FSGB Case: Revocation of Top Secret Security Clearance and Separation

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Via FSGB Case No. 2020-002:

Held – The Grievance Board found that because the security clearance of the charged employee had been revoked after final agency review, the Department of State established that the proposed separation of the charged employee was for such cause as will promote the efficiency of the Foreign Service.

Case Summary The charged employee, a Diplomatic Security Special Agent, was notified that his Top Secret security clearance was suspended for failure to cooperate in certain medical assessments. The charged employee’s clearance subsequently was revoked. The charged employee appealed the revocation to the Department’s Security Appeals Panel, which sustained the revocation after consideration of the written submissions of both the charged employee and the Department. Because a Top Secret security clearance is a condition of employment for the charged employee and because the revocation of his clearance was final, the Department proposed to separate the employee for cause. After a hearing on the issue, the Board concluded that the Department had established cause for the separation and evidence that the separation would promote the efficiency of the Service.

Background

On July 11, 2014, the Director of the Office of Personnel Security and Suitability, Bureau of Diplomatic Security (DS/SI/PSS), notified the charged employee, via memorandum that his “continued access to classified information was not clearly consistent with the interests of national security.”1 Accordingly, his Top Secret security clearance was suspended pending the outcome of “ongoing Department medical review.” 2 The charged employee held a position as an FS-02 DS Special Agent who required a Top Secret security clearance to perform his duties.

On October 7, 2015, the Deputy Assistant Secretary for Domestic Operations notified the charged employee by letter that his Top Secret security clearance was revoked. The employee was afforded 30 days to request a review of this decision. It appears that a review was requested because on March 13, 2019, the Principal Deputy Legal Adviser, on behalf of the Security Appeals Panel (Panel) notified the employee by letter that the Panel voted to sustain the decision of DS to revoke his Top Secret security clearance. This letter noted that the Panel had convened on February 19, 2019; that the charged employee had appeared and answered questions; and that the Panel took into account his responses, as well as written materials provided by the employee, his private counsel, DS.3

On August 20, 2019, the Director General notified the charged employee that the Department proposed to separate him for cause, under Section 610 of the FSA as amended, in order to promote the efficiency of the Service. The separation proposal stated that all Foreign Service positions require a Top Secret security clearance because all FS positions are “critical sensitive.” 4 Thus, because his security clearance had been revoked after all final reviews, the charged employee could no longer maintain a condition of his employment.

The charged employee responded by email on September 3, 2019 to the proposed letter of separation, stating, “Separating me from the Department does not seem right to me.” 5 The charged employee offered no other written or oral response to explain, rebut, or mitigate the separation proposal.

On January 6, 2020, the Department submitted the transmittal containing the separation proposal to the FSGB. On February 25, 2020, the Board conducted a pre-hearing conference (PHC) with the parties by telephone, during which the Board, the charged employee and the Department agreed upon procedural ground rules and a schedule of events prior to the hearing.6

The Department indicated at the PHC that beyond the documents submitted with the Department’s separation file in this case, the agency did not intend to submit any other exhibits or call any witnesses at the hearing. The charged employee indicated that he did not wish to call any witnesses or submit any documentation to the Board at the hearing. Thereafter, the parties reached an agreement on joint stipulations of fact to be presented at the hearing.7

On April 2, 2020, a hearing was convened by the Board on the separation proposal. The hearing was held telephonically, due to the CoVid 19 coronavirus pandemic, the President’s order to maximize the use of telework and the Governor of Virginia’s “stay at home” emergency order. At the start of the hearing, the Board advised the parties that it had determined that there was no need for a video-conferenced hearing because the parties had advised that they intended to offer no witness testimony. Neither the charged employee nor the Department objected to the use of a telephonic hearing process.

The Board found that a Top Secret security clearance is required for the employee’s position; therefore, the agency established that the charged employee failed to maintain a mandatory condition of employment. The Board concluded that the Department established cause for the separation on a single charge of Failure to Maintain a Condition of Employment and that separation of the charged employee will promote the efficiency of the Foreign Service.

3 According to the Principal Deputy Legal Adviser’s letter, “the Panel focused in particular on concerns relating to guideline I (‘Psychological Condition’). … [T]he Panel took note of the fact that [the charged employee] did not appear at the medical evaluation which [he] had agreed to undergo, [his] email of November 2, 2018, and [his] unwillingness during [his] appearance before the Panel to offer information that it could use to determine whether DS’s concerns had been mitigated.” The record does not reveal any additional information about the predicate for the security clearance suspension or revocation.

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Why ‘Lack of Candor’ Can Get Federal Employees in Real Trouble

Once a year, we ask for your support to keep this blog and your dedicated blogger going. So here we are on Week #7 of our eight-week annual fundraising. Our previous funding ran out in August 2020. We recognize that blogging life has no certainty, and this year is no exception.  If you care what we do here, please see GFM: https://gofund.me/32671a27.  We could use your help. Grazie!  Merci! Gracias!

