Mr. Smith Writes to Washington, Goes to Bat For Local Staff in the Persian Gulf’s Unfair Labor Markets

Posted: 2:43 am ET
Updated: 10:17 am PT
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William R. Rivkin Award for Constructive Dissent by a Mid-Career Officer – Jefferson Smith, U.S. Embassy Kuwait

Jefferson Smith receives this year’s William R. Rivkin Award for Constructive Dissent by a Mid-Career Officer for his commitment to combatting unfair labor practices and his push for compensation reform for locally employed (LE) staff at posts in the Persian Gulf.

While posted to Kuwait, Management Counselor Smith observed that the nine embassies and consulates in the Persian Gulf region are staffed almost exclusively by third-country nationals (TCNs) who did not enjoy the rights of citizens and earned wages and benefits so low that they could not support their families. U.S. Embassy Kuwait employs more than 200 TCN men and women from 27 different nationalities—and employs no Kuwaitis because the U.S. government does not pay enough to attract them.

Mr. Smith gathered data, framed his arguments and then brought his views to a regional management officers’ conference, where he found allies and organized a regionwide approach. He then wrote a detailed, thoughtful cable to Washington, signed by the six regional ambassadors, proposing that the department should define a new standard for compensating its LE staff at posts employing a majority of TCNs in unfair labor markets.

In short, Mr. Smith challenged the department to lead—not just follow—local practice in these markets. All of his preparation and action had an effect: The under secretary for management approved a Public Interest Determination (a policy exception) to create housing and education allowances for LE staff, and moved U.S. Embassy Kuwait to the top of the list for the next tranche of wage increases. The result was an average 22-percent salary increase in addition to the new allowances.

Mr. Smith’s success in winning a more just compensation package for the LE staff of U.S. Embassy Kuwait was an important milestone that will serve as a model as he and others continue to fight for a more equitable way to compensate employees under these conditions.

Mr. Smith has served in Kuwait since 2014. As a management-coned Foreign Service officer, Mr. Smith has had opportunities to serve in consular, economic, political and management functions in four regional bureaus and six overseas assignments, including Kingston, Dar es Salaam (twice), Yaoundé, Dublin and Kuwait.

The annual award is named after Ambassador William R. Rivkin (1919–1967) who served as ambassador to Luxembourg, Senegal, and Gambia in the 1960s.  He is the father of Charles Rivkin, the current U.S. Assistant Secretary of State for Economic and Business Affairs, and the former U.S. Ambassador to France (2009-2013). Read A/S Rivkin’s Honoring Constructive Dissent: The William R. Rivkin Award on DipNote.

We should note that this is one of AFSA’s three dissent awards and is separate from the State Department “Dissent Channel.” The FAM precludes the use of the official Channel to address “non-policy issues (e.g., management or personnel issues that are not significantly related to substantive matters of policy).”


More on the Syria Dissent Channel Memo, and Chasing Down Concerning Rumors

Posted: 4:21 pm ET


According to Tuesday’s Daily Press Briefing, Secretary Kerry met yesterday with a small number, approximately 10 of the 51 signers of the Syria Dissent Channel memo for about a half an hour. The official spox said that “as you can imagine, the group is sizeable, so it wasn’t possible to meet with everybody. But he did have a collegial discussion with them this morning.” 

MR KIRBY: I’m – because the dissent channel memo and the contents of it are meant to be privately conveyed, so too I’m afraid are going to have to be the discussions around it. So I’m not going to be able to characterize the content of the Secretary’s conversation with them, because we want to respect the confidentiality of the process. It was, however – it was – I believe the Secretary came away feeling that it was a good discussion, it was worth having. He appreciated their views and just as critically their firm belief in their – in the opportunity that they have to express those views. And so they had a good 30-minute or more conversation.
MR KIRBY: Look, let me do this. So I can tell you a couple of things. He thanked them for expressing their views and for using the dissent channel. And he reaffirmed his strong belief in the value of the dissent channel, which we’ve talked about quite a bit here. So he thanked them for expressing their views, for using the dissent channel to do that. He made clear that he takes the dissent channel seriously and he took their views seriously, and also made clear that he read their message with sincerity. And, again, without talking about the specific detail of it, the Secretary also walked them through his own thought process with respect to this particular issue and the efforts that he’s been expending on this particular issue.
 I didn’t say and I won’t speculate as to discussions going forward with respect to what we’re doing in Syria or decisions that may or may not get made, either as a result of this message or as a result of ongoing routine discussions that have been had and continue to be had on alternatives. So I’m not going to speculate about the role that this message might play one way or the other.

