U.S. National Zia Zafar Pleads Guilty to the Attempted Murder of U.S. Consulate Official in Mexico

 

In January 2017, we covered the shooting of Christopher Ashcraft, a U.S. diplomat stationed at the U.S. Consulate General in Guadalajara, Mexico.

On July 13, 2018, DOJ announced that U.S. national and former medical student Zia Zafar pleaded guilty to one count of attempted murder of an internationally protected person and one count of discharging a firearm during a crime of violence:

Acting Assistant Attorney General John P. Cronan of the Justice Department’s Criminal Division, U.S. Attorney G. Zachary Terwilliger of the Eastern District of Virginia, Special Agent in Charge Robert F. Lasky of the FBI’s Miami Field Office and Director Christian J. Schurman of the U.S. Department of State’s Diplomatic Security Service (DSS) made the announcement.

Zia Zafar, 33, of Chino Hills, California, pleaded guilty to one count of attempted murder of an internationally protected person and one count of discharging a firearm during a crime of violence.  Zafar entered his guilty plea before U.S District Judge Anthony J. Trenga of the Eastern District of Virginia.  Judge Trenga scheduled Zafar’s sentencing hearing for November, 7, 2018.

According to admissions made in connection with his plea, on Jan. 6, 2017, Zafar armed himself with a firearm, donned a wig and sunglasses to disguise his appearance, and waited in a parking garage for a Vice Consul, who worked at the U.S Consulate in Guadalajara.  Although Zafar initially was following the Vice Consul as he walked towards his vehicle, Zafar noticed a security guard nearby, and instead moved to the vehicle exit ramp, where he waited for the Vice Consul to exit.  As the Vice Consul approached the exit in his car, Zafar fired a single shot into the vehicle, striking the Vice Consul in his chest and leaving him in serious condition.  Zafar admitted that he targeted the Vice Consul because he knew from earlier surveillance that the victim worked at the U.S. Consulate.

“Zia Zafar surveilled and targeted a U.S. official serving in Mexico, lying in wait before shooting him in the chest in a heinous act of premeditated violence,” said Acting Assistant Attorney General Cronan.  “Today’s guilty plea sends a clear message that the Department of Justice will aggressively prosecute those who seek to harm U.S. officials serving overseas.  The Department of Justice will continue work with our domestic and international partners to ensure that anyone who targets U.S. officials abroad will be brought to justice.”

“The Vice Consul was targeted and shot because he represented the United States,” said G. Zachary Terwilliger, U.S. Attorney for the Eastern District of Virginia. “No one should doubt the resolve of law enforcement to steadfastly investigate and apprehend those who attack us. I wish to express our sincere thanks to the many United States and Mexican law enforcement agencies involved in the apprehension and return of this defendant to the United States to face justice.”

[…] FBI and DSS investigated the case in close cooperation with Mexican authorities and with valuable assistance from the Justice Department’s Office of International Affairs, the Drug Enforcement Administration, and U.S. Immigration and Customs Enforcement’s Homeland Security Investigations.  Trial Attorney Jamie Perry of the Criminal Division’s Human Rights and Special Prosecutions Section and Assistant U.S. Attorney Ronald L. Walutes Jr. of the Eastern District of Virginia are prosecuting the case.

The Department of Justice gratefully acknowledges the government of Mexico, to include the Secretaría de Relaciones Exteriores, Procuraduria General de la Republica, Fiscalia del Estado de Jalisco and Instituto Nacional de Migracion for their extraordinary efforts, support and professionalism in responding to this incident.

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Th court filings confirmed much of the details previously reported about this case, though the case remains perplexing.  On January 10, 2017, an Affidavit in Support of a Criminal Complaint was filed by David J. DiMarco, a Special Agent with the Federal Bureau of Investigation(FBI) assigned to the Extraterritorial Squad, Washington Field Office. Includes the following:

On January 6, 2017, Christopher Ashcraft, the victim, was employed with the U.S.Department of State as a Vice Consul in the Consular office in Guadalajara, Mexico. As Vice Consul, Ashcraft is recognized by the Government of Mexico as a diplomat. As such, Ashcraftwas granted diplomatic immunity in the course of his official duties.

On or about January 6, 2017, Christopher Ashcraft visited a gym adjacent to a shopping center located at Agenda Vallarta #3300 in Guadalajara, Mexico. At approximately 6:19 p.m., an individual later identified as the Defendant, ZIA ZAFAR, shot Ashcraft with a pistol as Ashcraft was leaving the gym parking lot in his personal vehicle. The round struck Ashcraft in the chest. Ashcraft was taken to a local hospital for medical treatment, where he currently remains.