According to OPM, “lack of candor”  focuses on an employee’s duty to be forthcoming in responses with regard to all facts and information in their possession. Frederick v. Justice, 52 MSPR 126, 133 (1991); Fargnoli v. Dept. of Commerce, 123 MSPR 330 (2016). 
Federal Times/Legal Matters cited the 1998 case of Lachance v. Erickson, 118 S.Ct. 753: “…. a unanimous U.S. Supreme Court decided that a federal agency may discipline an employee who lies or lacks candor to the agency regarding alleged employment-related misconduct, including falsely denying the offense, such that the agency can discipline the employee not only for the underlying act of misconduct, but also for the lie or lack of candor. It’s the latter (the lie) that almost always results in a more severe penalty than if the employee simply admitted the underlying wrongdoing.” Read in full here.
A most public “lack of candor’ case that made relatively recent news is here.
Below is an excerpt from FSGB Case No. 2014-049. This case is notable because the grievant is a tenured DS agent who got in trouble, among other things, for not being “entirely forthcoming,” the fact that the agency has access to private emails, and how each instance of not being forthcoming becomes a specification in the charge.
HELD: The Department of State carried its burden to prove by a preponderance of the evidence that grievant, a tenured Diplomatic Security Officer, committed the acts with which he is charged. The Board found that a 10-day suspension without pay was reasonable. The grievance appeal was denied.
OVERVIEW: Grievant, a tenured Diplomatic Security (DS) Agent, appeals the Agency’s denial of his grievance in which he sought a reduction of a 10-day suspension, the penalty he received for multiple disciplinary charges. The original charges included: (1) improper personal conduct; (2) misuse of government resources; (3) lack of candor; (4) poor judgment; and (5) failure to follow regulations. Although the deciding official declined to find grievant liable for Charge 4 and although grievant takes responsibility for Charges 2, 3, and 5, he denies the misconduct alleged in Charge 1 and the reasonableness of the penalty. The deciding official determined that the 10-day suspension originally proposed remained reasonable even though one charge was not sustained. The Board concluded that agency satisfied its burden of proving that grievant committed the improper personal conduct as charged, i.e. groping a female, subordinate employee (grabbing her buttocks) at a Marine House toga party in The Board also concluded that the 10-day suspension was reasonable under the totality of the Douglas analysis and that the agency was not obligated to reduce the penalty originally proposed merely because one of the charges was not sustained.

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New Biden Nominations: DGHR, EUR, NEA, AF, IO, DS and CSO

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On April 15, President Biden announced his intent to nominate the following individuals for top positions in the geographic and functional bureaus of the State Department.
  • Marcia Stephens Bloom Bernicat to be Director General of the Foreign Service and the Chair of the Board of the Foreign Service (DGHR)
  • Karen Erika Donfried to be Assistant Secretary of State for European and Eurasian Affairs (EUR)
  • Barbara A. Leaf to be Assistant Secretary of State for Near Eastern Affairs (NEA)
  • Mary Catherine Phee to be Assistant Secretary of State for African Affairs (AF) and Member of the Board of Directors of the African Development Foundation (AFD)
  • Michele Jeanne Sison to be Assistant Secretary of State for International Organization Affairs (IO)
  • Gentry O. Smith to be Assistant Secretary of State for Diplomatic Security (DS)
  • Anne A. Witkowsky to be Assistant Secretary of State for Conflict and Stabilization Operations (CSO) and Coordinator for Reconstruction and Stabilization
For the geographic bureaus, President Biden previously nominated Ambassador Brian Nichols to be A/S for Western Hemisphere Affairs (WHA) and Ambassador Daniel J. Kritenbrink for  the East Asian and Pacific Affairs (EAP). With these new nominees for EUR, NEA, AF and IO, we are now waiting for just SCA to complete the line up under the Under Secretary for Political Affairs (P). The nominee for “P”, Victoria Nuland had her confirmation hearing before the SFRC on 4/15/21.
If all these nominees are confirmed, it looks like at the regional bureaus, Foggy Bottom will have  one non-career appointee (EUR), one retired FS (NEA), four active career FS (WHA, EAP, AF, IO) , and one as yet unknown for SCA. During the previous administration, these top geographic bureau positions were all filled with non-career appointees (the assistant secretary for the AF bureau was a retired FS). This is a hopeful start.
The WH released the following brief bio:
Marcia Stephens Bloom Bernicat, Nominee for Director General of the Foreign Service and the Chair of the Board of the Foreign Service

Marcia Bernicat, a career member of the Senior Foreign Service, Class of Minister-Counselor, currently serves as the Senior Official for Economic Growth, Energy and the Environment and as Acting Assistant Secretary for the Bureau of Oceans, International Environmental and Scientific Affairs of the Department of State.  Previously, she was the U.S. Ambassador to Bangladesh, U.S. Ambassador to Senegal and Guinea Bissau, and Deputy Assistant Secretary in the Bureau of Human Resources at the State Department.  She also served as Deputy Chief of Mission at the U.S. Embassies in Barbados and Malawi and as Principal Officer of the U.S. Consulate General in Casablanca, Morocco. Bernicat earned a Master of Science in Foreign Service Degree at Georgetown University and a Bachelor’s Degree at Lafayette College.  Her foreign languages are French, Hindi and Russian and she is a recipient of the Secretary of State’s Distinguished Service Award.

Karen Erika Donfried, Nominee for Assistant Secretary of State for European and Eurasian Affairs

Dr. Karen Donfried currently serves as President of the German Marshall Fund of the United States (GMF).  Before assuming this position in April 2014, Donfried was the Special Assistant to the President and Senior Director for European Affairs at the National Security Council.  Prior to that, she served as the National Intelligence Officer for Europe on the National Intelligence Council.  She first joined GMF in 2001 after having served for ten years as a European specialist at the Congressional Research Service.  When she was at GMF from 2005 to 2010, she first served as senior director of policy programs and then as executive vice president.  From 2003-2005, she worked in the Policy Planning office at the U.S. Department of State, handling the Europe portfolio.  Donfried has written and spoken extensively on German foreign policy, European integration, and transatlantic relations.  She is a Senior Fellow at Harvard University’s Center for European Studies.  The King of the Belgians awarded the Commander of the Order of the Crown to her in 2020 and she became an Officer of the Order of Merit of the Italian Republic in 2018.  Additionally, she received the Cross of the Order of Merit from the German Government in 2011 and a Superior Service Medal from the National Intelligence Community in 2014.  She is a member of the Council on Foreign Relations and the American Council on Germany.  Donfried has a Ph.D. and MALD from the Fletcher School of Law and Diplomacy at Tufts University, a Magister from the University of Munich, Germany and holds a B.A. from Wesleyan University.  She is fluent in German. 