But if you’re asking me, was this just a show for the Secretary, the answer is absolutely not. I mean, it – certainly he wanted to thank them and pay respect to the process because this is an important issue. But he also didn’t waste time in terms of hearing them out and asking questions and listening to their views and asking them to expound on them further. I mean, that’s the way this Secretary likes to conduct meetings and discussions and to inform himself. And again, I think he found the meeting useful in that regard. But I wouldn’t begin to speculate one way or another what this conversation today or that message did last week in terms of altering, changing any of the thinking going forward.  As I said last week, nobody is content with the status quo on the ground and the Administration has been looking at other options with respect to Syria for quite some time. This is not new. And yes, some of those options have included the potential for military initiatives. Again, that’s nothing new. So all these things —

The full DPB transcript is here.

Meanwhile, we had to chase down a couple of concerning rumors related to the dissent memo. We heard an allegation about Congressional pressure for a) the memo and b) the names of the signers.  Apparently, “word on the street” is that the Front Office of a certain geographical bureau is “providing names to the Hill in exchange for unblocking some nominations.” We must note that this bureau’s two chief of mission nominees had their confirmation hearing on Tuesday, June 21. There were no indications previously or at this time that these two nominations are subject to a Senate hold.

A State Department spokesperson, on background responded to our inquiry with the following:

“The dissent channel message has been provided to the Hill, but we did not include — nor will we — the names of the authors.”

We do not even want to imagine what a Congressional committee can do with the names or hearings in a partisan fight, in an election year.  So that’s one rumor debunked.

We also heard that the subject of this uproar, which appears to have SBU marking (“sensitive but unclassified”) has now been “retroactively classified.”

A State Department spokesperson, on background also told us that the cable was transmitted on the highside, and was classified confidential by the authors.”

Thanks X for debunking this other rumor.

The draft version published by the New York Times contains the SBU marking. It appears that the final version went out as “confidential” and was transmitted via the classified system.  What we still don’t know and may never know is how wide was the distribution of this “Dissent Channel” message and who purposely let this piglet out of the pen. We are still at a loss as to the leaker or leakers’ motive/s and perplexed at the calculation of sending a public message to a President with less than six months left in office.

Here are more links to read:

Here’s an early summer bonus for the “security diplomats”!




Burn Bag: Dissenting on Dissent

Via Burn Bag:

“Am I the only one who was appalled to see 51 FSOs, aka diplomats, aka the folks paid to figure out how to solve problems via negotiation and within the confines of international law, advocating a solution to the Syria crisis that does neither?  It seems the militarization of U.S. foreign policy is now complete.  Run, don’t walk to the nearest exit.”





Related posts:




When Policy Battles Break Out in Public — Holy Dissent, What a Mess!

Posted: 8:26 pm ET


Also see “Dissent Channel” Message on Syria Policy Signed by 51 @StateDept Officers Leaks NYT Publishes Draft Version of @StateDept Dissent Memo on Syria Without the Names of Signers from 


Here is the DPB for today, June 20 with the State Department spox answering questions about the “it’s good” response from Secretary Kerry — apparently, he wasn’t referring to the punctuation:

QUESTION: All right, let’s start with Syria. Earlier today, in one of the events that you just mentioned, the Secretary told our colleague Abigail that he had read the dissent channel memo —


QUESTION: — and that he – that it looked good to him, or he said something like, “It’s good,” and that he would —


QUESTION: — he was going to meet them. Can you elaborate at all?

MR KIRBY: Well, I don’t know how much more I can —

QUESTION: Well, what does he mean when he said it’s good?

MR KIRBY: I think – I think —

QUESTION: I mean, does that mean he agrees?

MR KIRBY: Well, I’m – again, I’m limited in what I can talk about in terms of the content of a dissent channel message. I think what the Secretary was referring to was the – that he did read it and that I – that he found it to be a well-written argument. But I’m not going to talk about the content. And as for meeting with the authors, he has expressed an interest in meeting with at least some of them. I mean, there’s a lot of them, so I don’t know that we’ll be able to pull off a single meeting with each and every one of them there, but he has expressed an interest in talking to them, and we’ll do that in due course.

QUESTION: So when you say it was a – what did you say, it was a well-presented argument?

MR KIRBY: What I – what I —

QUESTION: Well-written argument?

MR KIRBY: What I think the Secretary was referring to was that he read the paper and thought that it was – thought that it was well written, that it was good in that regard. I won’t talk to the content or his views of the content.

QUESTION: Okay. Well, without talking about what the actual content was, when you say it was well written or the argument is a good one, does that mean that he is prepared to – whatever it says, I’m not asking you about content – that he is prepared to make the case for those – for the positions that are articulated in this cable —

MR KIRBY: Well, two – two thoughts there. First —

QUESTION: — within the Administration?

