FSGB Case: Why You Should Not/Not Take Your Hard Drive With You When Departing Post

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The FSGB Annual Report for 2021 mentions a disciplinary case where  the Board affirmed the agency’s decision in a case concerning an information security violation (FSGB Case No. 2018-030). So we went and looked up the case which includes Charge 1 for failure to follow proper security procedures:

12 FAM 625.2-2 Removal of Microcomputers, Media and Software
Personnel are prohibited from removing U.S. Government microcomputers or media from Department premises without the prior written approval of the [Information Systems Security Officer] ISSO and additionally, if abroad, the RSO or [Post Security Officer] PSO.

And Charge 2 for failure to safeguard government property:

12 FAM 622.1-7 Protection of Media and Output
… (b)(2) Abroad: Media shipped between posts must be sent at a minimum by controlled shipment.
( c) The data center manager and the system manager must label removable media either UNCLASSIFIED or SBU.

Overview via ROP:
Held – The Department of State (Department, agency) has established via preponderant evidence that grievant violated Department regulation both in removing a Sensitive But Unclassified hard drive from his computer and taking it with him to his next post, and in failing to comply with the requirement to use a controlled shipment in returning it to post. On review, the Board finds that the proposed penalty is reasonable.
Case Summary – Grievant, a removed the Sensitive But Unclassified hard drive from his computer when leaving post in and took it on to his next post without reporting his action or seeking permission from the Information Systems Security Officer or the Regional Security Officer at post. When the RSO in asked him to return the hard drive, grievant mailed it back to post via an uncontrolled shipment, but it never arrived. The Department charged him with Failing to Follow Proper Security Procedures for removing the hard drive without permission, and Failure to Safeguard Government Property, for failing to return the hard drive in conformity with regulatory requirements for a controlled shipment.
Grievant appealed to this Board on the grounds that the Department had failed to prove by preponderant evidence that his stated method of shipment of the hard drive was not, as he contended, compliant with the rules for a controlled shipment; that the Department had failed to take into account the mitigating circumstances of a toxic atmosphere and widespread wrongdoing at post; that the Department had misapplied the appropriate penalty considerations (Douglas factors) and chosen inapposite comparator cases; and that the penalty was disproportionate, as the hard drive was only SBU, in contrast with classified documents involved in the comparator cases.
The Board determined that the Department met its burden of proving the charges of Failure to Follow Proper Security Procedures and Failure to Safeguard Government Property, that the penalty imposed was not inconsistent with comparator cases, and that the Douglas factors were properly applied.

Photo by Pixabay on Pexels.com

Background via ROP:

Grievant is an FO-02 REDACTED who began his Foreign Service career as an REDACTED in 2001. At the time of the initial event giving rise to this grievance, he was serving as head of the management section in REDACTED a position he held from October 2012 until his voluntary curtailment in September 2013.

During the course of his assignment to REDACTED by his own account, a number of conflicts developed between grievant and the Chargé d’Affaires (Chargé), the General Services Officer (GSO), who reported to grievant, the Regional Security Officer (RSO) and other individuals at post. Grievant became frustrated that officials in Washington were not investigating or otherwise responding adequately, in his view, to his allegations of malfeasance, mismanagement and child abuse against various individuals serving in REDACTED Grievant decided to volunteer for an assignment at REDACTED , that required immediate voluntary curtailment from REDACTED.

Just before his departure from post in September 2013, grievant became concerned that a colleague or colleagues would attempt to retaliate against him for his claimed knowledge of irregularities in post management and individual malfeasance, or that a subordinate would file a grievance based on a negative EER written by grievant. He stated that he wished, in his own defense and to expose mismanagement, to bring with him numerous documents and emails proving his allegations, but was unable to “download” or print them, as they were too big. (The documents he stated he would need for this purpose included a .pst file of all emails he had sent or received in his time at post, as well as a number of other unspecified documents.) He therefore decided, under pressure of time, to remove the SBU hard drive from his computer and take it with him.1