Barbara A. Leaf, Nominee for Assistant Secretary of State for Near Eastern Affairs

Barbara A. Leaf is the Special Assistant to the President and Senior Director for Middle East and North Africa Affairs on the National Security Council.  Prior to this, she was the Ruth and Sid Lapidus Fellow at the Washington Institute for Near East Policy and Director of the Beth and David Geduld Program on Arab Politics.  She previously served as the U.S. Ambassador to the United Arab Emirates, Deputy Assistant Secretary of State for the Arabian Peninsula in the Bureau of Near Eastern Affairs as well as Deputy Assistant Secretary of State for Iraq at the State Department.  She directed the U.S. Provincial Reconstruction Team in Basrah, Iraq and was the Department’s first Director of the Office of Iranian Affairs.  Leaf also has served in Rome, Sarajevo, Paris, Cairo, Tunis, Jerusalem and Port-au-Prince.  She speaks Arabic, French, Italian and Serbo-Croatian.  Leaf has a Bachelor’s degree from the College of William and Mary and a Master’s degree from the University of Virginia. 

Mary Catherine Phee, Nominee for Assistant Secretary of State for African Affairs and to be a Member of the Board of Directors of the African Development Foundation

Mary Catherine Phee, a career member of the Senior Foreign Service with the rank of Minister Counselor, currently serves as Principal Deputy Special Representative for Afghanistan Reconciliation at the State Department.  She was U.S. Ambassador to South Sudan from 2015 to 2017.  Previously, she served as Deputy Chief of Mission at the U.S. Embassy in Addis Ababa, Ethiopia, and as Chief of Staff in the Office of the Special Envoy for Sudan and South Sudan.  She also was the Acting Assistant Secretary of State for International Organization Affairs and Deputy Security Council Coordinator at the U.S. Mission to the United Nations, handling UN engagement in Africa for both portfolios.  Earlier in her career, Phee served as Director for Iraq at the National Security Council and as Senior Civilian Representative of the Coalition Provisional Authority to Maysan Province, Iraq.  She began her career in Amman, Jordan and also worked at U.S. Embassies in Cairo, Egypt and Kuwait City, Kuwait.  She received the Robert C. Frasure Memorial Award for conflict resolution and peacemaking, the James A. Baker, III-C. Howard Wilkins, Jr. Award for Outstanding Deputy Chief of Mission, the Secretary of Defense Meritorious Civilian Service Award, the Order of the British Empire Award, and a Presidential Rank Award.  She speaks Arabic.  A native of Chicago, she is a graduate of Indiana University and holds a Master’s degree from the Fletcher School of Law and Diplomacy at Tufts University. 

Michele Jeanne Sison, Nominee for Assistant Secretary of State for International Organization Affairs

Michele Jeanne Sison, a five-time Ambassador, has extensive experience in advancing U.S. interests through multilateral diplomacy.  Sison has served as U.S. Ambassador to Haiti since 2018.   She also served as Deputy Representative of the United States to the United Nations (with the rank of Ambassador) from 2014 to 2018, where she helped build global coalitions to counter transnational threats to peace and security and advocated for a more effective, efficient, and accountable UN and multilateral system.  She also has long experience with UN peacekeeping and the UN entities responsible for development, humanitarian relief, and human rights in the field.  Previously, she served as U.S. Ambassador to Sri Lanka and Maldives, U.S. Ambassador to Lebanon, U.S. Ambassador to the United Arab Emirates, Assistant Chief of Mission in Iraq, Principal Deputy Assistant Secretary of State for South Asian Affairs, and Deputy Chief of Mission in Pakistan.  Her earlier tours include India, Cote d’Ivoire, Cameroon, Benin, Togo, Haiti, and Washington.  Sison received a B.A. from Wellesley College and is the recipient of numerous State Department awards, including the Distinguished Service Award and the Presidential Rank Award of Meritorious Service.  She holds the personal rank of Career Ambassador, the highest rank in the U.S. Foreign Service.

Gentry O. Smith, Nominee for Assistant Secretary of State for Diplomatic Security

Gentry O. Smith leads The Gentry Group, LLC, a security consulting firm.  A former career member of the Foreign Service, Class of Minister-Counselor, he served as the Director of the Office of Foreign Missions, the Deputy Assistant Secretary for Countermeasures in the Bureau of Diplomatic Security, and the Director of Physical Security Programs in the Bureau of Diplomatic Security at the State Department.  Other State Department postings include assignments as Regional Security Officer at the U.S.  Embassy in Tokyo, Japan, Deputy Regional Security Officer at the U.S. Embassy in Cairo, Egypt, and Regional Security Officer at the U.S. Embassy in Rangoon, Burma.  Smith also served as a Special Agent in the Criminal Investigative Liaison Division, Special Agent on the Secretary of State Protection Detail, and Assistant Regional Security Officer at the U.S. Embassy in Cairo.  He earned a B.A. in political science from North Carolina State University in Raleigh, North Carolina.