MR KIRBY: Two thoughts there. First, as you know, the policy planning staff will be preparing a response, as is required. That response is not yet finished, and we don’t publicize – any more than we publicize the contents of dissent channel messages, we don’t publicize the response. But the response is being prepared. As for any espousal of the ideas before, during or after the fact of them being proffered in a dissent channel message, the Secretary very much keeps private his advice and counsel to the President on policy matters, and we’re going to – obviously, we’re going to respect that.

QUESTION: Well, since this became public last week, you will have noticed numerous articles, numerous – or numerous reports saying outright and suggesting strongly that, in fact, the Secretary agrees with many if not all of the points made in this cable. Are you not – are his comments today not indicative of that?

MR KIRBY: His comments today – I would not characterize his comments today as being indicative of a full-throated endorsement of the views in this particular dissent channel message. Again, I can’t speak to content. What I can tell you is a couple of things. One, obviously, whatever views, advice and counsel he presents to the President need to remain private, and they will. And so I won’t get into that. But then also, as I said Friday, he has made no bones about the fact that he is not content with the status quo in Syria. We are not content with the status quo in Syria. Too many people are dying, too many people are being denied basic life-sustaining material – food, water, medicine – and there’s been too little progress on the political track.

QUESTION: Yeah, but —

MR KIRBY: But if you also look – but if you also look at what else he said this morning – I mean, I know that Abigail shouted out a question, but if you look at the transcript of what else he had to say to those college students, he talked about how important it is that we continue to work through a transitional governing process in Syria, and that that is the best way forward – a political solution is still the preferred path forward.

QUESTION: Right, but when you talk about how no one – you’re not, he’s not, no one is satisfied with the status quo – this is a bit of what is actually going on on the ground in Syria – clearly, no one is. But this isn’t a question about the status quo on the situation in Syria. This is a question about the status quo of the policy. So are you not in a position to be able to say that the Secretary is not – that he doesn’t like the status quo, the policy status quo, the U.S. policy status quo?

MR KIRBY: Nobody’s happy with the status quo of events on the ground, and that is why —

QUESTION: Yeah, but what about the policy?

MR KIRBY: — but – I’m getting there.

QUESTION: All right.

MR KIRBY: That is why, as – and I mentioned this Friday – that is why we do consider – we are considering, we are discussing other alternatives, other options that may be applied, mindful that we are, that the current approach is, without question, struggling. But as the President said himself, none of those other options – be they military or not in nature – are better than – in terms of the long-term outcome, are going to be better than the political solution we’re trying to pursue.

QUESTION: Okay. This will be my last one. I – because I’m just a – the – so you – you’re – what you’re saying is that his comment, “It’s good,” refers —

QUESTION: Very good.


QUESTION: Very good.

QUESTION: It’s very good – sorry, it’s very good – that refers to how it was put together, like the grammar and the sentence structure, and not the actual content? Because that strikes me as being a bit —

MR KIRBY: No, I’m not saying he was talking about punctuation. I mean, I —

QUESTION: Oh, okay, so —

MR KIRBY: Obviously – obviously, he read the memo and found it to be a well-crafted argument, well enough that he feels it’s worth meeting with the authors. Now, what exactly did he find in Abigail’s shouted-out – quote, “Very good,” I don’t know. I haven’t spoken to him about every element of it. And again, I’m not going to talk about the content of it from here.

QUESTION: Well, so you can’t – you’re not in a position to say that the “It’s very good” means that he is prepared to make those same arguments within the – as the Administration deliberates?

MR KIRBY: No, I’m not prepared to – I’m not prepared to say that.


“Dissent Channel” Message on Syria Policy Signed by 51 @StateDept Officers Leaks

Posted: 2:52 am ET
Updated: 3:55 pm ET


The State Department’s Dissent Channel was created “to allow its users the opportunity to bring dissenting or alternative views on substantive foreign policy issues, when such views cannot be communicated in a full and timely manner through regular operating channels or procedures, to the attention of the Secretary of State and other senior State Department officials in a manner which protects the author from any penalty, reprisal, or recrimination.”  Note that management, administrative, or personnel issues that are not significantly related to matters of substantive foreign policy may not be communicated through the Dissent Channel according to the Foreign Affairs Manual.

There is a reason we don’t hear often about the messages sent through the “dissent channel”:

Freedom from reprisal for Dissent Channel users is strictly enforced; officers or employees found to have engaged in retaliation or reprisal against Dissent Channel users, or to have divulged to unauthorized personnel the source or contents of Dissent Channel messages, will be subject to disciplinary action.  Dissent Channel messages, including the identity of the authors, are a most sensitive element in the internal deliberative process and are to be protected accordingly.

