Watch Out! Hatch Act Snares HUD Secretary Julián Castro, Other Federal Employees

Posted: 3:38 am ET

 

On July 18, 2016, the U.S. Office of Special Counsel (OSC) announced its finding that Secretary of Housing and Urban Development Julián Castro violated the Hatch Act during a Yahoo News interview on April 4, 2016. According to OSC’s report, Secretary Castro’s statements during the interview “impermissibly mixed his personal political views with official agency business despite his efforts to clarify that some answers were being given in his personal capacity.”

OSC apparently conducted an investigation after receiving a complaint about the interview. The OSC stresses that “federal employees are permitted to make partisan remarks when speaking in their personal capacity, but not when using their official title or when speaking about agency business.” The investigation concludes:

While the Hatch Act allows federal employees, including cabinet secretaries, to express their personal views about candidates and political issues as private citizens, it restricts employees from using their official government positions for partisan political purposes. In passing this law, Congress intended to promote public confidence in the Executive branch by ensuring that the federal government is working for all Americans without regard to their political views. Despite his efforts to clarify that he was speaking only for himself and not as a HUD official when answering political questions, Secretary Castro’s statements impermissibly mixed his personal political views with official government agency business.

OSC’s report can be found here (PDF) or read it below.  Secretary Castro’s response can be found here (PDF).

Take note of these other cases:

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Ex-Fox News Commentator/CIA Impostor Sentenced to 33 Months in Prison For Fraud

Posted: 3:27 am ET

We’ve previously posted about this case here: Ex-Fox News Commentator Pleads Guilty to Fraud, Dents Benghazi Cottage Industry. On July 15, USDOJ announced that Wayne Shelby Simmons was sentenced  to 33 months in prison “for major fraud against the government, wire fraud, and a firearms offense.” The sentence also includes three years of supervised release, forfeiture of two firearms and $175,612 in criminal proceeds, and restitution to his victims.

Via USDOJ | CIA Imposter Sentenced to Prison for Fraud

ALEXANDRIA, Va. – Wayne Shelby Simmons, 62, of Annapolis, Maryland, a former Fox News commentator who has falsely claimed he spent 27 years working for the Central Intelligence Agency (CIA), was sentenced today to 33 months in prison for major fraud against the government, wire fraud, and a firearms offense.  Simmons was also ordered to serve three years of supervised release, to forfeit two firearms and $175,612 in criminal proceeds, and to pay restitution to his victims.

“Wayne Simmons is a fraud,” said Dana J. Boente, U.S. Attorney for the Eastern District of Virginia. “Simmons has no military or intelligence background, or any skills relevant to the positions he attained through his frauds.  He is quite simply a criminal and a con man, and his fraud had the potential to endanger national security and put American lives at risk in Afghanistan.   I want to thank the agents and prosecutors for their efforts on this complicated case.”

“With this sentencing, Simmons now faces the consequences of his criminal activity, deceit, and dishonesty,” said Paul M. Abbate, Assistant Director in Charge of the FBI’s Washington Field Office.  “He fraudulently obtained positions with the U.S. government by lying about his previous employment and history, and further, defrauded a victim through a bogus real estate investment scheme. Simmons abused people’s trust for his own selfish gain, and in doing so placed lives at risk and jeopardized national security.”

“Mr. Simmons never worked at CIA and we are pleased that justice was served in this case,” said Dean Boyd, Director of CIA’s Office of Public Affairs.

Simmons pleaded guilty on April 29.  According to court documents, Simmons defrauded the government in 2008 when he obtained work as a team leader in the U.S. Army’s Human Terrain Systems program, in 2009 when he attempted to obtain work with the State Department’s Worldwide Protective Service, and again in 2010 when he was deployed to Afghanistan as a senior intelligence advisor on the International Security Assistance Force’s Counterinsurgency Advisory and Assistance Team (CAAT).  To obtain these positions and the security clearances they required, Simmons made false statements about his financial, employment, and criminal history, including that he had worked for the CIA, that he had previously possessed a top secret security clearance, and that his prior criminal convictions related to his supposed clandestine work.  In order to obtain the CAAT position, Simmons also lied about the nature of the work he had done just a year earlier with the Human Terrain Systems program, a program from which he had been forced to resign prior to deployment.  The government’s investigation determined that Simmons was never associated with the CIA in any capacity and that during the years he claims to have worked for the agency, he was instead working in a variety of capacities and having various run-ins with the law.  His work activities from 1973-2000 include: defensive back for the New Orleans Saints NFL team, nightclub doorman, manager at a rent-by-the-hour hot tub business, bookie, operator of a limousine business and an AIDS-testing business, mortgage broker, and employment at an anti-graffiti business.  During that time, the defendant was also convicted of state firearms, assault, and gambling charges and federal firearms charges.

Simmons also defrauded an individual victim, identified as E.L., out of $125,000 in connection with a bogus real estate investment.  As part of the fraud, Simmons sent E.L. promised monthly disbursements to make it appear as if her funds had been invested as promised and repeatedly lied to her about the whereabouts of her money in order to perpetuate the fraud.  There was never any actual real estate investment project, and Simmons simply spent the funds.

Finally, when Simmons was arrested in this case, he was found to be in possession of two firearms, which he was prohibited from possessing on account of his prior felony convictions.