Anne A. Witkowsky, Nominee for Assistant Secretary of State for Conflict and Stabilization Operations and Coordinator for Reconstruction and Stabilization

Anne A. Witkowsky most recently served as the Co-Director of the Task Force on U.S. Strategy to Support Democracy and Counter Authoritarianism, a partnership of Freedom House, the Center for Strategic and International Studies, and the McCain Institute.  She has served as Deputy Assistant Secretary for Stability and Humanitarian Affairs in the Office of the Undersecretary of Defense for Policy at the Pentagon and as the Acting Principal Deputy Assistant Coordinator, and Deputy Assistant Coordinator, in the State Department’s Bureau of Counterterrorism.  Witkowsky was a Senior Fellow at the Center for Strategic and International Studies in Washington, DC and earlier served as Director for Defense Policy and Arms Control on the National Security Council Staff at the White House.  She earned a Master in Public Administration degree from the John F. Kennedy School of Government, Harvard University and a Bachelor’s degree from Yale. She has been recognized with a number of awards including the Secretary of Defense Medal for Outstanding Public Service and the Department of Defense Medal for Distinguished Civilian Service.

 

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FSO Jennifer Davis’ Security Clearance Revocation, a Very Curious Leak

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On April 9, Politico published an odd piece about the revocation of a Foreign Service officer’s security clearance.

“A top aide to the U.S. envoy to the United Nations has stepped aside after her security clearance was revoked, according to two people familiar with the matter.

Jennifer Davis, the de facto chief of staff to Amb. Linda Thomas-Greenfield, is a career Foreign Service officer who has worked at the State Department for 18 years, with previous postings in Colombia, Mexico and Turkey.”

The report says that the revocation came after a three-year investigation by the Bureau of Diplomatic Security. Davis served a three year tour as Consul General in Istanbul, Turkey from August 2016 to August 2019.

“In that role, she had a conversation with a reporter, Amberin Zaman of the Middle Eastern-focused news outlet Al-Monitor, about the problem of local staff being hassled and detained by Turkish authorities, according to the person close to her.

Zaman reported at the time that the Turkish pressure campaign was likely to expedite U.S. government plans to use visa sanctions to block certain Turkish officials from visiting the U.S. and said that a list of such officials had been drafted, citing “sources close to the Donald Trump administration.” Not only did she speak to Zaman with the knowledge and at the direction of her superior, according to the person close to Davis, the information she shared was “not at all sensitive” and was declassified soon after their discussion.”

The report further states that Davis spoke to Zaman “with the knowledge and at the direction of her superior” citing a person close to Davis. And that the information Davis shared “was not at all sensitive”  and it was reportedly declassified soon after the discussion occurred.
Security clearance revocations do not make news very often. The investigating office is often mum about the revocation and the subject of the security clearance investigation/revocation is often not able to talk about it. Unless they write about it. Or unless officials leaked it to the press, of course.
At least three people spoke to Politico: the “two people familiar with the matter” and “a person close to Davis who said that “Davis will “strongly contests the determination” and is “going to aggressively appeal this decision as quickly as possible.”
Nearly 1.4 million people hold “top secret” clearance. So why is the Davis case news?  We do not know, as yet, who stands to gain by the public revelation of this revocation. But see, this is making us well, perplexed and very curious.
Let’s try and see a public timeline of what happened prior to the reported revocation.
October 2017: In the fall of 2017, Turkey arrested a local national working at the US Consulate General Istanbul.
The U.S. Ambassador to Turkey during the first two arrests of US Mission employees (one in Adana, one in Istanbul) was John Bass who served from October 2014 to October 2017. Prior to the conclusion of his tenure in Turkey, the US Mission suspended visa services, a specific action taken by the U.S. Government over the Turkish Government’s treatment of U.S. Mission employees in Turkey. Ambassador Bass issued a statement about the arrests of two veteran employees of the U.S. Government in Turkey.
October 2017 – Chief of Mission to Chargé d’Affaires in Turkey
Philip Kosnett assumed the duties of Chargé d’Affaires in October 2017 upon the conclusion of Ambassador John Bass’ assignment in Turkey. He began his assignment as Deputy Chief of Mission at the U.S. Embassy in Ankara, Turkey in July 2016.  In July 2018, he was nominated by Trump to be U.S. Ambassador to Kosovo.  He was confirmed by the U.S. Senate in September 2018, and presented his credentials in Pristina in December 2018. That’s still his current assignment. Kosnett’s tenure as Chargé d’Affaires at US Mission Turkey was from October 2017 to on/around July 2018.
November 2017: Michael Evanoff was confirmed as Assistant Secretary of State for Diplomatic Security under the Trump Administration. He served in that capacity until his resignation in July 2020.
December 2017: U.S., Turkey mutually lift visa restrictions, ending months-long row
January 2018: A second local employe of U.S. Consulate General Istanbul was arrested.
On January 31, 2018, USCG Istanbul local employee Nazmi Mete Cantürk turned himself in to Turkish authorities and was placed under house arrest.  It was previously reported that in 2017, his wife and child were detained Oct. 9 in the Black Sea province of Amasya for alleged links to the Gülen network. He was the third USG employee arrested by the Government of Turkey.
The two arrests in Istanbul followed a previous arrest of a local employee at the U.S. Consulate in Adana in February 2017. Turkish authorities detained Hamza Uluçay, a 36-year veteran Turkish employee of the U.S. Consulate on unsubstantiated terrorism charges.
February 2018: Journalist Amberin Zaman published an article via Al-Monitor.
On February 1, 2018, a day after a second Consulate employee was put under house arrest by the Turkish Government,  Zaman published “Turkey resumes pressure on US Consulate staff” for Al-Monitor. This  was the article that reportedly spurned the investigation. Excerpt below:

“Turkey has reneged on its pledge to not hound locally employed staff at US missions on its soil, with police interrogating a Turkish citizen working for the US Consulate in Istanbul yesterday, Al-Monitor has learned. The move could likely accelerate the US administration’s plans to apply targeted visa sanctions against Turkish officials deemed to be involved in the unlawful detentions of US Consulate staff, provided that Secretary of State Rex Tillerson gives final approval, sources close to the Donald Trump administration told Al-Monitor.”

