Highlighting Heroes: Ambassador Marie Yovanovitch Honors Her Oath

It is highly likely that the State Department will not include Ambassador Marie Yovanovitch in its Highlighting Heroes initiative.  So we will do our own highlights here. No matter what is in the future for her, we and many others will remember her and honor her for her courage in speaking up first when it mattered most.
The secretary of state, proud … um defender of the rule of law only when convenient, told the committee Ambassador Yovanovitch may not attend the deposition without agency provided counsel (counsel that looks after the government not the employee’s interest), and the undersecretary for management, who oversees personnel at the State Department instructed her not to appear for a deposition. She was issued a congressional subpoena and appeared for her deposition and public testimony.
Her private counsel wrote to U/S Brian Bulatao: “Although the Ambassador has faithfully and consistently honored her professional duties as a State Department employee—including at all times following her abrupt termination as U.S. Ambassador to Ukraine—she is unable to obey your most recent directive.”
Excerpt from The Trump-Ukraine Impeachment Inquiry Report

Despite President Trump’s explicit orders that no Executive Branch employees should cooperate with the House’s impeachment inquiry and efforts by federal agencies to limit the testimony of those who did, multiple key officials complied with duly authorized subpoenas and provided critical testimony at depositions and public hearings. These officials adhered to the rule of law and obeyed lawful subpoenas.

Ambassador Marie Yovanovitch, Former U.S. Ambassador to Ukraine, Department of State
See PDF pp 245-247

On September 13, the Committees sent a letter to Secretary of State Mike Pompeo seeking a transcribed interview with Ambassador Marie Yovanovitch and other State Department officials.287

The Committees received no direct, substantive response to this letter. On September 27, the Committees sent a letter informing Secretary Pompeo that Ambassador Yovanovitch’s deposition was being scheduled on October 2, stating:

On September 13, the Committees wrote to request that you make State Department employees available for transcribed interviews. We asked you to provide, by September 20, dates by which the employees would be made available for transcribed interviews. You failed to comply with the Committees’ request.288

Also on September 27, the Committees sent a letter directly to Ambassador Yovanovitch seeking her appearance at a deposition on October 2.289

On October 1, Secretary Pompeo sent a letter to the Committees stating:

Therefore, the five officials subject to your letter may not attend any interview or deposition without counsel from the Executive Branch present to ensure that the Executive Branch’s constitutional authority to control the disclosure of confidential information, including deliberative matters and diplomatic communications, is not impaired.290

After further discussions with Ambassador Yovanovitch’s counsel, her deposition was rescheduled for October 11. On October 10, Brian Bulatao, the Under Secretary of State for Management, sent a letter to Ambassador Yovanovitch’s personal attorney directing Ambassador Yovanovitch not to appear for her deposition and enclosing Mr. Cipollone’s October 8 letter stating that President Trump and his Administration would not participate in the House’s impeachment inquiry. Mr. Bulatao’s letter stated:

Accordingly, in accordance with applicable law, I write on behalf of the Department of State, pursuant to the President’s instruction reflected in Mr. Cipollone’s letter, to instruct your client (as a current employee of the Department of State), consistent with Mr. Cipollone’s letter, not to appear before the Committees under the present circumstances.291

That same day, October 10, when asked whether he intended to block Ambassador Yovanovitch from testifying the next day, President Trump stated: “You know, I don’t think people should be allowed. You have to run a country, I don’t think you should be allowed to do that.”292

On the morning of Ambassador Yovanovitch’s deposition on October 11, the Committees sent a letter to her personal attorney transmitting a subpoena compelling her appearance, stating:

In light of recent attempts by the Administration to direct your client not to appear voluntarily for the deposition, the enclosed subpoena now compels your client’s mandatory appearance at today’s deposition on October 11, 2019.293

Later on October 11, Ambassador Yovanovitch’s personal attorney sent a letter to Mr. Bulatao, stating:

In my capacity as counsel for Ambassador Marie Yovanovitch, I have received your letter of October 10, 2019, directing the Ambassador not to appear voluntarily for her scheduled deposition testimony on October 11, 2019 before the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on Oversight and Reform in connection with the House of Representatives’s impeachment inquiry. Just this morning, the Ambassador received a subpoena issued by the House Permanent Select Committee on Intelligence, requiring her to appear for the deposition as scheduled. Although the Ambassador has faithfully and consistently honored her professional duties as a State Department employee—including at all times following her abrupt termination as U.S. Ambassador to Ukraine—she is unable to obey your most recent directive. As the recipient of a duly issued congressional subpoena, Ambassador Yovanovitch is, in my judgment, legally obligated to attend the depositions as scheduled.294