Grievant states that he received oral permission to take the hard drive from a local employee in the IT section, whose name he did not know or remember. He chose not to inform or request permission from the Regional Security Officer (RSO) and the Information Systems Security Officer (ISSO) in REDACTED as required by the FAM, because the ISSO was away from post and grievant thought the RSO would refuse him permission because the documents grievant wanted to preserve implicated the RSO in wrongdoing. He stated that he needed to physically take the hard drive in order to “preserve the data” to potentially present to investigating authorities in Washington, and “my thought was to take everything I could should something come up.”2 He then took the hard drive with him upon departing post. After removing the hard drive and leaving post, grievant took no further action to report to any investigating body the alleged irregularities and malfeasance in REDACTED. He explained to the Deputy Assistant Secretary reviewing the proposed penalty that “since no one seemed to care, I didn’t.”3

A local employee subsequently reported his removal of the hard drive to the RSO. At some unspecified point after grievant’s arrival in REDACTED , the Regional Security Officer in REDACTED contacted him to request return of the hard drive.4 However, despite grievant’s assertions that he attempted to return it, the hard drive never arrived back in REDACTED. At some later point, the RSO reported the incident to Diplomatic Security (DS); in a subsequent DS interview on July 15, 2016, grievant stated that he had “attempted to return the drive via packaging sent back to the [REDACTED Embassy [diplomatic] pouch office on board a post support flight [a supply flight between REDACTED and REDACTED operated by a U.S. contracting company], ….”5 He had no further information during that interview about exactly how or when he had done so, or the current whereabouts of the hard drive.

In its decision, the FSGB concluded:

We therefore find that the Department’s choice of penalty, in a case involving both unauthorized removal of a sensitive item of media, and subsequent failure to return it, as required, via a controlled shipment, resulting in loss of the item and potential compromise of personally identifiable information pertaining to the U.S. diplomats serving abroad, is reasonable.64 The Department has a legitimate interest in ensuring the safeguarding and preservation of sensitive agency materials. As such, there is a clear nexus between the proven charges and the efficiency of the Service.

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Career Diplomat Daniel J. Kritenbrink to be Asst Secretary of State for East Asian and Pacific Affairs (EAP)

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On March 26, 2021, President Biden announced his intent to nominate senior career diplomat Daniel J. Kritenbrink to serve as Assistant Secretary of State for East Asian and Pacific Affairs (EAP). The WH released the following brief bio:

Daniel J. Kritenbrink, a career member of the Senior Foreign Service, Class of Minister-Counselor, has been U.S. Ambassador to Vietnam since 2017.  He was previously the Senior Director for Asian Affairs at the National Security Council, and Deputy Chief of Mission at the U.S. Embassy in Beijing.  In earlier tours in Beijing, he served as Political Minister Counselor, and as a Political Officer.  Kritenbrink was Director of the Office of Chinese and Mongolian Affairs at the Department of State.  He also served as a Political-Military officer at the U.S. Embassy in Tokyo.  Kritenbrink earned a Masters Degree at the University of Virginia, and a Bachelors Degree at the University of Nebraska-Kearney.  He speaks fluent Chinese and Japanese.

According to history.state.gov, the Division of Far Eastern Affairs, established in 1908, was the first geographical division to be established in the Department of State. The Department of State established the position of Assistant Secretary of State for Far Eastern Affairs in 1949, after the Commission on Organization of the Executive Branch of Government (Hoover Commission) recommended that certain offices be upgraded to bureau level and after Congress increased the number of Assistant Secretaries of State from six to ten (May 26, 1949; P.L. 81-73; 63 Stat. 111). On Nov 1, 1966, the Department by administrative action changed the incumbent’s designation to Assistant Secretary for East Asian and Pacific Affairs.
The last three appointments to this position were political appointees.  We have to go back all the way to 2005 to find a career appointee for EAP; that’s Christopher Robert Hill who served from 2005–2009.
Previous appointees to this position include Philip Charles Habib (1974–1976); Richard Charles Albert Holbrooke (1977–1981); William Averell Harriman (1961–1963); and Winston Lord (1993–1997). The complete list is here.

