@StateDept Updated Assignment Restrictions Regs in 2020, Also Where’s the Preclusion Data?

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Last week, Politico published a piece about hundreds of people of color at the State Department handed “assignment restrictions” due to concerns over split loyalties or being susceptible to foreign influence. See Foreigners in their own country: Asian Americans at State Department confront discrimination. In 2017, The Foreign Service Journal published In Pursuit of Transparency in Assignment Restriction Policies by FSOs Christina T. Le and Thomas T. Wong who at that time were the current and past presidents of the Asian American Foreign Affairs Association (AAFAA). Excerpt below:

Employees’ concerns regarding the assignment restrictions process were plentiful: it was unfair, lacked transparency and was based on ethnic origin or family heritage. Our advocacy to the State Department on the issue began in 2009 and continued in earnest through 2016.

The case was framed by input from countless numbers of employees who came to us expressing real frustration, disillusionment and anger over the lack of transparency and accountability in the process. In some cases, the department had prioritized hiring these officers because of their language skills, only to turn around and preclude them from using those valued language skills overseas.

While assignment restrictions affect many State department employees of different backgrounds, we accumulated substantial anecdotal evidence that it has disproportionately affected employees of AAPI descent. Our data suggested assignment restrictions were levied with race as a factor, with disregard for mitigating circumstances and even based on incorrect facts.

According to the authors, the efforts to confront these issues went back many years: “Mariju Bofill first raised the issue with the Secretary of State in 2009, after consultations with the department’s legal advisor, and continued to raise it during the following three years. Cecilia Choi took the baton in 2012, working with the Bureau of Diplomatic Security to try to come to a fair solution. In 2013, The Washington Post featured an article on the subject, “At the State Department, Diversity Can Count Against You,” highlighting the perspectives of several Foreign Service officers.”
In May 2017, AFSA issued guidance on new provisions governing assignment limitations as negotiated with the State Department; these were reportedly implemented on October 21, 2017 and can be found in 12 FAM 233.5.  The latest update were done on June  24, 2020:

Per FAM, assignment restrictions are conditions placed on a security clearance.  They are used to prevent potential targeting and harassment by foreign intelligence services as well as to lessen foreign influence and/or foreign preference security concerns; for example, if an employee and/or his or her close family members maintain citizenship or dual citizenship with that country or have substantial financial interests or foreign contacts there.  Foreign influence and preference are two of the U.S. Government’s Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.

Assignment restrictions may be determined when the initial clearance determination is made, during periodic reinvestigation, or when an individual’s personal situation changes; i.e., marriage, cohabitation, etc. (see 12 FAM 270).  An individual may be restricted from permanent assignment to a particular country or countries, or in some cases, a desk and/or program where that country or countries are the primary focus.  Desks or other positions may present vulnerabilities for targeting when there is frequent official contact with foreign individuals.  Individuals with an assignment restriction to a country may not serve temporary duty (TDY) in that country for more than a total of 60 days during any 365 day period.

The 2020 FAM update allows for a review within 30 days of receiving the assignment restrictions at an employee’s request, on exceptional circumstances the employee/applicant may also request an additional 15 days review, and there us a review on the assignment restrictions by DS/SI/PSS each time an individual’s continued eligibility for access to classified information is re-adjudicated, typically every five years.
The thing that’s clear in the regs is that the initial assignment restriction is conducted by Diplomatic Security. The  reviewer is also Diplomatic Security. After that review, the decision by DS/DSS becomes final. There is no appeal authority above Diplomatic Security. The State Department’s personnel chief, yes, the DGHR said in a congressional hearing that she “does not know enough about the process to answer the question” (see video below).
The updated regs also do not indicate who tracks, and keep the data about these assignment restrictions. The report on Politico points out that the State Department is required by law to provide to Congress “the number and nature of assignment restrictions and preclusions for the previous three years”. This was part of the Department of State Authorities Act, Fiscal Year 2017 dated December 16, 2016 (see 22 USC 2734c: Employee assignment restrictions).  Which means Tillerson in 2017 or Pompeo in 2018 would have been required to submit preclusion data to Congress dating back at least three years.  And yet, the Politico report said that a State Department spokesperson was unable to say how many diplomats across the department are currently subject to restrictions.
Well, now.  So either the State Department ignored a congressional reporting requirement or the information is available but in a lock box?  Who wants to share?
Congressional representatives like Andy Kim of NJ who previously worked for the State Department has publicly voiced a demand that “we fix this problem.”

Below is the top official in charged of personnel including assignments at the State Department told by the congressman from California to “Maybe you might want to find more about this process since you’re Director General of the Foreign Service and Director of Global Talent and this is affecting your State Department employees … “