Dana J. Boente, U.S. Attorney for the Eastern District of Virginia; and Paul M. Abbate, Assistant Director in Charge of the FBI’s Washington Field Office, made the announcement after sentencing by U.S. District Judge T. S. Ellis, III.  Assistant U.S. Attorneys Paul J. Nathanson and James L. Trump prosecuted the case.

A copy of this press release may be found on the website of the U.S. Attorney’s Office for the Eastern District of Virginia.  Related court documents and information may be found on the website of the District Court for the Eastern District of Virginia or on PACER by searching for Case No. 1: 15-cr-293.

Click file to read the indictment (PDF) via USDOJ/USAO/Eastern District of Virginia.

This is a guy who was part of the Pentagon’s Retired Military Analysts program whose members, the um… “message force multipliers” were given regular briefings from Donald Rumsfeld, then the secretary of defense. Read the wild story on how this con unraveled: The Plot to Take Down a Fox News Analyst via NYT mag.

 

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NY Couple Pays $1 Million Penalty in Immigration Fraud Scheme Involving Philippine H-1B Nurses

Posted: 3:01 am ET

Via USDOJ/Vermont:

New York Lawyer and Wife Pay $1 Million Following Conviction on Immigration Fraud Scheme

The Office of the United States Attorney for the District of Vermont announced today that Loreto Kudera, age 45, and Hazel Kudera, age 43, a married couple from New York, New York, who have pleaded guilty to an immigration fraud scheme, have paid the final installment of their $1 million forfeiture penalty representing ill-gotten gains from the scheme.

On June 9, 2016, the Kuderas pleaded guilty to charges that they conspired to commit immigration fraud. According to the public record, Hazel Kudera owns several medical staffing agencies in New York specializing in providing nursing professionals to hospitals, outpatient and skilled nursing facilities. She and her husband, Loreto Kudera, then a lawyer at the Law Offices of Barry Silberzweig, in New York, New York, provided false and fraudulent information to the U.S. Citizenship and Immigration Services in St. Albans, Vermont when applying for  for foreign nurses.

The H-1B visa program permits an employer to petition on a behalf of a foreign national beneficiary to enter the United States for the specific purpose of working for the employer in a specialty occupation. There are a limited number of H-1B visas available each year, and the purpose of the program is to ensure that these visas go to legitimate beneficiaries to fill specialty positions from a qualified work force. Working as a general RN or LPN is not considered a specialty occupation by the U.S. Citizenship and Immigration Service. Knowing this, Hazel Kudera and Loreta Kudera falsely stated that these foreign nurses, mostly from the Philippines, would be working in specialty occupations at prevailing wage rates when, in fact, they were going to work as LPNs or RNs at much lower rates, mostly at nursing homes. Hazel Kudera and Loreto Kudera profited from this scheme from the filing fees they collected from the beneficiaries as well as from the health care facilities which were paying fees to the medical staffing agencies owned by Hazel Kudera. The Kuderas admitted that they submitted 100 or more fraudulent petitions as part of their scheme. As a result of their convictions, the Kuderas agreed to forfeit $1,000,000 in illegal proceeds to the United States.

The Kuderas are scheduled to be sentenced on September 28, 2016. The maximum penalties for their conviction are five years of imprisonment, three years of supervised release, or a fine of $250,000 or twice the amount of gross gain, whichever is greater. The sentence will be advised by the United States Sentencing Guidelines.

The United States Attorney commended the investigative efforts of the United States Department of State, Diplomatic Security Service, the United States Department of Labor Office of Inspector General, Office of Labor Racketeering and Fraud, and the United States Department of Homeland Security, Homeland Security Investigations, in Boston, Massachusetts, who jointly spearheaded the investigation. The United States Attorney also wishes to thank the United States Citizenship and Immigration Service, Security Fraud Division, at the Vermont Service Center in St. Albans, Vermont for their assistance with the investigation.

The original announcement is available here.

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Burn Bag: Feds going to Havana deserve to sit at layover airports for several hours?

Via Burn Bag:

So, the Department of Transportation is going to approve direct service to Havana by American flag carriers from many cities, but not from Washington’s Dulles Airport.

This tentative decision explicitly disses those individuals – federal employees on official travel – directly responsible for the opportunity created by the opening to Cuba.

Comments on the tentative decision are due by July 22, 2016.

If the State Department and WHA* cannot fix this, then the entire federal government deserves to sit at layover airports for several hours in each direction.

H e l  –  l o  !

giphy-steve martin

 

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*Western Hemisphere Affairs

Comment:  On July 7, the U.S. Department of Transportation (DOT) proposed to select eight U.S. airlines to begin scheduled flights between Atlanta, Charlotte, Fort Lauderdale, Houston, Los Angeles, Miami, Newark, New York City, Orlando, and Tampa and Havana as early as this fall.  The proposal comes nearly one year after the United States and Cuba reestablished diplomatic relations in July 2015. The airlines receiving the tentative awards are Alaska Airlines, American Airlines, Delta Air Lines, Frontier Airlines, JetBlue Airways, Southwest Airlines, Spirit Airlines, and United Airlines. According to DOT’s announcement, the agency’s proposal “allocates nonstop Havana service to areas of substantial Cuban-American population, as well as to important aviation hub cities.”