March 2018: Rex Tillerson, the 69th Secretary of State was fired.
A few weeks after the publication of the Zaman article, Rex Tillerson was fired from the State Department and left Foggy Bottom for the last time on March 22, 2018. His inner circle staffers followed him to the exit by end of that month. Also see Trump Dumps Tillerson as 69th Secretary of State, to Appoint CIA’s Pompeo as 70th SoS.

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Havana Syndrome Questions @StateDept Refuses to Answer

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The questions below were sent to the State Department on March 16, 2021 for Ambassador Pamela Spratlen, the newly designated  Senior Advisor to the Havana Syndrome Task Force (officially called  the Health Incident Response Task Force (HIRTF) .  She was appointed with direct reporting responsibility to the Department’s senior leadership. The State Department’s media arm confirmed receipt of these questions on March 17.
To-date, the State Department has not responded to these questions despite our follow-up. It looks like the PA leadership has fed our questions to their email-chewing doggo. Poor bow wow!!! PA folks still sore about this, hey? Inside @StateDept: Leaked Cable Provides Guidance For ‘America First’ Cost Savings Initiatives. Oh, dear!
Anyways. If you’re the unofficial kind and have some answers to these questions, please send your howlers here or via Twitter and we’ll get back to you. We’ll write as many follow-up posts as needed.

 

Task Force: 

—1. The State Department spokesperson said that there is an individual on the Health Incident Response Task Force (HIRTF) who is responsible solely for engaging with those who may have been victims of these incidents. The individual was not publicly named. I understand that the 41 recognized victims apparently also have no idea who this individual is or who are the members of the task force. Shouldn’t the State Department be transparent and name all the people on the task force? How do potential victims, (including spouses and foreign nationals) contact the individual tasked with engaging with them?
—2. The ARB Cuba report clearly demonstrates the botched response to these incidents in Havana. It was also an interim report. In addition, we have received allegations that the Department’s response to the incidents in China was much worse. Are there plans to convene an ARB for China? Is there a plan to expand the time frame and places of possible incidents covered in this investigation? We are aware of at least one case that occurred much earlier than December 2016. How many reported cases of mystery illness were excluded by State? With so many varied symptoms, and many unknowns, is it fair to rule out anyone without the full constellation of symptoms? How did the State Department determine that Patient Zero, widely reported to have been injured in December 2016, is really Patient Zero and not Patient Two, or Patient 10 or Patient 20? 
—3. What is the status of the implementation of the ARB Cuba recommendations?
—4. Can you confirm that the mystery illness has been reported domestically (WH staffer in Arlington, a couple at UPENN)?
—5. There were employee/s who suffered grievous treatment in the aftermath of these incidents (e.g. alleged retaliation, uncovered medical expenses). Is Amb Spratlen willing to meet with employees suffering from  medical and bureaucratic chaos brought about by these incidents?

 

National Academy of Sciences (NAS) Report:

—6. I recognized that there is new leadership at State but the HIRTF has been there since 2018. Why did State sit on the NAS report of August 2020 and only released it in December 2020? It is an unclassified report, so national security concerns should not have been an issue.
—7. Has the State Department accepted that the illness is due to microwave exposure? If so, how are employees protected from the next attacks? Why hasn’t State fully implemented the recommendations in the NAS report?

Bureau of Diplomatic Security (DS) and Bureau of Medical Services (MED)

—8. Why is Diplomatic Security still acting (and conducting searches in apartments) as if the cause could be toxic chemicals when NAS ruled out chemical exposure as a cause and pointed to the reported signs, symptoms and observations as consistent with the effects of directed, pulsed radio frequency (RF) energy?
—9. Why is Diplomatic Security still conducting briefings that “only one person was found by State/MED to be affected in China” when USG has officially diagnosed 15?
—10. How many employees who complained of unexplained illness to MED or DS were told to undergo psych evaluations or told to “get their act together” by the bureaus tasked with protecting their welfare? How many mystery illness were reported globally by employees, family members and local employees before State took them seriously?

 

3 FAM 3660 Implementation

—11. 3 FAM 3660 has been in the Foreign Affairs Manual since May 2020 but we’ve heard reports that State is blocking implementation of the prescribed benefits for employees from other agencies. Can you discuss where the responsibility for adjudicating cases under the provisions of 3 FAM 3660 falls? What is the processing time for requests made under these regulations for State and non-State employees? 
—12. There are numerous employees and family members as you know who still have symptoms but because they are not in the group of 41, they do not qualify for the 3 FAM 3660 provisions and therefore are on their own.  What are the treatment options for the hundreds of employees/family members who were medevaced but were not enrolled like the 41 cases in the UPenn study and designated by Department of Labor to get workers compensation benefits?
—13. How many foreign nationals connected with USG missions/residences where the attacks occurred reported similar symptoms as USG American employees and family members? What support and treatment options were available to them? 
—14. As you know, under 3 FAM 3660, a covered employee is an employee of the Department of State who, on or after January 1, 2016, becomes injured by reason of a qualifying injury and was assigned to a duty station in the Republic of Cuba, the People’s Republic of China, or another foreign country as designated by the Secretary of State. What other countries have been designated by the Secretary of State under 3 FAM 3666 to-date?  
—15. Members of the 41 officially diagnosed say State has caused irreparable harm with a “see no evil” response and just wants the problem to go away. Do you recognize the harm of State’s botched past response and lack of transparency?
—16. A” being the highest and “F” being failing, how would you grade the previous State Department leadership’s response to the health incidents?