Special Agents with the FBI interviewed Ashcraft at the hospital. During the interview, Ashcraft stated that when he exited the gym, he noticed the individual later identified as ZAFAR, who was wearing blue scrubs, white shoes, and what appeared to be a wig. Based upon ZAFAR’s behavior, Ashcraft felt as though ZAFAR was waiting for him. Ashcraft walked to apayment terminal to pay for his parking. When Ashcraft turned to walk towards his vehicle, hesaw that ZAFAR was following him. Ashcraft felt threatened and walked to a populated area of the parking garage. Once ZAFAR was no longer following him, Ashcraft got into his vehicle and drove towards the garage exit. Ashcraft was shot once in the chest while exiting the garage.

Surveillance video from the shopping center and parking garage was obtained by Mexican law enforcement. The video shows a male (later identified as ZAFAR) wearing what appears to be a wig, sunglasses, blue scrubs, and white shoes. ZAFAR appears to be following Ashcraft as Ashcraft exits the gym and pays for his parking at approximately 6:16 p.m. The videothen shows ZAFAR followmg Ashcraft for approximately three seconds. As Ashcraft walks to adifferentarea ofthe garage,the video shows ZAFAR walking up an incoming vehicle ramp at 6:17 p.m. Approximately one minute later, ZAFAR is seen at the top of the exit vehicle ramp, pacing back and forth with his right hand in his pocket. At approximately 6:19 p.m., Ashcraft’s vehicle pulls up to the garage exit. The video shows ZAFAR taking aim with a pistol and firing into the windshield. The video then shows ZAFAR fleeing the scene.

The criminal complaint filed on January 9, 2017 was originally filed under seal and the offense description is listed as “Attempted Murder of an Internationally Protected Person”.

The AFFIDAVIT by USA as to Zia Zafar was also sealed. The criminal case cover sheet is redacted but includes Zia Zafar’s name, Juvenile FBI file number #316130AC9, and year of birth as 1985. The subject’s race, place of birth, language/dialects are left blank (or redacted, hard to tell).

In April 28, 2017, the Defense filed a motion to Seal Defendant’s Motion Pursuant to 18 U.S.C. 4241(d) by Zia Zafar. The filing says that “Sealing of this document is necessary in order to safeguard the privacy and safety of the defendant.”

A Memorandum in Support by Zia Zafar re 28 MOTION to Seal Defendant’s Motion Pursuant to 18 U.S.C. 4241(d) also includes the following:

B. Sealing is necessary in order to safeguard the safety and privacy of the defendant. Counsel for the defendant has considered procedures other than sealing and none will suffice to protect this information from disclosure and to prevent public dissemination of information concerning Mr. Webster’s mental health.

Mr. Webster?

On May 5, 2017, there was a Status Conference to determine the competency of the defendant.

On August 11, 2017 there was an Arraignment/Competency Hearing.

On January 12, 2018 the Court granted the Motion for Psychiatric Exam and ordered that the defendant undergo a psychiatric examination at the Alexandria Detention Center.

On July 13, 2018, DOJ announced that U.S. national and former medical student Zia Zafar pleaded guilty to shooting the U.S. diplomat in Mexico.

The Statement of Facts filed on July 13, 2018 as part of Zafar’s plea agreement is only three page long and notes that Zafar and the diplomat that he attacked did not know each other. According to the Statement, the diplomat was targeted because “the defendant knew from earlier surveillance that he worked at the United States Consulate in Guadalajara, Mexico.” News citing Mexican officials previously reported that Zafar targeted Ashcraft over a visa denial.

The Affidavit submitted in support of the warrant says Zafar entered Mexico on a student visa, had a California driver’s license and drove a Honda Civic with California license plate. It doesn’t say when he entered Mexico or how long was he residing in the country prior to the attack.

The Affidavit did cite the use of a Starbucks receipt and Mexican immigration database to identify Zafar, and help in his apprehension by Mexican authorities.  It also says that “Mexican law enforcement searched the residence and recovered a pistol and several forms of identification bearing the name ZIA ZAFAR. A pair of sunglasses and a wig similar to the ones seen in the surveillance video were also recovered from the residence.”

The court filings do not indicate what made Consulate Guadalajara or this official the specific target in this incident; there is no mention in the unsealed court records of a visa denial as a motive in this attack.

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State/OIG Finds @StateDept Revoked Security Clearance in Retaliation For Whistleblowing

 

Via State/OIG

OIG did not substantiate any allegations of whistleblower retaliation related to Department contractors or grantees. However, OIG did substantiate an allegation of a security clearance revocation in retaliation for whistleblowing activity under PPD-19. As required by the Foreign Affairs Manual, OIG reported its findings to the Under Secretary for Management. The report recommended that the whistleblower’s security clearance be reinstated.

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Presidential Policy Directive-19 (PPD-19) PDF

The brief note from State/OIG’s semi-annual report includes little details about a security clearance revocation, not suspension. According to 12 FAM 233.4, suspension is an independent administrative procedure that does not represent a final determination and does not trigger the procedures outlined in 12 FAM 234, which includes revocation.  With revocation, the Department may determine that immediate suspension without pay from employment under 5 U.S.C. 7532 is deemed advisable.