According to nerdwallet.com citing 2013 census data, the Washington-Arlington-Alexandria, DC-VA-MD area ranks 12th in areas with top Cuban-American population. If DOT eventually includes Dulles in the direct service to Havana, we suspect that it will not be because federal employees did their jobs in reopening Cuba.

 

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@StateDept Spox: Lax security culture here? We don’t share that assessment

Posted: 2:47 am ET

 

Via the Daily Press Briefing with John Kirby:

QUESTION: So one of the word I think that kind of stood out in this regarding the State Department’s equities was “careless.” I think he even said extremely careless at one point regarding the former secretary and how she handled her emails – top staff around her, including some still at the department, and the agency as a whole. Do you agree that this agency was extremely careless with how it dealt with classified and otherwise sensitive information?

MR KIRBY: Well, I’m not going to, again, comment on the specific findings and recommendations that the FBI director noted today.

QUESTION: Why not?

MR KIRBY: But the question about —

QUESTION: That was a public statement.

MR KIRBY: The claim about – I do want to address this – the claim about a lax environment or culture when it comes to handling classified information. And I would just say – and I’m comfortable commenting on that because, as the director himself said, that was not part of their investigation – his – their assessment of a lax environment or culture. We don’t share that assessment of our institution. That said – and I’ve said this many times before – we’re always looking for ways to improve. We’re going to continue to look for ways to improve. But we don’t share the broad assessment made of our institution that there’s a lax culture here when it comes to protecting classified information. We take it very, very seriously.

QUESTION: But I’m sorry, you don’t share the assessment that when the former head of the agency had thousands of emails that you had to upgrade, including hundreds that were – over a hundred that were classified at the time, that that doesn’t amount to a lax approach to classified information? I mean, how many hundreds would you need for it to be lax, in your opinion?

MR KIRBY: What I’m saying, Brad, is that as a cultural assessment of the State Department as an institution that we have a lax culture here, we don’t share that assessment. And as the director said himself, that’s not – wasn’t part of their investigation or the findings and recommendations that they made inside that investigation.

QUESTION: Well, but so it’s not – it’s true that it was not the scope of their investigation, but in looking at her emails and the number of officials that were emailing here about classified information, that’s where they came to the determination that there was a lax culture. So I mean, I guess you would have to look at every single employee and see what their treatment of email to determine that it’s a lax culture, but clearly, the FBI found enough – Secretary Clinton’s intent or whatever notwithstanding, that generally that there were a lot of officials and that they came across in the scope of this investigation which led them to believe that the culture is not taken as seriously as it could be.

MR KIRBY: Well, I’ll let the FBI director speak to their findings and recommendations and his investigation, as he should. The question was do I share, do we share, the assessment of the culture at the – of the – at the institution of the State Department to be lax, and we do not share that assessment. We take it very seriously here.

 

let me stop you right there

 

QUESTION: So you think – well, clearly, he found it in the previous administration, in the previous term. So are you saying that maybe that there was a lax culture that doesn’t exist anymore?

MR KIRBY: No, I’m not saying that. I’m not saying that at all, Elise. I’m not parsing words here. I’m saying that the State Department has in the past and does today take the treatment of classified information very seriously. And when we —

QUESTION: So it was just some bad apples?

MR KIRBY: And when we have – pardon?

QUESTION: So it was just a few people that did not take enough care?

MR KIRBY: I’m not going to speak to any more specifically about the findings and recommendations that the FBI made and announced today. What I can tell is we don’t share the broad assessment that there is a lax culture here at the State Department when it comes to dealing with classified information. In fact, quite the contrary; we take it very seriously.

QUESTION: I have one more. I have one more. Can you – the FBI director said that had some of these people still been in office that they would have been subject or could have been subject to administrative penalties. Is anybody that’s currently employed by the State Department going to have any notes in their files as a result of anything that their emails uncovered in terms of their communications?

And then also, some of the previous employees that worked for Secretary Clinton that were found to have exchanged what is now believed to be classified information, are they going to have kind of posthumous notes put in their file should they ever seek to be employed by the U.S. Government again? And does the State Department do that or does the FBI do that, and is that through OPM? Like what’s the process there?

MR KIRBY: So let me answer it this way, and I think I alluded to this at the top. We’re going to determine the appropriate next steps following a decision by the Department of Justice, and that’s where this really lays right now. We have – as you know and I’ve said, we have an administrative process to evaluate cases where information may have been mishandled, and as I’ve said previously, at the request of the FBI, we didn’t move forward with that process so as not to interfere with their investigation. We also don’t believe that it’s appropriate at this time, given that there are – that the matter is now before the Department of Justice to determine their next step, to make decisions or not to make decisions – we don’t think it’s appropriate for us to move forward on that at this time. So I just don’t have an update for you on the – on any possible timing or scope of that review process.

QUESTION: So what would be the – so once the Department of Justice makes their recommendation, then you would determine what administrative processes you want to move forward with?

MR KIRBY: I think we need to wait to see what the Justice Department decides to do now in the wake of the FBI investigation before we move forward one way or the other, and we want to allow the proper time and space for that before we decide anything further with respect to those issues.