Submitted Questions:

 –17.  Why not expand the mandate of Ambassador Spratlen to include instances of previous microwave attacks, since those episodes were handled so badly by the State Department? Here is a little background: https://shoeone.blogspot.com/2013/09/moscow-microwaves.html

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Related posts:

 

 

@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 … “

 


 

 

Former FS Employee and Spouse Sentenced For Counterfeit Goods Trafficking

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On December 20, 2019, we blogged this: @StateDept Employee and Spouse Indicted for Trafficking in Counterfeit Goods from U.S. Embassy Seoul.  On March 18, 2021, USDOJ announced that the former employee and his spouse were sentenced for their roles in a conspiracy to traffic hundreds of thousands of dollars in counterfeit goods through e-commerce accounts operated from State Department computers at the U.S. Embassy in Seoul, Republic of Korea. Below via USDOJ:

Former State Department Employee Sentenced to Prison for Trafficking in Counterfeit Goods from U.S. Embassy

A former U.S. Department of State employee and his spouse were sentenced today for their roles in a conspiracy to traffic hundreds of thousands of dollars in counterfeit goods through e-commerce accounts operated from State Department computers at the U.S. Embassy in Seoul, Republic of Korea.
Gene Leroy Thompson Jr., 54, and Guojiao “Becky” Zhang, 40, pleaded guilty to one count of conspiracy to traffic in counterfeit goods on Dec. 20. 2020. Thompson Jr. was sentenced to 18 months in prison and three years of supervised release. Zhang was sentenced to three years of supervised release, the first eight months of which will consist of home confinement. Thompson Jr. and Zhang were also ordered to forfeit a combined total of $229,302.
According to court documents, Thompson Jr. was an Information Programs Officer employed by the Department of State at the U.S. Embassy in Seoul, Republic of Korea, a position that required him to maintain a security clearance. Zhang resided with him in Seoul. Between September 2017 and December 2019, Thompson Jr. and Zhang sold counterfeit goods on a variety of e-commerce platforms. Thompson Jr. used his State Department computer at the embassy to create numerous e-commerce accounts, including additional accounts under aliases to continue the conspiracy and avoid detection after several e-commerce platforms suspended the couple’s other accounts for fraudulent activity. Zhang took primary responsibility for operating the accounts, communicating with customers, and procuring merchandise to be stored in the District of Oregon. Thompson Jr. and Zhang also directed a co-conspirator in the District of Oregon to ship items to purchasers across the United States.
Acting Assistant Attorney General Nicholas L. McQuaid of the Justice Department’s Criminal Division; Acting U.S. Attorney Scott Erik Asphaug of the District of Oregon; and Assistant Director Ricardo Colón of the U.S. Department of State’s Diplomatic Security Service (DSS) made the announcement.
The case was investigated by the DSS Office of Special Investigations with assistance from the U.S. Postal Inspection Service. The case is being prosecuted by Senior Counsel Frank Lin of the Criminal Division’s Computer Crime and Intellectual Property Section, Trial Attorney Jay Bauer of the Criminal Division’s Human Rights and Special Prosecutions Section, and Assistant U.S. Attorney Amy Potter of the District of Oregon.

 


 

 

USA v. Raymond: Court Issues Protective Order Pertaining to Classified Information

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Back in October, we blogged about ex-USG employee Brian Jeffrey Raymond who was called an “experienced sexual predator,” and ordered removed to D.C.  The Motion for Pre-Trial Detention in this case says that the government’s investigation has revealed 22 apparent victims thus far – the initial sexual assault victim plus 21 additional victims found on the defendant’s devices and in his iCloud. And this individual reportedly had taken over 10 polygraphs during his career. 
Court records of February 9 indicate that the Preliminary Hearing will  continue on 3/26/2021 at 11:30 AM in Telephonic/VTC before Magistrate Judge Zia M. Faruqui in the U.S. District Court for the District of Columbia.
On February 18, a “Protective Order setting forth procedures for handling confidential material; allowing designated material to be filed under seal as to Brian Jeffrey Raymond” was issued by the Court.
Uh-oh!
On March 1, 2021, the Court issued an order granting a consent motion for Protective Order Pursuant to Section 3 of the Classified Information Procedures Act by USA as to Brian Jeffrey Raymond. Excerpt:
The case will involve information that has been classified in the interest of national security

“The Court finds that this case will involve information that has been classified in the interest of national security. The storage, handling, and control of this information will require special security precautions mandated by statute, executive order, and regulation, and access to this information requires appropriate security clearances and need-to-know, as set forth in Executive Order 13526 (or successor order), that has been validated by the government.2 The purpose of this Order is to establish procedures that must be followed by counsel and the parties in this case. These procedures will apply to all pretrial, trial, post-trial, and appellate matters concerning classified information and may be modified from time to time by further Order of the Court acting under its inherent supervisory authority to ensure a fair and expeditious trial.”

Any classified information provided to the defense…

“Any classified information provided to the defense and the defendant by the government, or to the defense by the defendant, is to be used solely by the defense and solely for the purpose of preparing the defense. The defense and the defendant may not disclose or cause to be disclosed in connection with this case any information known or reasonably believed to be classified information except as otherwise provided herein.”

For Cleared Counsel Only

“The government may disclose some information to defense counsel only. This information shall be clearly marked “FOR CLEARED COUNSEL ONLY.” For any such information, defense counsel may not confirm or deny to the defendant any assertions made by the defendant based on knowledge the defense may have obtained from classified information, except where that classified information has been provided to the defendant pursuant to this Order. Any classified information the defense discloses to or discusses with the defendant in any way shall be handled in accordance with this Order and the attached Memorandum of Understanding, including such requirements as confining all discussions, documents, and materials to an accredited SCIF.”