Neither the identity of a Dissent Channel user nor the contents of any Dissent Channel message may be shared with anyone outside of the procedures as outlined in 2 FAM 074.1paragraph (b)

We understand that in 1977, the Executive Secretariat logged in some 32 Dissent Channel messages. By contrast, in 2005, you apparently could count by the fingers of one hand the number of Foreign Service professionals who used the Dissent Channel.

In 2009, USA TODAY (October 12, 2009) publicly reported the use of the dissent channel on a USAID program in Pakistan (see Dissent Channel: USAID/Pakistan Program.

Probably, one of the more famous use of the dissent channel was one signed by 20 diplomats on the U.S. policy toward East Pakistan, also known as the Blood Telegram, the subject of the book by Gary Bass.  Archer Blood was our top diplomat in Bangladesh.  He was the Consul General to Dhaka, East Pakistan and was famous for sending the strongly-worded dissent telegram protesting against the atrocities committed in the Bangladesh Liberation War. [See cable: Dissent From U.S. Policy Toward East Pakistan Cable (PDF); Also see Wanted: Patron Saint for Dissenting Diplomats).

On June 16,  NYT’s Mark Lander reports that dozens of diplomats have signed a dissent memo over the administration’s Syria policy, and that a State Department official provided a draft of the dissent memo to the newspaper:

More than 50 State Department diplomats have signed an internal memo sharply critical of the Obama administration’s policy in Syria, urging the United States to carry out military strikes against the government of President Bashar al-Assad to stop its persistent violations of a cease-fire in the country’s five-year-old civil war.

The memo, a draft of which was provided to The New York Times by a State Department official, says American policy has been “overwhelmed” by the unrelenting violence in Syria. It calls for “a judicious use of stand-off and air weapons, which would undergird and drive a more focused and hard-nosed U.S.-led diplomatic process.”

So, what happens next?

According to the regs, the Secretary’s Policy Planning Staff (S/P) is responsible for management of the Dissent Channel, including receipt, storage, distribution, and acknowledgment of all Dissent Channel messages received, and drafting, clearance, and timely transmission of all Dissent Channel responses.  Note that Jon Finer, is Secretary Kerry’s Chief of Staff and also the Director of Policy Planning

Immediately upon receipt of all incoming Dissent Channel messages, S/P distributes copies to the Secretary, the Deputy Secretary (Blinken), the Deputy Secretary for Management and Resources (Higginbottom), the Under Secretary for Political Affairs (Shannon), the Executive Secretary, and the Chair of the Secretary’s Open Forum (who is not identified on the website). The director of S/P may distribute the dissent message to other senior officials in the Department, both for information purposes and for help in drafting a response.  No additional distribution may be made without the authorization of the S/P director.

The Director of Policy Planning is also responsible for acknowledging receipt of a Dissent message within 2 working days and for providing a substantive reply, normally within 30-60 working days.  At the discretion of the Director of the Policy Planning, S/P may also clear replies with other senior Department of State officials.

Will this change the policy on Syria? Don’t count on it.

According to Kal Bird in Dissent in the Foreign Service, the first dissent cable was filed by Jack Perry, protesting the Christmas bombing of North Vietnam in 1972, on the eve of the Nixon-Brezhnev summit. Perry’s arguments had no impact on the Nixon-Kissinger Vietnam policy. Also this:

The first major test of the dissent channel as a means of not only venting views, but changing policy, came in Cyprus in 1974. In that year of the CIA-sponsored coup d’etat in Nicosia, Thomas Boyatt filed a dissent cable protesting Kissinger’s interventionist policy. Within days Boyatt was fired from his position as director of the Office of Cypriot Affairs. His dissent cable was not answered for five months, and even then, the response was merely an acknowledgment of receipt.

(Note: The Blood telegram is dated April 6, 1971, so while we do not have a date for the Perry cable protesting the 1972 bombing of North Vietnam, the Blood dissent appears to predates the Perry dissent).

Mr. Bird’s article notes that “precisely because few dissent cables have ever changed policy, use of the dissent channel is considered a desperate last resort.”

A “desperate last resort” and might just be the reason why this dissent channel memo was leaked to the New York Times.


What a dissent cable looks like — read Dissent From U.S. Policy Toward East Pakistan Cable via National Security Archive/GWU:



President Obama Remembers Ex-@USEmbArgentina Diplomat Tex Harris

Posted: 5:01 pm EDT


Below is an excerpt from the Buenos Aires Herald interview with Tex Harris:

What actions did you take?

I had business cards printed up, would go to the Plaza de Mayo square and urge the Mothers to come to the US embassy to explain what had happened to their family members. It began slowly, and developed into a torrent of reports.

How did the State Department use your reports?