QUESTION: Kirby, a couple of detailed questions on this, and if you don’t have the answers, if you could undertake to take them. As has been explained to me, there are two separate processes that can be undertaken here. One of them is an administrative process and the other is a security clearance-related process.

As has been explained to me, but I’d like to confirm, the administrative process governs solely people who are currently employed by the Department of State. So can you confirm that that’s the case, that administrative processes or sanctions don’t apply to people who are no longer employed by State?

Second, as it’s been explained to me, it is possible for people who are no longer employed at State but who retain a security clearance to be subject to a security clearance process and perhaps sanction. Is that your understanding as well?

And then a couple of other specific things. Are any – is – does Secretary – former Secretary Clinton or any of her senior aides – specifically Cheryl Mills, Jake Sullivan, and Huma Abedin – continue to have security clearances provided by the State Department? And if so, is it theoretically possible that you would then review those security clearances in the light of whatever is ultimately the Justice Department prosecutorial decision and the FBI’s investigative material?

MR KIRBY: There’s an awful lot there. Let me see if I can dissect it. I’m certainly not going to get ahead of what is still an ongoing process now at the Justice Department, or speculate one way or the other about which way this will go. I don’t know – I’m happy to ask the question, your question about administrative processes. I don’t know if there is a technical definition for “administrative” and whether that applies in broad scope to only current employees or former employees. I’ll have to take that.

On the security clearance process or review, all I can tell you generally speaking is that – is that if there is a need – and I’m speaking broadly, not to this – that – the way it typically works, as I understand it, is that the department that issues a security clearance, if there is – if it’s determined that that clearance needs to be reviewed for whatever reason, it’s up to that – it’s up to the department that issued it to review it regardless of whether the employee is still at the – is still employed by the agency. The agency has that responsibility unless, of course, that employee went to a different federal agency and then got it renewed there. Does that make sense?

I’m not going to speculate one way or another about the degree to which this is – this is even a part of it. The FBI director was very careful; I’m going to be very careful. These are now decisions that have to be discussed. The findings and recommendations now have to be absorbed by the Department of Justice, and then they make – they’ll make decisions or not going forward.

And then on your last question, about the individuals, we do not discuss the security clearance of individuals as a matter of policy. We just don’t discuss it.

QUESTION: In – but these are former officials.

MR KIRBY: We don’t – we do not discuss.

QUESTION: And one of them, Jake Sullivan, in the transcript of his deposition in the civil lawsuit in which he was deposed as part of discovery, his lawyer said that his security clearance was restored so that he would have the ability to look at some of the material that was classified that they wanted to talk to him about. And so it’s at least in the public domain in that one instance, according to his lawyer, that he had, as of that date about a week ago, a security clearance.

MR KIRBY: Yeah.

QUESTION: Why can’t you talk about whether former officials have security clearances?

MR KIRBY: Because that’s our policy.

QUESTION: You don’t want —

MR KIRBY: And it’s been longstanding policy. We do not discuss the security clearance levels or access of individuals, current or former. We just don’t – that’s our policy and I’m not going to violate that.

QUESTION: It’s a State Department policy or a government-wide policy?

MR KIRBY: I know it’s at least a State Department policy, Elise. I’ll find out if it goes beyond that. I’m not going to —

QUESTION: Because certainly there have been instances, whether it’s General Petraeus or Sandy Berger or others, that when there was punitive action taken, they did discuss the security clearance.

MR KIRBY: I’m not going to discuss the individual security clearances from this podium – just not going to do it. And if there’s – I’d refer you to the individuals in question and if they’re represented by others to speak to that, but I won’t do that.

QUESTION: Just one more on the question of lax – laxity. You state that you disagree with the assessment that the State Department is lax, has a culture of being lax in the protection of classified information. Why is it that the highest State Department official was allowed to establish and use a private email server with, as I understand it, no government-provided security for emails that contain information that, as the FBI director said this morning, some of which was classified at the time it was sent and received? I mean, if it’s not lax, how can the top official of the department go off and set up their own system that isn’t subject to the normal procedures here?

MR KIRBY: Look, I’m not going to re-litigate the investigation. As I said, I’m not going to speak to the findings and recommendations – the FBI director spoke to that earlier today – and to what they found in terms of the practices back then and how those practices were followed. What I’ll just tell you – broadly speaking, we don’t share the assessment that as an institution – an entire institution – that the State Department has in the past or does today take lightly the issue of sensitive and classified information. We absolutely don’t.

QUESTION: What’s your basis for that?

QUESTION: The reason I asked it is that you look at, as I understand it, kind of every level of potential check or balance here, right? The assistant secretaries for DS, the under secretary for management – according to the inspector general’s report, these people were not asked and did not voice an opinion on the use of this system. The person on the seventh floor who was charged with these kinds of issues, at least according to the report, told people – told two people not to talk to anybody about it. So even if the quibble is with the world “laxity,” do you feel that your systems were sufficient to safeguard classified information sent by or to the secretary of state?

MR KIRBY: Again, I think the FBI director addressed that as well as part of their investigation. I am simply not going to discuss or comment on their findings and recommendations with respect to this case.

QUESTION: Well, I mean —

MR KIRBY: This issue – wait a second, Elise. Wait, wait – and to your question. And as he said himself, his assessment of the State Department’s culture was not part of this investigation, and that’s why I’m comfortable addressing that, that on – as a whole, in the main, we absolutely do not share the broad assessment that the entire culture here at the State Department is lax when it comes to protecting sensitive and classified information.