 

Related posts:

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Career Diplomat Brian A. Nichols to be Asst. Secretary of State for Western Hemisphere Affairs (WHA)

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On March 26, 2021, President Biden announced his intent to nominate senior career diplomat Brian A. Nichols to be Assistant Secretary of State for Western Hemisphere Affairs (WHA). The WH released the following brief bio:

Brian A. Nichols, a career member of the Senior Foreign Service with the rank of Career Minister, currently serves as U.S. Ambassador to Zimbabwe.  He was U.S. Ambassador to Perú from 2014 to 2017.  Previously, Nichols served as Principal Deputy Assistant Secretary of State for International Narcotics and Law Enforcement Affairs (INL).  Prior to that he was a Deputy Assistant Secretary in INL.  He also served as the Deputy Chief of Mission at the U.S. Embassy in Bogotá, Colombia, Director of the Office of Caribbean Affairs, and Counselor for Political Affairs at the American Embassy in Indonesia.  Earlier in his career, Nichols served as Deputy Political Counselor in Mexico.  He also worked in the Office of UN Political Affairs, the Office of Central American Affairs, and the Executive Secretariat. Nichols began his Foreign Service career as a Consular Officer in Perú and then as a Political Officer in El Salvador.  He received the 2016 Charles E. Cobb, Jr. Award for Initiative and Success in Trade Development, two Presidential Meritorious Service Awards, and 13 Senior Performance Awards.  He speaks Spanish.  A native of Rhode Island, he is a graduate of Tufts University.

According to history.state.gov, the Department had first established a Division of Latin American Affairs in 1909. The Department of State created the position of Assistant Secretary of State for American Republic Affairs during the general reorganization of Dec 20, 1944, after Congress had authorized an increase in the number of Assistant Secretaries of State from four to six (Dec 8, 1944; P.L. 78-472; 58 Stat. 798). On January 12, 1999, the Bureau assumed responsibility for Canada and was renamed the Bureau of Western Hemisphere Affairs. More here.
The most recent career diplomat confirmed by the U.S. Senate to lead the Western Hemisphere bureau was Thomas Alfred Shannon Jr. who served from 2005–2009. He was succeeded by political appointees: Arturo Valenzuela (2009–2011), Roberta S. Jacobson (2012–2016) under the Obama Administration and Kimberly Breier (2018-2019) under the Trump Administration. At least four designates have also served in an acting capacity: political appointee Mari Carmen Aponte; SES Michael Kozak, career diplomats Francisco “Paco” Palmieri and Julie J. Chung .
According to AFSA’s appointment tracker going back to 1975, the Western Hemisphere bureau has a 50 percent split between career and political/other appointees.
The AP notes that Ambassador Nichols would be the first Black assistant secretary of state for Western Hemisphere affairs since Terence Todman in the late 1970s (see Terence Alphonso Todman ).

Related posts:

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@StateDept Appoints Career Sr. Diplomat Ricardo Zúñiga as Special Envoy for the Northern Triangle

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Earlier this week, the State Department announced the appointment of career senior diplomat Ricardo Zúñiga to be the Special Envoy for the Northern Triangle. 

The Department of State is pleased to announce that Ricardo Zúñiga, a career member of the Senior Foreign Service, will serve as its Special Envoy for the Northern Triangle. The Special Envoy will lead U.S. diplomatic efforts, advise the Secretary and Acting Assistant Secretary for the Bureau of Western Hemisphere Affairs, and coordinate closely with the National Security Council staff on the administration’s comprehensive efforts to stem irregular migration to the United States and implement President Biden’s multi-year, $4 billion to address root causes of migration in Central America.

The Special Envoy will engage with regional governments, including but not limited to Mexico, El Salvador, Guatemala, and Honduras, on a range of issues in order to seek to improve conditions in Central America. He also will hold our partners accountable for their commitments to address root causes of migration and the increase in arrivals of unaccompanied children at the U.S. southern border. Additionally, the Special Envoy will engage stakeholders in civil society and the private sector as we work toward building better futures in these countries.

As such, he will accompany White House senior officials to Mexico and Guatemala March 22-25.

The Special Envoy will also keep Congress apprised of our efforts.

The Department congratulates U.S. Special Envoy Zúñiga as he takes on his new role and thanks him for his continued service to his country.

In May 2015, Mr. Zuniga completed a three-year detail with the National Security Council Staff, where he served as a Special Assistant to then President Obama and was Senior Director for Western Hemisphere Affairs.  In July that year, he assumed charged as Consul General of the U.S. Consulate General in Sao Paulo, Brazil. Also see Secretary Kerry With U.S. Delegation Set For Ceremonial Reopening of U.S. Embassy Cuba. According to his Wilson Center bio, until March 15, 2021, he was the Interim Director of the Brazil Institute and a Senior Diplomatic Fellow at the Woodrow Wilson Center Latin America Program, on detail from the U.S. Department of State.


