems to indicate point of origin as a factor, too, which adds to more confusion:

  • the Presidential executive order only applies to individuals travelling from one of the 7 named countries
  • if you are travelling to the US from anywhere other than one of those countries (for instance, the UK) the executive order does not apply to you and you will experience no extra checks regardless of your nationality or your place of birth
  • if you are a UK national who happens to be travelling from one of those countries to the US, then the order does not apply to you – even if you were born in one of those countries
  • if you are a dual citizen of one of those countries travelling to the US from OUTSIDE those countries then the order does not apply to you
  • The only dual nationals who might have extra checks are those coming from one of the 7 countries themselves – for example a UK-Libya dual national coming from Libya to the US.

Canadian Dual Nationals With Seven Restricted Countries

Media reports citing DHS and the State Department says that dual nationals with the seven countries will be refused entry. This is the same thing we were told.   Meanwhile, the Canadian Ambassador to the US said exactly the opposite. Canadian PM Justin Trudeau on Twitter also release a statement citing confirmation from NSA Mike Flynn that Canadian citizens including dual citizens will not be affected by the ban.

Welcome to big time confusion and chaos!

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