After State/OIG’s referral to “M”, the Under Secretary for Management will reportedly transmit the IG materials to the Security Appeals Panel, “if one is convened in the matter, and to other Department officials as appropriate” according to the Foreign Affairs Manual.

Note that the State Department does not have a Senate-confirmed “M” as of this writing. We want to know if the security clearance is not reinstated per OIG recommendation.

State/OIG’s semi-annual report also does not include information on consequences for the individual/individuals who perpetrated the revocation of this whistleblower’s security clearance in retaliation for whistleblowing activity.

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Burn Bag: @StateDept’s Reasonable Accommodation For a Pregnant Diplomatic Courier?

Via Burn Bag:

Pregnant diplomatic courier told to use a portable travel toilet, undress in the presence of LES driver and urinate in the back of the truck. This is the best accommodation her supervisor and DRAD* could come up with. Another example of **pregnancy discrimination that is running rampant in the State Department.

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Physical requirements  via careers.state.gov:

A Diplomatic Courier must have the physical endurance to withstand the physical stresses from working long hours, lack of sleep, extremes of heat or cold, and other discomforts and the physical strength to lift and move heavy and/or oversized items such as diplomatic pouches and crates that may weigh as much as 70 pounds or carry heavy equipment. A Diplomatic Courier is required to perform work that requires regular and recurring periods of prolonged sitting, standing, bending, and stretching and is often required to physically move and transport heavy items; that could involve climbing ladders and working in and around aircraft, trucks, trains, aboard ships, etc. Related activities include crawling, maneuvering, and working in cramped spaces.

3 FAM 3350 | LEAVE AND REASSIGNMENT OF DUTIES FOR MATERNITY AND PATERNITY REASONS

* HR/OAA/DRAD is the Disability and Reasonable Accommodations Division in the Office of Accessibility and Accommodations, Bureau of Human Resources at the State Department

** The Pregnancy Discrimination Act of 1978 is an amendment to Title VII of the Civil Rights Act of 1964.  Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. See more: https://fam.state.gov/fam/03fah03/03fah030110.html#H112

 

DSS Agent Accused of Sexual Assaults Petitions Court Not to Show His Face — Oops, Too Late

Posted: 10:25 pm  PT

 

On April 9,  the Milwaukee Journal Sentinel reported that DSS Agent David Scharlat’s lawyer petitioned the court to order news media to not show Scharlat’s face as part of any coverage of the case, citing his undercover work for the U.S. State Department’s Diplomatic Security Service. Bucher withdrew the petition Tuesday after it was reported in the Journal Sentinel.

The Journal Sentinel’s  reported that there was some confusion over Scharlat’s employment status:

In court Wednesday, Hulgaard noted that the State Department relieved him of all his duties, made him surrender his weapon and badge, and escorted him from a government building to his home in April 2015.

In an April 9 letter to Hulgaard, an acting deputy assistant secretary with the Diplomatic Security Service said Scharlat is presently employed, but that disclosure of his identity would not adversely affect any open case or investigation.

But wait, a State Department official also told the Journal Sentinel that Scharlat was hired in 2001 and “fired in April 2015.” Also this:

“The Department has zero tolerance for sexual assault and takes any and all allegations of sexual assault very seriously,” and has been cooperating with Waukesha County authorities, the official said in an email.”

Can they please get their story straight? He can’t still be “presently employed” and also “fired in April 2015.”

If he is still employed but has no assigned duties, it is likely that this is now an HR administrative case with appeals and whatnots. But three years on, and this admin case is still ongoing? How did Diplomatic Security and Bureau of Human Resources Conduct, Suitability, and Discipline Division, Office of Employee Relations (HR/ER/CSD) handle this case when one of the victims reported this case to the agency? How are all other cases handled? How many are there? Who keep tabs of these cases?

Isn’t it high time for State/OIG to look into the handling of sexual assault and sexual harassment reports at the State Department?  Or should we all write a daily email to our friends in Congress to get GAO to take a look?  Click here for our previous posts on sexual assaults and here for harassment.

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Diplomatic Security Agent Charged With Five Counts of Sexual Assault Over Four Years in Wisconsin

Posted: 3:11 am  ET

 

Diplomatic Security agent David S. Scharlat was charged on March 31 with five counts of felony sexual assault, ranging from first to third degree, in Waukesha County Circuit Court in Wisconsin. According to the Journal Sentinel, Scharlat’s attorney, Paul Bucher, said the allegations “were old, including some that had been dismissed at an earlier civil court hearing, and his client believes the alleged actions were consensual.”

Scharlat is an agent with the U.S. Department of State Diplomatic Security Services. On Friday, a spokesperson for the State Department could not comment on his employment status or the investigation.