 

 

Presentations of Credentials: U.S. Ambassadors to Timor-Leste, Venezuela

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Presentations of Credentials: U.S. Ambassadors to Djibouti, Ethiopia, Burundi, Uganda

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@StateDept Updates FAM For Individuals Serving as Designated Chiefs of Mission

One part of the ARB-Cuba report addressed guidance provided to the chief of mission (see ARB on Havana Syndrome Response: Pray Tell, Who Was in Charge?):
The ARB report reveals: “In exploring the guidance given to the COM regarding his responsibility for the security of all executive branch employees, the Board learned the COM did not have a letter of instruction. Presidentially-appointed, Senate-confirmed ambassadors all receive a letter of instruction from the President detailing their responsibilities. Typically the responsibility for the safety and security of American citizens and U.S. government employees features prominently in these letters. In other posts where a COM is not Senate confirmed, the Department sometimes issues a letter of instruction from the Secretary of State which serves a similar purpose.”
On February 19, 2021, the State Department updated 3 FAM 1420, the Transfer of Office for Chiefs of Mission and Other Principal Officers.  The updated regs actually is in referenced to “Designated Chief of Mission” positions.  Assignments as CdA a.i. to designated COM positions go to the D Committee for approval and are approved by either the secretary or deputy secretary.  See 3 FAH-1 H-2425.8-2(B).  The new updates also notes that Designated COMs must “receive a briefing on intelligence oversight responsibilities from the Bureau of Intelligence and Research (INR) and confirm in writing that they have read and understood the Secretary’s guidance to individuals performing the functions of a COM (3 FAM 1427).”
One section addresses the general policy:
3 FAM 1422  GENERAL POLICY
(CT:PER-1028 ;  02-19-2021)
(State Only)
(Applies to Foreign Service Employees Only)
a. This policy establishes the roles, responsibilities, and processes for ensuring relevant statutory and other requirements are met when designating individuals to serve as Chargé d’Affaires ad interim (CdA a.i.) in the absence of the Chief of Mission (COM).  The requirements set forth in this policy apply regardless of the length of time the individual will be serving as CdA, a.i. This policy also addresses transfer of the principal officer at consulates and interest sections.
b. The term “transfer of office”, as used here refers to the permanent or temporary transfer of the authorities and responsibilities vested in the principal officer for the management of the post and the conduct of its operations.  A permanent transfer of office occurs whenever an officer relinquishes charge of a post and does not expect to resume charge of that post, or whenever directed by the Department.  A temporary transfer occurs whenever an officer relinquishes charge of a post with the expectation of resuming charge of the post.
c.  The legal authorities cited in 3 FAM 1421 support the practice of designating principal officers at certain posts as CdA, a.i., Consul General, or principal officer with COM authority.  These three categories are referred to as Designated Chiefs of Mission (List available at 2 FAH-2 H-112).  Incumbents in Designated COM positions are not appointed by the President with the advice and consent of the Senate and do not have the ambassador title.  They also do not receive a Letter of Instruction by the President. The policy in 3 FAM 1420 also applies to individuals serving as Designated COMs and provides guidance to those individuals on their responsibilities. Designated COMs, like other CdAs, a.i. need approval by the Under Secretary for Management (M) and required guidance and briefings, but because Designated COMs are not filling in during the absence of a COM, the transfer of office provisions in 3 FAM 1420 do not apply.
Another section addresses the criteria for individuals serving as CDAs.  This update says that individuals on a Foreign Service limited non-career appointment  or a while actually employed (WAE) appointment, which is an appointment into the Civil Service, do not qualify as career FSOs and therefore may not serve as CdA, a.i. See 3 FAM 1427 for guidance outlines responsibilities for CdA, a.i.s.
3 FAM 1425  CRITERIA FOR INDIVIDUALS SERVING AS CDA
(CT:PER-1028;  02-19-2021)
a. Any individual serving as CdA pursuant to Section 502(c) of the Foreign Service Act must be a career FSO.  This includes retired career FSOs recalled for service under section 308(a) of the Foreign Service Act. Recall appointments are approved by the director general of the Foreign Service and the individual recalled must also be approved by the Under Secretary for Management (M) in order to serve as CdA, a.i.  Individuals on a Foreign Service limited non-career appointment  or a while actually employed (WAE) appointment, which is an appointment into the Civil Service, do not qualify as career FSOs and therefore may not serve as CdA, a.i.
b. Factors regional bureaus may consider when nominating individuals to serve as CdA, a.i. include: past experience as CdA, a.i. or DCM, experience managing multi-dimensional and complex teams, experience working with the interagency, relevant country and regional experience, number of years of service, and demonstrated ability to mentor and lead staff.
c.  Pursuant to Section 502(c) of the Foreign Service Act and Delegation 462, M approval is required in order for an individual other than a DCM or suitable senior officer at post to serve as CdA, a.i. The regional bureau’s assistant secretary must send an action memo to M identifying the individual identified to serve as CdA, a.i. and outlining the individual’s qualifications and the rationale for designating the individual’s qualifications and the rationale for designating the individual as CdA, a.i.
d. Individuals who serve or are expected to serve as CdA, a.i. for more than 30 consecutive days, including Designated COMs, must also have authorization to access to Sensitive Compartmented Information. Additionally, he/she must receive a briefing on his/her intelligence oversight responsibilities from the Bureau of Intelligence and Research (INR).  If already at post, he/she should contact INR/OPS to receive a secure virtual briefing. 
e. Regional bureaus must ensure that the individual does not travel to post or assume charge until required briefings have been completed.
f.  Prior to departing for post, any individual who will be serving as CdA, a.i. must confirm in writing that he or she has read and understands the Secretary’s guidance to individuals performing the functions of a COM (3 FAM 1427).  If already at post, this written confirmation should be part of the notification process outlined in 3 FAH-1 H-1425.