Under the Carter administration, Congress mandated a new bureau for human rights in the State Department. Patricia “Pat” Derian headed this new bureau and her office used the reports to argue for severe sanctions against the military government of Argentina. The embassy leadership saw the curtailing my reporting as a way of curtailing the ability of Derian’s human rights office from impacting on US policy.

What type of sanctions did the Carter administration implement?

Under the US congressional mandate, the Carter administration began to cut off things from the military government one-by-one. They stopped providing special new technology, such as computers for police cars, or objecting to IDB (Inter-American Development Bank) loans. They began to cut off cultural, agricultural programmes, military exchanges and visits. Training for military officers was also curtailed.

Did you face any repercussions for your actions?

After six months of reporting, US human rights policy began to have an impact on every connection between the Argentine government and the United States. The embassy’s leadership tried to curtail my human rights reports, so they could have more flexibility in arguing for softer policies towards the military dictatorship. That led to a confrontation with my sense of duty to report the information being provided to me by family members and my responsibilities as a professional diplomat. And I was penalized for not being a “team player.” For seven years, my career was paralyzed.

Who was the ambassador at the time?

Raúl Castro was the US ambassador to Argentina then. He had developed a good relationship with (former Argentine dictator Roberto) Viola, and he was convinced that the best way to resolve the human rights problems in Argentina was for the US to take advantage of the divided military government, by supporting the army against the navy. But Washington DC had no interest in playing this micro-political ball game in Buenos Aires. The White House wanted to demonstrate the seriousness of then-president Carter’s human rights policy by implementing sanctions against gross violators of human rights — whether in Argentina or the Philippines.

Read the full interview here.

For those who missed this back when, here is a clip from Bill Moyers Crossroads interview. Part 2 is here.


Related items:



President Obama Pays Tribute to Argentina’s Dirty War Victims, Also Remembers USG Diplomats

Posted: 4:09 am EDT


President Obama and President Macri at the Parque de la Memoria paying tribute to Argentina’s Dirty War victims.

It takes courage for a society to address uncomfortable truths about the darker parts of its past.  Confronting crimes committed by our own leaders, by our own people — that can be divisive and frustrating.  But it’s essential to moving forward; to building a peaceful and prosperous future in a country that respects the rights of all of its citizens.

Today, we also commemorate those who fought side-by-side with Argentinians for human rights.  The scientists who answered the call from the Grandmothers of the Plaza de Mayo to help identify victims in Argentina and around the world.  The journalists, like Bob Cox, who bravely reported on human rights abuses despite threats to them and their families.

The diplomats, like Tex Harris, who worked in the U.S. Embassy here to document human rights abuses and identify the disappeared.  And like Patt Derian, the Assistant Secretary of State for Human Rights for President Jimmy Carter — a President who understood that human rights is a fundamental element of foreign policy.  That understanding is something that has influenced the way we strive to conduct ourselves in the world ever since.



Insider Quote: “If there were more of us willing to speak up about issues that matter …”

Posted: 12:02 am EDT


Amelia Shaw joined the Foreign Service (public diplomacy cone) in 2014 after careers in journalism and public health. She is currently doing consular work in Tijuana, her first post. She is the 2015 recipient of the W. Averell Harriman Award for Constructive Dissent. Below is an excerpt from Deconstructing Dissent, FSJ | September 2015:

“I am proud that I found a constructive way to take a stand on an issue that matters to me. But I can’t help wondering what the department would look like if there were more of us willing to speak up about issues that matter, large and small, regardless of whether or not we think we can actually change anything. Or as one senior officer pointed out to me, we dissent every day—but the difference is whom we dissent to and how far we are willing to go with it. At heart, it’s a question of integrity. Sometimes just adding your voice is enough.”

— Amelia Shaw
Foreign Service Officer



State Dept Releases New 3 FAM 4170 aka: The “Stop The Next Peter Van Buren” Regulation

Posted: 3:41 am EDT

Congratulations!  This is almost three years in the making!

We’ve previously covered the Peter Van Buren case quite extensively in this blog (see After a Year of Serious Roars and Growls, State Dept Officially Retires FSO-Non Grata Peter Van Buren). The State Department officially retired Mr. Van Buren on September 30, 2012. He left with full retirement. In December 2012, we were informed by inside the building sources that the Department was rewriting its 3 FAM 4170 rules on official clearance for speaking, writing, and teaching. (see State Dept to Rewrite Media Engagement Rules for Employees in Wake of Van Buren Affair).

On July 27, 2015, two months short of Year 3 since Mr. Van Buren retired, the State Department without much fanfare released its new 3 FAM 4170 rules in 19 pages. For the FAM is not a regulation; it’s recommendations” crowd, we hope you folks have great lawyers.