In a 2012 federal court filing, Scharlat said he was assigned to the Chicago Field Office and had been with the agency for about 11 years.

Wisconsin Circuit Court records indicate case 2017CV001949 was filed against Scharlat on November 6, 2017:  Waukesha County Case Number Party Sealed by Judge Bugenhagen vs. David Scot Scharlat “The court did not issue an injunction against the respondent in this case. The reasons were stated on the record and may be explained in the final order. No adverse inference should be drawn against the respondent when an injunction is denied or a case dismissed. The fact that a petition was originally filed means nothing.”

Case 2017CV001998 was filed on November 13, 2017 for “Domestic Abuse-Temp Rest Order.” Court record for the November 20, 2017 injunction hearing says:

Petitioner in court. Petitioner in court with Attorney Rebecca M Coffee. Respondent David S Scharlat in court. Attorney Paul E Bucher in court for Respondent David S Scharlat. Atty. Coffee requests to proceed on both case 17CV1998 and 17CV1949. Atty. Bucher objects to proceeding on both filings. Court stated they will proceed on both case but the definition of domestic abuse and harassment to defer. Atty. Bucher moves to dismiss both cases. Court denies the Motion to Dismiss. H.W., sworn in and testified. Atty. Bucher requests all witnesses be sequestered. Court orders all witnesses be seated in the hallway. Court continues case for criminal case to proceed. Injunction hearing scheduled for April 30, 2018 at 10:00 am.

Case 2018CF000482 was filed on March 30, 2018 charging Scharlat with Count 1 3rd Degree Sexual Assault; Count 2 1st Degree Sexual Assault/Great Bodily Harm; Count 3-5 2nd Degree Sexual Assault/Use of Force. Initial appearance is scheduled for April 11, 2018 at 1:15 pm. The Court record notes that “This case has not been concluded. Unless a judgment of conviction is entered, the defendant is presumed innocent of all charges.”

The criminal complaint includes three victims, identified as HLW, MRH and CKT with charges filed “upon a review of the investigative reports of Detective Paula Hoffa, Village of Hartland Police Department, Detective Sergeant Gwen Bruckner of the Town of Brookfield Police Department, and Lieutenant Detective Kristen Wraalstad and Officer of the Town of Oconomowoc Police Department.”

According to the complaint, “Officers made contact with Scharlat about the incident on October 20, 2017 at HLW’s residence and he advised officers that although he had been with HLW at her residence on that evening, he had not had intercourse with her at her residence.” The complaint also says that “The fitted sheet from HLW’s bed from the night of October 20, 2017 was submitted to the State Crime Lab for testing. The results from the DNA testing of the sheet showed that Scharlat’s semen was present, consistent with HLW’s statement.”

Under Count 2,  complaint says that “When questioned about HLW’s level of intoxication and her incapacity/inability to give consent, he stated when they got home from the bar, HLW was not incapacitated but did have trouble walking.”

Under Count 3 and 4, complaint says “On Monday, February 26, 2018 officers had contact with MRH 08/01/1967 who, in a statement deemed to be reliable inasmuch as she is a common, ordinary citizen witness indicates that she had been sexually assaulted by David Scharlat on two occasions.”

Under Count 5, complaint says “Officers had contact with CKT, DOB 03/12/1970 to whom they explained they were investigating an incident that they believed may have some connection to an incident involving her. In a statement deemed to truthful and reliable inasmuch as she is a common, ordinary citizen witness in this case, CKT advised that her rapist and stalker was Scharlat.”

We’ve requested comments from DS/Public Affairs about this case but so far have heard only crickets.

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Suicide Attack With an Explosive Device at U.S. Embassy Podgorica #Montenegro

Posted: 2:37 am ET
Updated: Feb 28, 11:20 pm PT

 

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@StateDept’s Office of Security Technology to Purchase Wearable Radiation Dosimeters

Posted: 3:29 am ET

 

On January 10, the State Department issued solicitation #19AQMM18Q0014 for radiation dosimeters. The small business set-aside firm-fixed price contract is for a base year minimum order quantity/quarter of 450 units, and a maximum order quantity/quarter of 475 units, with four option years of the same minimum/maximum requirements. So 1900 units for the base year or 9500 units total in five years.  The order is solicited on behalf of Diplomatic Security’s Office of Security Technology (DS/C/ST):

The Government requies a wearable device that records exposure to ionizing radiation that does not contain electronic equipment. It is anticipated that the device will be returned to the vendor for reading and reporting back to the Government the amount of radiation exposure recorded on the device (see Radiation Survey Results Report for more information on the reporting deliverable).

The anticipated order quantity is up to 475 devices. The anticipated ordering frequency is quarterly. No less than 450 devices will be ordered per quarter.