And what I’m basing that on, Brad, is the longstanding – and I don’t just mean recently – the longstanding training and indoctrination that one goes through before you get employed here and the periodic reviews of the training and sensitive information handling that you have to go through all the time. I’ve been here a little bit more than a year; I’ve already had to go through it several times myself. That you – we have two networks for email traffic that are deliberately set up to handle various degrees of sensitive information, and that the work of diplomats all around the world is by its very nature is sensitive, but it’s also outward-facing, and has to be. And there is a role here at the State Department to be communicative, to have dialogue, to foster communication. That’s a big part of who we are. And I can – and I can tell you that everybody involved in that understands the risks and the opportunities of it, and takes it very seriously.

QUESTION: Well —

MR KIRBY: So to say that the culture here —

QUESTION: Yeah.

MR KIRBY: — is lax, that’s a pretty broad brush, and again, we wouldn’t use it; we don’t believe it.

QUESTION: The problem is this indoctrination that you speak of obviously didn’t work when it came to the past secretary, or the hundred or so officials who all contacted her during the course of her tenure, or the dozens of officials who would have known that she wasn’t using a state.gov address or would have known that information that was at least on the borderline was going to a nongovernment account. So that failed across the board, right?

MR KIRBY: I’m not going to make a qualitative assessment.

QUESTION: The IG report said as much.

MR KIRBY: The IG spoke as well to this. I’m not going to talk about the findings and recommendations of this investigation.

QUESTION: Well —

QUESTION: And —

MR KIRBY: But this was – there is a difference, Brad, between an assessment of email practices under Secretary Clinton’s tenure and how they were implemented and saying that the culture here at the State Department is lax.

QUESTION: Okay, well, what —

QUESTION: Yeah, but – no, no, no, hold on. But – sorry, you can’t separate the head of the agency and everybody who worked around her at a senior level in this agency and say —

MR KIRBY: Right, and I’m not trying to.

QUESTION: Well, you —

QUESTION: — well, there were somebody out there who was following the rules, so the culture was okay.

MR KIRBY: It’s more than somebody, Brad.

QUESTION: Well —

QUESTION: Well, I don’t know. Show me an IG report that shows all the adherence.

QUESTION: Let me —

QUESTION: And secondly, you’re making this case about how the State Department was an – is an outward-looking agency.

MR KIRBY: Yeah.

QUESTION: None of these emails from Secretary Clinton were outward-focused. They were all about internal messaging, they were all about her and her aides consulting on matters —

MR KIRBY: Sure.

QUESTION: — that weren’t meant for public consumption, and there’s even messages about not wanting things out for public consumption. So I fail to see how that’s an argument that shows why somehow this is distinct or excusable.

MR KIRBY: It’s a valid argument when you’re talking about the entire institution, Brad, and not an individual inside it, regardless of whatever level that individual serves, to make a broad assessment – and look, I don’t – I don’t – I’m not going to – I think I’ve said it plenty of times already – to make a broad assessment of the entire institution, that it was lax or that we don’t care or we don’t take it seriously. We don’t share it.

Now, look, as I also said, we’re always looking for ways to improve. And if there’s ways we can learn from this particular investigation to improve, then we’ll do that.

QUESTION: So, John – okay. So I think it’s pretty clear what you’re taking issue with is that you’re – you’re interpreting the FBI director’s comments to mean a culture throughout the whole State Department apparatus. And I think his – what he’s trying to say is based on – and they did not – the scope of their investigation was not the whole State Department; it was Secretary Clinton and the immediate staff and several other dozen officials that were emailing her – that there was a lax culture among a subset of State Department officials. That – I don’t think he’s making an indictment on the whole State Department, but he is saying that there was a culture inside the State Department where the security was lax. I mean, the fact that this took place kind of indicates that it was.

And he does also say that this use of a personal email domain was known by a large number of people and readily apparent. So there were numerous people inside the State Department that knew that she was using this type of system. So how can you not – if you don’t want to acknowledge that there was a lax culture in the whole kind of State Department bureaucracy, can you not acknowledge that among a subset of employees at the time that there was a lax – a culture of lax security among that subset?

MR KIRBY: Well, I’ll let the investigation speak for itself and the FBI director to speak for it.

QUESTION: But by you kind of parsing out and saying that this – let me finish – that by you parsing out and saying that the whole building doesn’t have a lax security problem suggests that you’re dismissing that a small portion did.

MR KIRBY: I was not suggesting any such thing, Elise. As I said, we cooperated with the FBI on its investigation. I can’t talk about the scope of that cooperation. I’m not going to, again, address the specific findings and recommendations that he made. And the director has spoken for their investigative work, and I would refer you to him and to his staff to speak to it going forward. And I don’t have his exact quote, so I can’t tell you if I’ve misinterpreted or not. I mean, he can speak for himself in terms of what he meant. The way we interpreted it was that it was a broad-brush assessment of the culture here at the State Department when it came to —

QUESTION: Do you not – do you not agree that a group of people, however large it was, that knew about this system and let it kind of – greenlighted it and let it go forward and didn’t ask questions about it suggests that security – and a culture of security was lax somewhere in the —

MR KIRBY: Look, our inspector general himself found that there were lapses and that not all appropriate practices were conducted. I mean, nobody’s taking issue with that. What I’m taking issue with – and the only thing I’m taking issue with today, because I’m not going to comment, as I said, on the specifics – the only thing I’m taking issue with is an assessment, a broad assessment, of the culture of the institution, which we do not share.