My! Look who’s covered!

The updated FAM, same as the old FAM, is divided into two meaty parts — official capacity public communication and personal capacity public appearances and communications.  The new version of 3 FAM 4170 is all encompassing, covering the following (not exhaustive list):

— all personnel in the United States and abroad who are currently employed (even if in Leave Without Pay status) by the Department of State and the United States Agency for International Development (USAID), including but not limited to Foreign Service (FS) employees, Civil Service (CS) employees (including schedule C appointees and annuitants returning to work on temporary appointments on an intermittent basis, commonly referred to as “While Actually Employed (WAE)” personnel), locally employed staff (LE Staff), personal service contractors (PSCs), employees assigned to fellowships or details elsewhere and detailees or fellows from other entities assigned to the Department, externs/interns, and special government employees (SGEs).

— Former Department of State employees (including former interns and externs) must seek guidance from A/GIS/IPS for applicable review process information. Former USAID employees (including former interns and externs) must consult the Bureau for Legislative and Public Affairs for applicable review process information.

— Employee testimony, whether in an official capacity or in a personal capacity on a matter of Departmental concern, may be subject to the review requirements of this subchapter. Employees should consult with the Department of State’s Office of the Legal Adviser or USAID’s Office of the General Counsel, as appropriate, to determine applicable procedures.

In practical terms, we think this means that if you get summoned to appear before the House Select Benghazi Committee and is testifying in your personal capacity as a former or retired employee of the State Department, these new regulations may still apply to you, and you may still need clearance before your testimony.

Convince us that we’re reading this wrong, otherwise, somebody poke Congress, please.

Also, does this mean that all retired FSOs who contribute to ADST’s Oral History project are similarly required to obtain clearance since by its definition, “online forums such as blogs” and “a person or entity engaged in disseminating information to the general public” are considered media organizations under these new rules?

Institutional interest vs. public interest

We are particularly interested in the personal capacity publication/communication rules because that’s the one that can get people in big trouble, as shown in the Van Buren case. Here’s the equivalent of our bold Sharpie.

3 FAM 4176.4 says:  “A principal goal of the review process for personal capacity public communications is to ensure that no classified or other protected information will be disclosed without authorization. In addition, the Final Review Office will evaluate whether the employee’s public communication is highly likely to result in serious adverse consequences to the efficiency or mission of the Department, such that preventing those consequences outweighs the employee’s presumptively high interest in communicating and the public’s interest in receiving the communication.”


Institutional interest trumps public interest? Where do you draw the line? You can still write a dissent cable as the “3 FAM 4172.1-3(D). No Review of Dissent Channel Communications” included in the 2009 version of the FAM survives as 3 FAM 4171 (e) in the current rules:

Views on matters of Departmental concern communicated through methods of internal communication (including, for example, the Department’s internal dissent channel) or disclosures made pursuant to 5 U.S.C. 2302(b)(8)(B) are not subject to the review requirements of this subchapter.

Which is fine and all, except — who the heck gets to read your dissent cable except the folks at Policy Planning? The State Department is not obligated to share with Congress or with the American public any dissenting opinions from its diplomats. One might argue that this is appropriate, after all, you can’t have diplomats second guessing in public every foreign policy decision of every administration. So, the American public typically only hears about it when a diplomat quits.  But given the two long wars in Iraq and Afghanistan, is the American public best served by this policy?  And by the way, candid opinion like the case of the six-page memo, entitled “The Perfect Storm,” in the lead up to the Iraq War, is still classified. Why is that?

The new regs also say this:

“To the extent time and resources allow, reviewers may assist the employee in identifying possible modifications or other adjustments to avoid the inclusion of non-classified but otherwise protected information, or the potential for adverse consequences to the Department’s mission or efficiency (including the employee’s ability to perform his or her duties effectively in the future).”

If we weigh the Van Buren book against these parameters, how much of the book’s 288 pages would survive such “modifications” or “adjustments.”

There goes the book, We Meant Well in Afghanistan, Also.

The Peter Van Buren Clause

We’ve come to call “3 FAM 4172.1-7 Use or Publication of Materials Prepared in an Employee’s Private Capacity That Have Been Submitted for Review as the Peter Van Buren clause. Below is the original language from the 2009 version of the FAM:

An employee may use, issue, or publish materials on matters of official concern that have been submitted for review, and for which the presumption of private capacity has not been overcome, upon expiration of the designated period of comment and review regardless of the final content of such materials so long as they do not contain information that is classified or otherwise exempt from disclosure as described in 3 FAM 4172.1-6(A).