Delivery of the device is required 30 days from award of the BPA call to the X-Ray Program Manager (to be identified upon BPA award).

Radiation Survey Results Report: Radiation survey results reports are to be delivered to the X-Ray Program Manager (to be identified upon BPA award) within 30 days of receipt of returned device for those devices with a reading of over 50 milliRem (mR). Electronic copies of the report will be accepted, and is preferred, and electronic archiving options are also acceptable and preferred.

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The Department of Homeland Security (DHS) did a survey on radiation dosimeters back in 2015 and established the System Assessment and Validation for Emergency Responders (SAVER) Program to assist emergency responders making procurement decisions. Here is what it says about dosimeters:

Dosimeters are radiation safety devices worn to quantify an individual’s accumulated radiation dose incurred from external sources to evaluate the potential for harmful health effects of radiation. Dosimeters differ from other radiation detection devices that are designed for the purpose of preventing a radiological release by alerting a responder to the presence of radiation.

It appears from the State Department solicitation description that they are looking for processed dosimeters (and not self-reading dosimeters or electronic personal dosimeters, the latter generally the most expensive, largest in size, and most have visual, auditory, or vibratory alarms). Below is what DHS says about processed dosimeters:

Processed dosimeters are based on thermoluminescence (TL), optically stimulated luminescence (OSL), or direct-ion storage (DIS) technologies. Thermoluminescence dosimeters (TLDs) and OSL materials contain defects in their crystal structure that trap electrons released by exposure to radiation. In TLDs, the trapped electrons are subsequently freed by stimulation with heat, while OSL uses stimulation with light. In both types, after stimulation, the resulting light emission provides a measure of the radiation dose received. Specialized equipment is used for this readout, either by the user with field-portable or lab-based equipment, or by a dosimetry processing laboratory. A commercial dosimetry service can be contracted to supply dosimeters on a regular basis, read out returned dosimeters, and provide dose tracking and record keeping. TLDs and OSL dosimeters are offered in either a clip-on brooch format or identification card style. DIS devices use an analog memory cell inside a small, gas-filled, ionization chamber. Incident radiation causes ionizations in the chamber wall and in the gas, and the charge is stored for subsequent readout. The DIS dosimeter is read at the user’s site through connection to a web-based system via a universal serial bus (USB) port or Bluetooth connection to a computer or smart phone. The DIS dosimeter is designed to clip to a breast pocket. Processed dosimeters are also considered passive devices in that they do not have an on/off switch, though DIS devices do contain a small inaccessible battery to maintain their charge or for communications. Processed dosimeters are widely used in health and safety programs for radiation workers such as nuclear

Also this:

The purpose of a dosimeter is for worker protection. The potential hazardous effects of radiation depend on the radiation level. For very high doses (hundreds of R), the effects are immediate (“acute”) such as blood and skin damage or infertility, and the severity of the effect increases with dose.4 For lower radiation levels, the effects are not immediately life threatening; the long term accumulated dose is of interest because the probability (but not the severity) of effects such as cancer increase with dose.

Radiation dosimeters are routinely used in occupational radiation environments in the nuclear industry and at medical facilities. In contrast, except for some hazardous material response teams, most emergency responders do not routinely use radiation dosimeters. Responders may need dosimeters in the event of a radiological release such as a terrorist attack involving a radiological dispersal devise or an improvised nuclear device. Since emergency response scenarios span a wide range of potential radiation levels that could be initially unknown, many factors must be considered in the selection of a radiation dosimeter.

The State Department solicitation notes that the Radiation Survey Results Report are to be delivered to the X-Ray Program Manager within 30 days of receipt of returned device for those devices with a reading of over 50 milliRem (mR). More from DHS’s market survey report:

One of the most important factors influencing selection of radiation dosimeters is the magnitude of radiation levels that an instrument can measure – for example, a very sensitive device with a low minimum range is useful for alerting users to the presence of radiation but may go off-scale and not function in a high radiation field. The operational range of a dosimeter will determine how it can be used during the response, and several guidance documents provide reference values that help define what ranges are applicable. For example, the National Council on Radiation Protection and Measurements (NCRP) defined radiation control zone perimeters for emergency response to nuclear and radiological terrorism, where the “cold zone” is the area where the exposure rate is less than or equal to 10 mR/h, the “hot zone” is an area with exposure rate greater than 10 mR/h, and the “dangerous-radiation zone” is at 10 R/h and higher. Accumulated dose guidelines have also been developed by the Environmental Protection Agency (EPA) and the NCRP to guide tactical emergency response decisions, such as 10 rem for property protection operations and 25 rem and higher to conduct lifesaving missions, 5 or 50 rad to decide whether to withdraw from a radiation area.
[…]
The ability to alarm or display instant results may be an important feature to consider in relation to the magnitude of radiation levels. For example, in a dangerous radiation field, a high range electronic device that can measure exposure rates with a real-time display and alarms could help a responder avoid potentially life threatening doses. In a lower radiation field, self-reading and field-readable processed dosimeters could be used to provide near real-time information. In both types of fields and during intermediate and late phase recovery operations, processed personal dosimeters could be used for later verification of field instrument readings and to track accumulated dose for long term health.