QUESTION: Can I follow up on this?

QUESTION: Something else from today: The director of the FBI said that the FBI had found over a hundred emails that contained classified information at the time that they were sent or received, and some were even actually marked classified. So that contradicts what the State Department has been saying throughout this investigation, so how do you square the two?

MR KIRBY: As I said, I’m not going to comment on the specific findings and recommendations of the investigation.

QUESTION: John —

QUESTION: One follow-up —

QUESTION: Would you, though, at least acknowledge that —

MR KIRBY: Hang on a second. Hang on.

QUESTION: Something else that he said in his comment – he said that the 110 emails had been determined by the owning agency to contain classified information. So do you now acknowledge that it is the owning agency’s responsibility, not the recipient’s or even necessarily the State Department, in determining what information is classified and what’s not?

MR KIRBY: Again, what I would tell you is we cooperated fully with the FBI on this and I’m not going to comment specifically on the findings of the investigation. As much as I know you’d like me to, I’m not going to do that. There is now – there is a process here in place where the Department of Justice is going to take a look at this. We’re going to let that process play out, as we should, and we’ll await any pending decisions by the Department of Justice before the State Department moves forward one way or another.

QUESTION: John, how do you stand up —

QUESTION: What about the possibility that people hostile to the U.S. had possibly gained access to —

MR KIRBY: I’m sorry?

QUESTION: What about the possibility that states or entities hostile to the U.S. had possibly gained access to some of the content of those emails? Do you share those concerns that the FBI director said today?

MR KIRBY: Well, again, we, of course, take the security of our systems very, very seriously, and we’re always concerned about intrusions into our system. I think the director also said that they didn’t find any direct evidence that the system was compromised, but I don’t have additional details to offer today.

QUESTION: But he also said that you couldn’t be sure and that – and it’s possible that they did so and you don’t even know about it.

MR KIRBY: Again, we’re always concerned about this. And look, federal government systems get attacked every day. I just don’t have any additional details on this.

QUESTION: Oh, you’re not – you’re not suggesting that because government systems are hacked that there was enough security in place that would replace —

MR KIRBY: I’m not —

QUESTION: — that would be equal to the government security? The FBI director specifically said that it was not as secure as a government system or even a Gmail account.

MR KIRBY: Again, I’m not going to discuss or debate the findings or the recommendations.

QUESTION: But you were the one that raised it. You said government computers get – or government systems get hacked all the time.

MR KIRBY: It doesn’t mean we don’t take it seriously, Elise.

QUESTION: Hey, John, just – can I —

MR KIRBY: Carol.

QUESTION: John, do you – I believe the FBI director made a point of saying that you were lax in comparison to elsewhere within government. Do you believe that you stand up equally to other agencies in the government, including national security agencies like the FBI and the CIA, the White House, and the Pentagon? Do you think you are equal to them?

MR KIRBY: I think – look, first of all, that everybody has a – everybody in the federal government has standard rules that crosscut agencies in terms of how sensitive and classified information is treated and dealt with. We all have the same basic rules. But each federal agency also has a fundamental different purpose and each of the major federal agencies has to, by dint of their purpose, look at the world in different ways.

As I said to Brad, we are required – not just that we like it – we’re required to be outward-facing, we’re required to communicate, we’re required to foster dialogue, we’re required to have conversations with foreign leaders and in foreign countries all around the world every single day. Now, that doesn’t obviate, doesn’t excuse, it doesn’t mean that we’re not also responsible in the conduct of that business to protect sensitive information. We have to. But the State Department, unique to many – unique, I think, among federal agencies, has an actual obligation to communicate.

So that’s why I’m confident in saying that – look, do we always get it right? No. Have we admitted that there were things we could have done better in the past? Absolutely. The IG found that. The Secretary himself has taken steps to try to improve records management here. But we have an obligation to communicate, and you have to find the right balance between the need to do that – to foster dialogue, to try to gain better understanding of what somebody else thinks and articulate your policy, at the same time protecting sensitive information. So we have a different role. I don’t think it’s useful to compare each and every federal agency with the way they do this because each of them have different responsibilities in terms of the information environment. But again, I’m not at all excusing anything in terms of our responsibilities – our baseline responsibilities, which every federal agency has – to protect classified and sensitive information.

QUESTION: Hey, Kirby.

MR KIRBY: Yeah.

QUESTION: According to a letter dated February 18th, 2016, from Julia Frifield, the assistant secretary for legislative affairs, to Chairman Grassley, the letter explicitly discloses that Cheryl Mills did maintain a top-secret – well, did maintain a security clearance because, pursuant to Section 4.4 of Executive Order 13526, she was designated by former Secretary Clinton to assist her in research consistent with that section of the executive order. So you do disclose – you do talk about security clearances, at least in this one instance, with regard to Ms. Mills.