Defendant’s Memorandum of Understanding

“As a former U.S. government employee who had access to classified information, the defendant has a continuing contractual obligation to the government not to disclose to any unauthorized person classified information known to him or in his possession. The government is entitled to enforce that agreement to maintain the confidentiality of classified information, and the defendant must sign the Memorandum of Understanding. The defendant is subject to this Court’s authority, contempt powers, and other authorities, and shall fully comply with the nondisclosure agreements he has signed, this Order, the Memorandum of Understanding, and applicable statutes.”

The order includes provisions for a secure area for the defense, filing of papers by the defense, filing of papers by the USG, record and maintenance of classified filings, the Classified Information Procedures Act, access to classified information, and special procedures for audio recordings.
The footnotes includes notation that “The Court understands that the government may move for a supplemental protective order depending on the nature of additional information that is determined to be discoverable” and that  “Any individual to whom classified information is disclosed pursuant to this Order shall not disclose such information to another individual unless the U.S. agency that originated that information has validated that the proposed recipient possesses an appropriate security clearance and need-to-know.”

Previously, on December 15, 2020, the FBI released the following announcement seeking potential victims in their Brian Jeffrey Raymond investigation.

Seeking Potential Victims in Brian Jeffrey Raymond Investigation

The FBI and the U.S. Department of State’s Diplomatic Security Service are asking for the public’s help in seeking potential victims of and additional information about an alleged sexual offender, Brian Jeffrey Raymond.

Raymond, 44, was formerly a U.S. government employee, and he traveled extensively overseas, including in Mexico and Peru. He speaks both Spanish and Mandarin Chinese. Raymond had been living in Mexico from August 2018 to May 2020.

Raymond was charged in connection with an instance in which he allegedly met a victim on a dating application and had videos and photographs of the victim showing her unconscious and partially undressed.

Raymond was arrested in La Mesa, California, on October 9, 2020. The investigation is ongoing and has revealed photographs and videos of additional adult women on Raymond’s devices and electronic accounts.

If you believe you have been a victim of Brian Jeffrey Raymond, the FBI requests that you fill out this secure, online questionnaire. The questionnaire will assist law enforcement with the investigation.

If you believe you or someone you know may have information regarding Brian Jeffrey Raymond, please complete this same questionnaire, or you may email ReportingBJR@fbi.gov or call 1-800-CALL-FBI.

The FBI is legally mandated to identify victims of federal crimes it investigates. Identified victims may be eligible for certain services and rights under federal and/or state law.

Questionnaire

Additional Resources

 

To-date, we have not/not been able  to find a press release or DSS articles from Diplomatic Security regarding this alleged sexual offender with apparently extensive overseas travel in Mexico and Peru.
Neither US Mission Mexico nor US Embassy Peru carries the FBI press release on its website in English or Spanish seeking potential victims in this case. The USG is seeking potential victims, is it not?

 


 

 

PSA: Things You Cannot Send Via Diplomatic Post Offices

 

According to the Foreign Affairs Manual, 39 U.S.C. 413 authorizes the United States Postal Service (USPS) to establish U.S. Post Office branches at U.S. diplomatic missions abroad.  It also authorizes the Department of State to enter into an agreement with USPS to perform postal services at such branch post offices through personnel designated by the Department of State.  The Tripartite Agreement between the Department of State, Department of Defense, and USPS exercises that authority, providing a framework for the establishment and support of Diplomatic Post Offices (DPOs).
The DPO must be used only for personal mail.  Official mail, including official supplies, is not permitted in the DPO.  The mailing of dangerous goods via the DPO may present serious dangers to aircraft and passengers, and/or cause serious diplomatic concerns with host nations. 
IATA Dangerous Goods Regulations, Section 9, requires DPM (Diplomatic Pouch and Mail Division) to report to the appropriate authorities of the State when undeclared or misdeclared dangerous goods are discovered in cargo or mail.  Incidents discovered anywhere in the USPS supply chain must be reported to DPM via a Postal Offense Report in ILMS DPO.  DPM will notify the United States Postal Inspection Service (USPIS), the Bureau of Diplomatic Security (DS), and the Federal Aviation Agency (FAA).
Items known as hazardous, restricted, or perishable are prohibited for dispatch by DPO from the United States to either abroad, or from abroad to the United States, or from post to post (consult USPS Publication 52). 
See some of the restricted items below (expanded list is available via 14 FAM Exhibit 761.4 here):

Human remains are only authorized when sent via Priority Mail Express International Service (NOTE:  Express mail is not authorized to/from a DPO);

Alcoholic beverages (e.g., beer, wine, liquor, any liquid containing alcohol);

Electronic Cigarettes (e-Cigarettes).