Source doc: DHS Radiation Dosimeters for Response and Recovery Market Survey Report | June 2016 (PDF)

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Senators Seek Review/Analysis of @StateDept and @USAID Sexual Harassment and Assault Data

Posted: 2:29 am ET

 

U.S. Senators Ben Cardin (D-Md.), Ranking Member of the Senate Foreign Relations Committee, and Jeanne Shaheen (D-N.H.), Ranking Member of the SFRC Subcommittee on State Department and USAID Management, led the Committee’s Democrats in a letter to Secretary of State Rex Tillerson and USAID Administrator Mark Green on January 17, requesting a review and analysis of data to better understand the scope of sexual harassment and assault issues at the Department and Agency, in order to consider appropriate policy changes to address the problems.

ABOUT TIME.

Note that back in September 2016,  this blog wanted to know the statistics on sexual assault in the Foreign Service, specifically in Afghanistan and Iraq since 2003. We were also interested in overall statistics on sexual assault in the Foreign Service worldwide, during the last 10 years. We did not ask for names, only numbers. We simply asked for an accounting of sexual assault reports since the invasion of Iraq in 2003 to the present, and the worldwide number of reports spanning over 280 overseas posts in the last 10 years. We were sure the data must be available somewhere. How could it not?

This was the State Department’s official response at that time:

“The Office of Special Investigations receives and catalogues allegations and complaints. Allegations are neither categorized by location nor by alleged offense.”

That remains a shocking response.

Without looking at their data by location and offense, or for that matter by individuals accused, how is the State Department to know when there are serial offenders in its ranks? (See The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief).

In its 4th Quarter 2017 report for period ending September 30, 2017, the Office of Civil Rights (S/OCR) does have some information on Equal Employment Opportunity Data required by the No Fear Act.  The public report indicates that reprisal is the number one complaint by basis in FY2017.  Non-sexual harassment went from 72 complaints in 2016 to 103 at the end of FY2017. The comparative report notes 3 complaints of sexual harassment in 2016 and 6 complaints at end of FY2017.

The average number of days in investigation? 207.17 days.

Total Findings of Discrimination after a hearing for sexual harassment? Zero. In 2012.

Also zero in 2013, in 2014, in 2015, in 2016, and through the end of FY2017. Zero.

Apparently, S/OCR does not also count cases reversed by the EEOC like that 2016 case where S/OCR did not find sexual harassment but where the EEOC decided that the complainant was indeed subjected to sexual harassment and ordered the State Department to take remedial actions (see @StateDept to Hold “Harassment in the Workplace” Session But First, Read This FSI Sexual Harassment Case).

S/OCR was recently a presenter in a State Department Q&A session “Should I Report That? How (and when) to Report Workplace Conflict, Harassment & Bias in the Department”.

To read more about our previous posts on sexual assault, click here; for sexual harassment, click here.

Below is the text of the letter to Secretary Tillerson and USAID Administrator Mark Green:

We write to draw to your attention the November 28, 2017 letter signed by over 200 national security professionals who have served, often with distinction, in the State Department, the intelligence community, USAID, and the Pentagon about their experiences of (or serving as witnesses to) incidents of sexual harassment or sexual assault inside our national security bureaucracies.

This letter speaks to what we believe remains a critical issue that too many of our national security institutions have been too slow to address: sexual assault and harassment and its effects on the professionalism and effective functioning of those institutions. These incidents and the pervasive culture that all too frequently excuses these behaviors and actions have had serious and detrimental consequences for the careers and lives of those affected – and by depriving the United States of the service of some of our best and brightest, a deep and negative effect on our national security.

To better address this issue, we would urge you to provide the Foreign Relations Committee a review of your current methods for data collection, oversight, reporting structure, victim protections, analysis and anti-sexual harassment training, including employee feedback on these mechanisms and how they are being implemented. In our oversight capacity, we hope to work with you, to review and analyze the data to better understand the scope of the problem we confront as we consider appropriate policy changes to address it.

The November 28 letter contends that training is all too often “erratic” and “irregular,” and that policies often go unnoticed among staff. In our experiences serving on the oversight committee with responsibilities for the Department of State and USAID we concur with this contention. We would urge that you pay special attention to whether anti-harassment training is adequate, how it is implemented, and how it is enforced, in your respective reviews. We also urge you to examine your procedures for disciplinary actions to ensure that those who demonstrate improper behavior are held accountable for their actions.