That section of the FAM appears to survive under the current 3 FAM 4174.3 Final Review Offices, underlined for emphasis below.

c. To ensure that no classified information is improperly disclosed, an employee must not take any steps to proceed with a public communication (including making commitments to publishers or other parties) until he or she receives written notice to proceed from the Final Review Office, except as described below. If, upon expiration of the relevant timeframes below, the Final Review Office has not provided an employee with either a final response or an indication that a public communication involves equities of another U.S. Government entity (including a list of the entity or entities with equities), the employee may use, issue, or publish materials on matters of Departmental concern that have been submitted for review so long as such materials do not contain information described in 3 FAM 4176.2(a) and taking into account the principles in 4176.2(b). When an employee has been informed by the Final Review Office that his or her public communication involves equities of another U.S. Government entity or entities, the employee should not proceed without written notice to proceed from the Final Review Office. Upon the employee’s request, the Final Review Office will provide the employee with an update on the status of the review of his or her public communication, including, if applicable, the date(s) on which the Department submitted the employee’s communication to another entity or entities for review. Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.

The Van Buren clause appears to survive, until you take a closer look; italicized below for emphasis:

3 FAM 4176.2 (a) Content of Personal Capacity Public Communications

a. When engaging in personal capacity public communications, employees must not:

(1) Claim to represent the Department or its policies, or those of the U.S. Government, or use Department or other U.S. Government seals or logos; or

(2) Disclose, or in any way allow the public to access, classified information, even if it is already publicly available due to a previous unauthorized disclosure.

3 FAM 4176.2 (b) Content of Personal Capacity Public Communications

b. As stated in 3 FAM 4174.2(c)(1), a purpose of this review process is to determine whether the communication would disclose classified or other protected information without authorization. Other protected information that is or may be subject to public disclosure restrictions includes, but is not limited to: 

(1) Material that meets one or more of the criteria for exemption from public disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552(b), including internal pre-decisional deliberative material; 

(2) Information that reasonably could be expected to interfere with law enforcement proceedings or operations;

(3) Information pertaining to procurement in violation of 41 U.S.C. 2101-2107;

(4) Sensitive personally identifiable information as defined in 5 FAM 795.1(f); or

(5) Other nonpublic information, when used in a manner as prohibited by 5 CFR 2635.703.

Can one make the case that the conversations between the writer and his boss in the Van Buren book are “internal pre-decisional deliberative material?” Or that any conversation between two FSOs are deliberative? Of course. State can make a case about anything and everything.  Remember, it did try to make the case that the book contained classified information. (see “Classified” Information Contained in We Meant Well – It’s a Slam Dunk, Baby!). Also, we should note that documents marked SBU or sensitive but unclassified are typically considered nonpublic information.  Under these new rules, it’s not just classified information anymore, anything the agency considers deliberative material or any nonpublic material may be subject to disclosure restrictions.


3 FAM 4174.2 Overview (2015): Waving the ‘suitability for continued employment’ flag

c. Employees’ personal capacity public communications must be reviewed if they are on a topic “of Departmental concern” (see 3 FAM 4173). Personal capacity public communications that clearly do not address matters of Departmental concern need not be submitted for review.

(1) The personal capacity public communications review requirement is intended to serve three purposes: to determine whether the communication would disclose classified or other protected information without authorization; to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4).

(2) The purposes of the review are limited to those described in paragraph (1); the review is not meant to insulate employees from discipline or other administrative action related to their communications, or otherwise provide assurances to employees on matters such as suitability for continued employment (see, e.g., 3 FAM 4130 for foreign service personnel and 5 CFR 731 for civil service personnel). Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.


More 3 FAM 4170 Fun: Not meant to insulate employees from discipline or other administrative action

3 FAM 4176.1(e) General

e. As stated in 3 FAM 4174.2(c)(1), the review process is limited to three purposes. (See also 3 FAM 4176.4.) Therefore, completion of the review process is not a Department “clearance” or “approval” of the planned communication, and is not meant to insulate employees from discipline or other administrative action related to their communications, including for conducting personal capacity public communications that interfere with the Department’s ability to effectively and efficiently carry out its mission and responsibilities, by, for example, disrupting operations, impairing working relationships, or impeding the employee from carrying out his or her duties. Ultimately, employees remain responsible for their personal communications whether or not the communications are on topics of Departmental concern.