Agriculture products (e.g., plants, seeds, bulbs, soil, fertilizer, plant food, wood chips, fruits, etc.);

Animals:  Endangered species products (e.g., lab samples, insects, etc.);

Compressed gases and aerosols (e.g., hairspray, cylinders containing residual pressure, inhalers for asthma);

Flammable liquids (e.g., nail polish and remover, hand sanitizer, lens wipes, medication containing alcohol, perfume, or cologne);

Flammable solids (e.g., safety matches);

Incendiary materials such as road flares, cigarette lighters, self-starting charcoal, MRE meals with heaters, etc.;

Items for resale (e.g., Girl Scout cookies, magazines, etc.) per 14 FAM 742.4-3;

Household Effects (HHE) or Unaccompanied Baggage (UAB) per USPS Postal Bulletin restriction N, and 14 FAM 761.4-4, Private Property in the DPO;

Firearm/ammunition/explosive devices (e.g., blanks, caps, shells, simulated ammo);

Explosives or inert training devices resembling explosives;

Firearms and objects resembling weapons or dangerous objects (e.g., air rifles, paintball guns, training weapons, weapons and/or gun parts made/fashioned by three-dimensional (3D) printers, etc.), per USPS Postal Bulletin restriction U4;

Weapons or items that resemble weapons (e.g., any spring-loaded knife (switchblade), tactical knives, fixed-bladed fighting/hunting knives, firearms, or components thereof, sling shots, bows, arrows, BB guns and pellet guns, firearms, throwing stars/spikes, ceremonial swords, toys closely resembling weapons, etc.).  NOTE:  Kitchen knives are permitted but highly discouraged; 

Per 14 FAM 310, for official supplies and equipment from the United States, the Department, the foreign affairs agencies and other U.S. Government civilian (i.e., non-DOD) agencies utilize the U.S. Despatch Agents and their Consolidated Receiving Point (CRP) Programs for shipment.
Anybody knows the restrictions for med flights?

 


 

 

Three Current/Former @StateDept Employees Float to the Top in Crowded Bad News Cycle

/Updated 7:28 pm EST with comment from State Department.

Ugh! Three in less than three weeks!
Three current and former employees of the State Department are currently in the news. One case before the court is a political appointee arrested in connection with the January 6 insurrection.  Apparently, the individual was not happy with the accommodations at the D.C. jail.  After the charges were read, the charged individual reportedly asked the court if he could sleep where there are no cockroaches everywhere. Via WaPo:
“I wonder if there’s a place where I can stay in detention where I don’t have cockroaches crawling over me while I attempt to sleep…I mean, I really haven’t slept all that much, your honor. It would be nice if I could sleep in a place where there were not cockroaches everywhere,” Klein said.
Two other cases involved career employees. We see that there are already calls for an investigation or firing of these employees on social media. Note that unlike political appointees, career employees have certain job protections (political appointees only need a big dog to look after them, see IO).
We’ll have to wait and see what happens with these cases.  The State Department (with few exceptions)  typically will not publicize or even elaborate on personnel actions, but it is likely that any actions possibly resulting from these cases could end up in the Foreign Service Grievance System, as provided by regulations. Cases that make news, even those noted for notoriety often take a while to go through the system. Exceptions are for cases where there is a criminal offense and an individual is charged; there is no grievance case then, only a court case.
Former political appointee Federico Klein was arrested in relation to the January 6 insurrection.
On March 4, a former political appointee at the State Department Federico Klein was arrested in connection with the January 6 insurrection. According to the Statement of Facts by an FBI agent:
Based upon the information provided by Tipster 1 and Witness 1, your affiant determined that KLEIN had been an employee of the United States Department ofState (DOS) on January 6, 2021. KLEIN resigned his position on January 19, 2021. You affiant also learned that, on January 6, 2021, KLEIN possessed a Top Secret security clearance that had been renewed in 2019.
On February 10, 2021, your affiant and a DOS Diplomatic Security Special Agent interviewed an identified individual ( hereinafter“Witness 2 , former colleague of KLEIN’s at DOS. Witness 2 andKLEIN worked together from approximately February 2019 through January 2021. KLEIN was a Schedule- C political appointee who began working at DOS in 2017 in the office of Brazilian and Southern Cone Affairs. Witness 2 worked with KLEIN in-person multiple times per week throughout the time they worked together. Witness 2 reported that they had no animosity towards KLEIN. Witness 2 last saw KLEIN on January 19, 2021; Witness 2 recalled the specific date because it was prior to President Biden’s inauguration and KLEIN’s resignation from DOS. Your affiant showed Witness 2 several still photographs from a video posted on YouTube that depicted some of the events at the United States Capitol onJanuary 6 ,2021. Witness 2 positively identified KLEIN in the photos.
During the March 5 DPB,  State Department spokesperson Ned Price said: 
“… we do not have a specific comment on Mr. Klein. This is a matter that’s being investigated by the FBI, and they are the appropriate agency to answer questions specific to the charges. I believe the Department of Justice will be in a position to provide more details on those charges today.
Generally speaking, Mr. Klein served as a Schedule C presidential employee at the Department of State from 2017 until his resignation in January. He worked as a staff assistant with the transition team and as a special assistant in the Bureau of Western Hemisphere Affairs, but we of course wouldn’t comment on any pending criminal charges.”

Diplomatic Security’s Nick Sabruno made it to CNN, and not/not in a good way:
On March 4, CNN reported that Nick Sabruno, a top State Department diplomatic security official in Afghanistan was removed from his role for declaring the “death of America” and making racist comments about Kamala Harris in a post on his Facebook page when Trump lost the presidential election. In November 2020.  Uh, SDO fella, try not to pat your back too hard, you might break it!
“I think it is completely out of line. And I am damn proud of the steps we took to remove him from post pretty damn quickly,” said a State Department official familiar with the matter.

Foreign Service Officer Fritz Berggren made the news here, there, and in Israel:
On February 26, Politico’s Nahal Toosi reported that FSO  Fritz Berggren for several years has been publicly calling for the establishment of Christian nation-states, warning that white people face “elimination” and railing against Jews as well as Black Lives Matter and other social movements. He has a blog, and is on multiple social media platforms. He is big news in Israel and the Anti-Defamation League (ADL) has called for a full investigation. As of this writing, his blog remains up and appears to have regular updates.