The letter also calls for a number of reforms including a clear indication that national security leadership will not tolerate certain behavior, ensuring the full accessibility and functioning of “multiple, clear, private” channels to report abuse without fear of retribution, and ensuring sufficiently regular, mandatory, and instructive training for employees and contractors. We would be interested in your thoughts and comments on these potential areas for reform.

We also urge that you each take the opportunity to work with us to determine what additional resources are necessary to ensure that each report and allegation receives proper attention, that your offices are collecting all the relevant data, that cases are addressed in a timely and confidential fashion, and that training is fully implemented across the State and USAID workforce.

At a moment in our country when we are being reminded anew of the scope and challenge of sexual harassment in the workplace, we are rededicating ourselves here in the Senate to addressing this issue in our own ranks. The Legislative branch faces similar challenges and that while we work to address them, we expect the same from executive branch agencies. For our part, in addition to exploring appropriate oversight and legislative action to ensure that you have the resources and focus that you need to address these issues, we also intend to place additional emphasis on these issues in the confirmation process. We intend to ensure that nominees live up to the highest standards of behavior, and will seek commitments regarding how they intend to address sexual harassment and assault if they are confirmed.

Lastly, we note that the abuses, harassment and assaults noted in the November 28 letter are enabled by an environment in which the diversity of our nation – one of our “secret weapons” and competitive advantages as a nation – is not reflected in the national security workforce. This is especially true at the senior levels. At the State Department, for example, women and men enter the Foreign Service in roughly comparable numbers, but only about one-third of our senior Foreign Service Officers are women. Although women comprise a majority of the Civil Service, the Senior Executive Service remains 61% male and 89% white. Similarly disturbing trends come to light when analyzing the salaries, bonuses and expectations of workplace behavior amongst men and women working in national security roles. We still have a long way to go on gender equality in the national security workforce, and encourage you to share with us as well your vision for how you plan to address deficiencies in recruitment, retention and promotion to assure that your national security workforce is equitably balanced.

The members of our national security workforce should not be forced to spend their time and energy combatting harassment and a culture of tolerance for disrespectful behavior. Rather, they should be free to focus on what they do best – working to keep our nation safe. And we know from numerous studies that a more diverse workforce leads to better outcomes. A 2015 McKinsey study found that a more diverse workforce is more successful through improved decision-making, leadership, and financial progress. We know that to be true in the private sector and we know that to be true for government as well.

Mindful that there are myriad challenges and opportunities to better address sexual harassment in the workplace we do not seek nor do we expect you to develop a cookie-cutter approach to these issues. Rather, we call on you to respect the dignity of each member of our national security workforce by ensuring an environment in which each individual is capable of fully contributing his or her talents to our national security, without obstruction.

The original text of letter is posted here.

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EEOC Case: Investigators Find False Accusations, Agency Refuses to Help Clear His Name

Posted: 3:01 am ET

 

This is an EEOC case about a complainant who was the Consul General at the U.S. Consulate General in Naples, Italy.  The name used here is a pseudonym as in eeoc practice but the details are similar to the ugly, nasty case a few years back that made the news.  Most notable lesson here about the Privacy Act, and the limits of  Diplomatic Security’s willingness to clear somebody’s name when needed.

Via eeoc.gov

Believing that the Agency subjected him to unlawful discrimination, Complainant filed an equal employment opportunity (EEO) claim with the Agency. On November 26, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. This decision on the breached settlement was issued in November 2016. Excerpt below:

Background:

The record reflects that a subordinate of Complainant (Subordinate 1), who resigned in May 2012, and to a lesser extent her spouse made highly charged allegations against Complainant, i.e., entertaining prostitutes, escorts, and married women in his residence during work hours, engaging in fraud or mismanagement of funds, permitting his driver to be fired so his job could go to someone else and as a form of retaliation, throwing metal umbrella pots from his sixth floor residence down to the parking lot below and then jumping on and crushing them, and this was captured on CCTV and in front of the security guards, and so forth. By April 2013, the U.S. Embassy Rome, in consultation with the Bureau of Diplomatic Security, Special Investigation Division initiated an investigation. The investigation was conducted by two Special Agents with the Bureau of Diplomatic Security, and involved 20 individual interviews with Consulate Staff. It concluded that the accusation that Complainant threw metal pots was “false,” and the three other allegations specified above were completely false. The investigation found that the remaining allegations were variously false, completely false, unsubstantiated, not supported by evidence, and one, in essence, grossly exaggerated.

On June 16, 2013, the New York Post and Fox News published highly negative stories about Complainant, writing for example that Subordinate 1, a whistleblower, said Complainant had trysts with hookers, and this was the latest black eye for the scandal-ridden State Department. On June 17, 2013, Complainant was copied on an Agency email chain regarding the New York Post reporting Subordinate 1’s allegation that Complainant insisted a staffer have an abortion and the staffer said she got her “tubes tied” at his instruction. It was indicated in the email chain that the staffer said the article was “all lies” and felt strongly that she should respond to the article by saying something. The above DCM advised that it would be much better for the staffer not to say anything for now – that this could all blow over quickly.