MR KIRBY: That’s a – that – you’re talking about a piece of correspondence between the head of legislative affairs here and a senator. That’s different than public disclosure, certainly different than disclosure and talking about it here from the podium. As I said, our policy is not to discuss it, and I’m not going to change the policy here today.

QUESTION: Even though you’ve told lawmakers about it?

MR KIRBY: That is not the same as having a public discussion of security clearance. That’s a vastly different thing.

QUESTION: Is it – that wasn’t a classified letter.

MR KIRBY: Just because something’s not classified doesn’t mean that it’s —

QUESTION: Well, we know that.

MR KIRBY: — that it’s okay to discuss here at the podium, Brad.

QUESTION: I know.

MR KIRBY: I mean, look, the – I’m not going to violate —

QUESTION: We know that classified isn’t the marker for you to —

MR KIRBY: I’m not going to violate the policy today.

 

DHS Proposes Collection of Social Media Identifier For U.S. Visitors

Posted: 2:20 am ET

Via the Federal Register:

On December 18, 2015, the President signed into law the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 as part of the Consolidated Appropriations Act of 2016. To meet the requirements of this new Act, DHS strengthened the security of the VWP by enhancing the ESTA application and Form I-94W. In two recent emergency submissions under the Paperwork Reduction Act, additional questions were added to ESTA and to Form I-94W that request information from applicants about countries to which they have traveled on or after March 1, 2011; countries of which they are citizens/nationals; countries for which they hold passports; and Global Entry Numbers.

DHS proposes to add the following question to ESTA and to Form I-94W:

“Please enter information associated with your online presence—Provider/Platform—Social media identifier.” It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.

The information collection is optional under the proposed rule.  DHS estimates that there will be over 32 million travelers who will be  Electronic System for Travel Authorization (ESTA) respondents and nonimmigrant visa respondents entering the United States and filling out the I-94 Arrival and Departure forms.

The question we have is 1) Will the baddies be dumb enough to provide their social media identifiers if they have nefarious intent during their travels? 2) Does DHS have a system that combs through this huge haystack to find a a few needles?

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Snapshot: Top Recipients of U.S. Assistance — FY1995, FY2005, FY2015

Posted: 1:35 am ET

Via CRS:

In FY2015, the United States provided some form of bilateral foreign assistance to about 144 countries. The following identifies the top 15 recipients of U.S. foreign assistance for FY1995, FY2005 and FY2015. Assistance, although provided to many nations, is concentrated heavily in certain countries, reflecting the priorities and interests of United States foreign policy at the time (via – PDF)

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New Directive: Social Media Info Collection For Security Clearance Background Investigations

Posted: 1:37 am ET

 

On May 12, 2016, the Director of National Intelligence (DNI) authorized the use of social media by official investigators who are conducting background investigations for security clearances.

The directive addresses the collection and use of publicly available social media information during the conduct of personnel security background investigations and adjudications for determining initial or continued eligibility for access to classified national security information or eligibility to hold a sensitive position and the retention of such information. This affects prospective hires and all employees who are subjects of periodic investigations.

The policy says that agencies “may choose to collect publicly available social media information in the personnel security hackground investigation process, which pertains to the covered individual’s associations, behavior and conduct, as long as the information pertains to the adjudicative guidelines for making determinations of initial or continued eligibility for access to classified information or eligibility to hold a sensitive position.”

  • Authorized investigative agencies may collect, usc, and retain publicly available social media information as part of a covered individual’s background investigation and, if collected, shall incorporate the relevant results in the investigative record. The period of coverage for publicly available electronic information will be consistent with the scope of the investigation.
  • Authorized adjudicative agencies may use and retain publicly available social media information when determining initial or continued eligibility of a covered individual for access to classified information or eligibility to hold a sensitive position.
  • Collection of publicly available social media information shall only be conducted after obtaining the signed Authorization for Release of information form of the Standard Form 86, Questionnaire for National Security Positions, which includes notice of the collection of such information.
  • Only publicly available social media information pertaining to the covered individual under investigation shall intentionally be collected. Absent a national security concern, or criminal reporting requirement, information pertaining to individuals other than the covered individual will not be investigated or pursued. Information inadvertently collected relating to other individuals will not be retained unless that information is relevant to a security determination or the covered individual.

The directive says that covered individuals “shall not be requested or required” to provide passwords, log into a private account; or take any action that would disclose non-publicly available social media information. Agencies are also precluded from creating accounts or using existing accounts on social media for the purpose of connecting (e.g., “friend”, “follow”) to a covered individual or enlist the assistance of a third party in order to bypass privacy controls and/or access otherwise non-publicly available social media information.

Read more below or see Collection, Use, and Retention of Publicly Available Social Media Information in Personnel Security Background Investigations and AdjudicationsSecurity Executive Agent Directive 5, May 12, 2016.