3 FAM 4176.3 Employee must disclose his/her identity to Department reviewers

a. PA reviews all personal capacity public communications on matters of Departmental concern by senior officials at the Assistant Secretary level and above, including Chiefs of Mission. For all other employees wishing to communicate publicly in their personal capacity on matters of Departmental concern, there are two review processes available:

(1) Individuals may, as a first step, submit their requests for review to the Final Review Office (as described in 3 FAM 4174.3(a)). For employees submitting a request to PA, such requests should be submitted via The Final Review Office will then consult with the employee’s immediate supervisor(s) and any other offices concerned with the subject matter in accordance with 3 FAM 4176.4(c). The Final Review Office will then make the final determination; and

(2) Alternatively, employees may initially submit their requests for review to their immediate supervisor(s), the Public Affairs Office in their bureaus or posts, and any other Department offices concerned with the subject matter. The materials must then be submitted to the Final Review Office, noting all such reviewers and any comments received. The Final Review Office will then verify those reviews, assess whether other reviews are needed, and make the final determination.

b. Supervisors, Public Affairs Offices, or any other offices involved in the review process must flag for the Final Review Office any view that the proposed public communication may:

(1) Contain classified or other protected information;

(2) Result in serious adverse consequences to the efficiency or mission of the Department; or

(3) Be or become high impact or high profile, for example communication that is controversial, or otherwise involves a sensitive Department priority; and

(4) The Final Review Office will then apply the standard described in 3 FAM 4176.4(a).

c. In all cases, an employee must disclose his or her identity to the relevant Department reviewers.

d. If another U.S. Government entity seeks Department review of a personal capacity public communication by that entity’s employee, the Department office in receipt of such request must coordinate with PA.


3 FAM 4177 Noncompliance may result in disciplinary action, criminal prosecution and/or civil liability.

a. Failure to follow the provisions of this subchapter, including failure to seek advance reviews where required, may result in disciplinary or other administrative action up to and including separation. Violations by USAID employees may be referred to the Deputy Administrator for Human Resources or USAID’s Office of the Inspector General (see 3 FAM 4320). Disciplinary action will be pursued consistent with applicable law, including 5 U.S.C. 2302

b. Publication or dissemination of classified or other protected information may result in disciplinary action, criminal prosecution and/or civil liability.

This is the part where we must remind you that what the former State Department spokesperson said about the FAM being recommendations is a serious bunch of hooey!

Oh, hey, remember the 2-day clearance for tweets …’er scandal?

We wrote about it here and here, and the “ain’t gonna happen 2-day clearance” for social media posting is now part of the Foreign Affairs Manual.  Apologies if the 2-working day review timeframe below for social media postings is too shocking for 21st century statecraft innovation purists. These are the rules, unless you can get the current State Department spokesperson to say from the podium that these are merely recommendations that employees/retirees/interns/charforce are free to ignore. We must add that the 2009 version of these rules, required that materials of official concern submitted in the employee’s private capacity must “be submitted for a reasonable period of review, not to exceed thirty days.” The old rules made no distinction whether the submitted material is a book manuscript, an article, a blogpost or a tweet.
screen grab from 3 FAM 4172

screen grab from 3 FAM 4170

Yo! What’s Missing?

The new regs emphasized the need for official clearance for official and private communication “to ensure that no classified information is improperly disclosed.” It however, does not include any guidance on the use of a private server for emails and social media postings where classified information could be improperly disclosed.

A Much Better FAM Version, Hey?

From the organizational perspective, some folks would say that this is a “much better” version of the FAM.  We’d call this a much better plug. An insider could argue that this is a “very fine sieve.”

Okeedokee, but what do you think will be its consequences for the rank and file? No one will officially admit this as the intent, but after reading this new version of 3 FAM 4170, this is what we think it really says:

The updated regs also says that “In light of the rapid pace with which many social media platforms are used, all offices, sections, or employees who routinely post to such platforms in their official capacity are encouraged to seek advance blanket authorization to engage for their social media communications, in accordance with 3 FAM 4175.1(c).”

The blanket authorization as far as we can tell only applies to those who are engaged in social media platforms in their official capacities, it makes no similar provision for employees in social media platforms in their private capacities.

Fun With Fido or Grumpy Cat

The new regs helpfully notes that “Employees who, in their personal capacity, wish to communicate publicly on matters that are clearly not “of Departmental concern” (see 3 FAM 4173) need not seek Department review under the procedures outlined herein, and need not use the personal capacity disclaimer discussed below in paragraph (b).”

So, basically, if you blog, tweet or write a book about Kitty Kat or Fidodog, or about their travels and adventures in Baghdad, Kabul, Sanaa, and all the garden spots, you don’t need to seek Department review. That is, as long as Kitty Kat is not secretly arming the rodent insurgents and tweeting about it and Fidodog is not flushing government money down the toilet and blogging about it.


Related items:


Download it here (pdf).


Burn Bag: Dissent Awards — How low can we go?

Via Burn Bag:


Well, how about this:  Dissent Awards without any real dissent.  In fact, three out of four don’t have any and it’s a reach for the entry-level one! How low can we go?

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