 

 

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

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

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

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

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


 

 

Ambassador Linda Thomas-Greenfield Assumes Charge @USUN

 

On February 23, Ambassador Linda Thomas-Greenfield was confirmed by the U.S. Senate to be the Representative of the United States of America to the United Nations (Record Vote Number: 61- Confirmed by the Senate by Yea-Nay Vote. 78 – 20. ) and  to be Representative of the U..S.A. to the Security Council of the United Nations (Record Vote Number: 64 Confirmed by the Senate by Yea-Nay Vote. 78 – 21).
The Chief of Mission to USUN has the title of Representative of the U.S.A. to the United Nations, with the rank and status of Ambassador Extraordinary and Plenipotentiary, and Representative of the U.S.A. in the Security Council of the United Nations. The U.S. Mission to the United Nations was formally established with that title, by E.O. 9844 of April 28, 1947.
According to history.state.gov, the first Representative of the U.S.A. to the United Nations was Edward Reilly Stettinius Jr. who also served as 48th Secretary of State from December 1, 1944, until June 27, 1945, under Presidents Franklin Delano Roosevelt and Harry S. Truman. He oversaw the end of the Second World War in Europe and the creation of the United Nations. Previous non-career appointees to this position include Madeleine Korbel Albright (1993–1997) who went on to become the 64th Secretary of State and George Herbert Walker Bush (1971–1973) who became 41st POTUS.
The CRS says that President Eisenhower appears to have been the first President to accord Cabinet rank to his Permanent Representative, Henry Cabot Lodge Jr., in 1953. Of the 30 individuals who have served since 1946, approximately two-thirds have been accorded Cabinet rank by Presidents.
Under the Biden Administration, the USUN Ambassador has cabinet-level status giving Ambassador Thomas-Greenfield a seat on the  National Security Council. This was not the case during her most immediate predecessor. President Biden stated  that he will accord Cabinet status to Greenfield “because I want to hear her voice on all the major foreign policy discussions we have.”
The last career diplomat appointed as Chief of Mission to USUN was John Dimitri Negroponte who served from 2001–2004. Other career diplomats appointed to this position include Edward Joseph Perkins (1992–1993), Thomas Reeve Pickering (1989–1992), and Charles Woodruff Yost (1969–1971).
Ambassador Thomas-Greenfield is only the 5th career diplomat to be appointed to this position.  It looks like she is the first female Foreign Service Officer  to hold a cabinet-level position.

 


 

President-Elect @JoeBiden to Name Ambassador Linda Thomas-Greenfield as UN Ambassador