Via FAS/Secrecy News:

 

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Saudi Jewelry Gifts Questions: @StateDept Retains Gifts for the U.S. Diplomacy Center Collection

Posted: 3:30 am ET

Some questions have been raised about the gifts from Saudi Arabia, particularly a few specific, high valued items given to Secretary Clinton during her tenure as Secretary of State.  We’ve asked the State Department about this, and we were told that one gift is pending transfer to the GSA but three have been retained for the U.S. Diplomacy Center (@DiplomacyCenter) collection.  The United States Diplomacy Center which is scheduled to be completed in 2016 is a public private initiative which will include some 6,000 diplomatic artifacts  — via:

The Department of State is providing the space, staff and security, while the private sector will provide the funds to design and build the 40,000 sq. ft. facility. The Center includes a 20,000 sq. ft. exterior Pavilion and its informative exhibits about today’s Department of State in Hall 1, the Founding Ambassador Concourse below Hall I, and two interior Halls both of 10,000 sq. ft. each: one chronicling the history of the American diplomacy, and the other focusing on education. The USDC is located at the Department of State building on 21st Street at Virginia Avenue NW, in Washington, DC. Visit the USDC website www.Diplomacy.State.gov for information on the progress and developments of the creation of the United States Diplomacy Center.

The following response from a State Department spokesperson:

Per GSA guidelines, there is no timeline for reporting gifts of more than minimal value to GSA after they’ve been received. The Department of State reports all gifts of more than minimal value annually in the Federal Register and generally biannually directly to GSA when doing a transfer of gifts. The Department transfers the maximum quantity of gifts GSA has the capacity to accept.

When a gift is no longer being used for official use, it must be reported within 30 days to the Office of the Chief of Protocol, to pend transfer to GSA.

‎All four gifts in question are in the possession of the Department of State. The first three are in official use, as part of the collection of the U.S. Diplomacy Center. The final is being stored and pending transfer to GSA, and will be transferred when GSA has the ability to accept it.‎‎

Here are some gifts currently included in the Diplomacy Center’s online collection:

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Rainey v. @StateDept: Attention Whistleblowers — Rules and Regs Are Not Laws

Posted: 2:14 am ET

 

Last year, we blogged about a decision by the Merit Systems Protection Board concerning a Whistleblower Protection Act case where a State Department employee, Timothy Allen Rainey, alleged that the agency stripped him of certain job duties and gave him a poor performance rating after he refused to follow an order that would have required him to violate federal acquisition regulations (FAR) and training certification procedures. See Rainey v. State Department: “Right-to-Disobey” (Precedential Decision).

On June 7, 2016, the U.S. Court of Appeals for the Federal Circuit upheld the Merit Systems Protection Board ruling in a precedent-setting opinion — agreeing that the term “a law” in section 2302(b)(9)(D) refers only to a statute, and not to a rule or regulation.

In this IRA appeal, Rainey claimed that his duties as contracting officer had been taken away from him because he refused to obey his supervisor’s order to tell a contractor to rehire a terminated subcontractor.  Rainey contended that he refused to obey the order because dong so would have required him to violate a provision of the Federal Acquisition Regulation.  The issue was whether the right-to-disobey provision of the Whistleblower Protection Act, 5 U.S.C. §  2302(b)(9)(D), which protects covered employees from retaliation “for refusing to obey an order that would require the individual to violate a law,” applied to the appellant, who alleged that he had suffered retaliation for refusing to obey an order that would require him to violate a regulation.  The Board, relying on a recent Supreme Court decision, Department of Homeland Security v. MacLean, 135 S. Ct. 913 (2015), which held that the word “law” in the “right-to-disclose” provision of the WPA, 5 U.S.C. §  2302(b)(8), refers only to statute, and not to a rule or regulation, ruled that the term “a law” in section 2302(b)(9)(D) should also be interpreted to refer to a statute, and not to a rule or regulation.  122 M.S.P.R. 592 (2015).

The Court writes:

Dr. Rainey makes a final argument that the FAR is a particularly important regulation that has the full force and effect of law and therefore should be regarded as “a law” within the meaning of section 2302(b)(9)(D) even if other regulations do not qualify as “laws” for purposes of that statute. The first problem with that argument is that substantive agency regulations that are promulgated pursuant to statutory authority typically have the “force and effect of law,” see Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015); Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979), so that feature does not distinguish the FAR from other more quotidian legislative rules. The second problem with the argument is that, as noted, there is nothing in the section 2302(b)(9) that even hints at a distinction between important regulations and less important regulations; to the contrary, the statute distinguishes between “a law” and “law, rule, or regulation,” and the FAR clearly falls on the “regulation” side of that divide.

What now?  Court says “Congress is free to alter the scope of the statute”:

Dr. Rainey’s arguments are heavy on policy reasons why Congress likely would not have wanted to confine the scope of section 2302(b)(9)(D) to statutes. Those policy considerations are not without force, and it may be that the statute should be extended to cover rules, regulations, and other sources of legal authority. If so, Congress is free to alter the scope of the statute. But we are not so free. Between the restrictive language chosen by Congress and the closely analogous decision of the Supreme Court in MacLean, we are constrained to hold that the protection granted by section 2302(b)(9)(D) is limited to orders that are contrary to a statute, and does not encompass orders that are contrary to a regulation.

This is bad.  So basically State Department employees will not be able to get whistleblower protection for refusing orders that violate rules or regulations in the Foreign Affairs Manual/Foreign Affairs Handbook.  If a supervisor orders an employee to break the rules/regs in the FAM/FAH, the employee must comply or be subjected to disciplinary action/s?  How nutty is that?

Click here to contact your congressional representatives.

Read the ruling below or read it via mspb.gov here (PDF). 

 

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