In his EEO claim, according to Complainant, he alleged discrimination when he was denied assignments in line with his experience, ability, and professional background, the DCM knew that allegations against him by Subordinate 1, her spouse and two others were false and failed to take appropriate action, and management held him accountable for the false accusations and denied him support.

By letters to the Agency dated February 1, 2016 and May 10, 2016, Complainant alleged that the Agency misled him into entering into the settlement agreement and breached it. Specifically, he alleged that when he signed the settlement agreement, the Agency knew Subordinate 1’s EEO complaint had been investigated with a finding of no wrongdoing on his part, that she would likely continue to litigate in federal court, and he could have used the EEO decision to exonerate himself. Complainant wrote that after the settlement agreement, Subordinate 1 continued to attack him in the press, with articles appearing in prominent news outlets such as Newsweek and the New York Post. He pointed to a proposed June 2013 Agency press release recounting that the Diplomatic Security Service investigated the allegations and found no violations of U.S. or Italian law, and contended that had the press release been issued this would have rebutted the articles or they would not have been published. He argues that the Agency allowed employees and family members to utilize the EEO process to raise false allegations against him despite the Agency’s conclusion that they were baseless, and in failing to clear his name breached the settlement agreement and made it ineffective and unenforceable.

The Agency found that it complied with the settlement agreement. Regarding term 9.d, the Agency found that Complainant’s submittal of proposed changes to his 2012 EER was a condition precedent to the former DCM reviewing them and considering making changes, and Complainant admitted he did not submit proposed changes because he was too disheartened and depressed. On appeal, Complainant, who is represented by counsel, confirms this, but adds another reason was that he lacked the necessary facts, particularly the EEO decision on Subordinate 1’s complaint.

Regarding term 9.g, the Agency recounted that Complainant stated it was breached because (1) the Agency simply wrote a one page memorandum simply listing the allegations against him and stating they were found to be unsubstantiated rather than discussing things in context to show how his accusers seized on scandal to defame him and hinder his career, (2) the memorandum was only based on facts until October 2013, failing to fulfill its purpose of summarizing the Diplomatic Security investigation,3 and (3) the Agency, in response to his inquiries, could not give him a clear answer on whether he could share the memorandum with family, colleagues, friends, and his Italian attorney, preventing him from doing so. On appeal, Complainant confirms that he raised reasons (1) and (3). He argues that not being able to share the memorandum makes it useless and his reason for entering into settlement negotiations was to restore his reputation.

In determining that it complied with term 9.g, the Agency found that it met its obligation to provide a summary of the investigation, and that there is no evidence the parties agreed to any specific format in or upon the use of the memorandum.

In determining that it did not negotiate the settlement agreement in bad faith, the Agency found that Complainant cited no authority for the proposition that it was obligated to divulge the outcome of Subordinate 1’s EEO case, and there was no evidence it negotiated in bad faith.

On appeal, Complainant adds that he would not have bargained for a memorandum summarizing the results of the Bureau of Diplomatic Security’s investigation had he known he could not use it, this is common sense, and the Agency’s failure to authorize its use is a breach of the settlement agreement. Complainant argues that the Agency breached the settlement agreement by failing to live up to the spirit of the document. He argues that the Agency’s failure, upon his request, to allow the issuance of the proposed press release in the Agency’s name violates the settlement agreement.

In opposition to the appeal, the Agency argues that disclosing Subordinate 1’s employment discrimination investigation would violate privacy right protected information, and it did not negotiate the settlement agreement in bad faith.

Decision

In June 2013, after the New York Post reported highly charged accusations by Subordinate 1 about the way Complainant treated a staffer, an Agency email string on which Complainant was copied showed the staffer wanted to say something rebutting what was reported, but the former DCM opined it would be much better if the staffer did not say anything now – this could blow over quickly. Further, Complainant strongly suggests that he was aware the Bureau of Diplomatic Security investigation was favorable and he certainly knew the Agency had done nothing to publically clear his name. While Complainant wanted the Agency to publically clear his name, he agreed to a settlement agreement that did not have a term explicitly doing this. Instead, the Agency agreed to issue to a summary of the Bureau of Diplomatic Security to Complainant – not the public.

Complainant’s contention that the Agency bargained for the settlement agreement in bad faith is not persuasive. First, as argued by the Agency, it had reason to believe the administrative decision on Subordinate 1’s complaint was protected by the Privacy Act, since administrative EEO records are generally within the scope of the Act. Further, Complainant has not shown he did not already have sufficient information to make a fair bargain when negotiating the settlement agreement.

The FAD is AFFIRMED.

Read the full case here via eeoc.gov.

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