Ambassador Yovanovitch participated in the deposition on October 11, in compliance with the Committees’ subpoena.295 During her deposition, Ambassador Yovanovitch’s personal attorney confirmed that “she received a direction by the Under Secretary to decline to appear voluntarily.”296

On November 15, the Committees transmitted a subpoena to Ambassador Yovanovitch compelling her to testify at a public hearing of the Intelligence Committee that same day.297 Ambassador Yovanovitch complied with the Committees’ subpoena and testified at the public hearing. During the hearing, Chairman Schiff acknowledged Ambassador Yovanovitch’s compliance, stating:

Ambassador, I want to thank you for your decades of service. I want to thank you, as Mr. Maloney said, for being the first one through the gap. What you did in coming forward and answering a lawful subpoena was to give courage to others that also witnessed wrongdoing, that they, too, could show the same courage that you have, that they could stand up, speak out, answer questions, they could endure whatever threats, insults may come their way. And so in your long and distinguished career you have done another great public service in answering the call of our subpoena and testifying before us today.298

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@StateDept Releases First Ukraine-Related Documents Under FOIA

 

The State Department is about to get inundated once more with FOIA requests.  Anyone anticipating an “FOIA surge” this time around? You may download the documents here, the first set in a court-ordered document production via American Oversight.
The November 1 court order from the U.S. District Court for the District of Columbia ruled that the State Department must search for and produce by November 22, 2019 records from Secretary of State Mike Pompeo and counselor Ulrich Brechbuhl containing any readouts or summaries of President Trump’s July call with the President of Ukraine.
We’ve looked through a hundred pages of these newly released documents, and while the most notable are the telephone calls between Mr. Giuliani and the secretary of state (two calls referred to in the Hale deposition), there does not appear to be any documents specific to readouts and summaries of the July 25 call.
So, how soon do you think before we’ll see those documents?

 

Impeachment Inquiry: Public Document Clearing House (Via JustSecurity)

 

 

Office of Special Counsel Announces Suspensions of Two Federal Employees Over Hatch Act Violations

 

On October 18, the Office of Special Counsel announced disciplinary actions imposed on two federal employees working for the Defense Logistics Agency (DLA) for Hatch Act violations.

​The U.S. Office of Special Counsel (OSC) today announced significant discipline imposed on two federal employees working for the Defense Logistics Agency (DLA) who engaged in prohibited political activity in violation of the Hatch Act.

One DLA employee violated the Hatch Act on numerous occasions by sending partisan political emails and making political Facebook posts while at work.  The employee also used Facebook to solicit political contributions nearly two dozen times in violation of the Act.  During OSC’s investigation, the employee admitted he was aware of the Hatch Act and that his supervisor had counseled him about the Act prior to engaging in the prohibited activity.  In a settlement agreement, the employee agreed to a 90-day suspension without pay.

Another DLA employee violated the Hatch Act by displaying the words “Vote Republican” on a PowerPoint presentation that he gave while on duty and in the federal workplace.  The employee had received extensive Hatch Act training and was explicitly told prior to giving the presentation that certain images he planned to use, including the “Vote Republican” image, would be problematic.  In a settlement agreement, the employee agreed to a 30-day suspension without pay for his violation.

“With election season drawing near, it is critical that federal employees understand and abide by their Hatch Act obligations,” said Special Counsel Henry J. Kerner. “As demonstrated in these two cases, there are significant repercussions for federal employees who violate the Hatch Act.”

Note that last June, the U.S. Office of Special Counsel (OSC) sent a report to President Donald J. Trump finding that Counselor to the President Kellyanne Conway violated the Hatch Act on numerous occasions by disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media. “Given that Ms. Conway is a repeat offender and has shown disregard for the law, OSC recommends that she be removed from federal service.”
On June 13, the U.S. Office of Special Counsel (OSC) said it “respects the Office of White House Counsel but respectfully disagrees with its position, and will not withdraw its Report​ sent to the President today finding numerous Hatch Act violations made by Counselor to the President Kellyanne Conway (OSC File Nos. HA-19-0631 and HA-19-3395).”

USEU Sondland Turns Over WhatsApp Messages and Other Docs to @StateDept

 

Via Yahoo News:

The State Department waited until 12:30 a.m. on Tuesday to tell U.S. Ambassador Gordon Sondland not to show up for his scheduled deposition with three House committees later that morning, the ambassador’s lawyer told Yahoo News. Robert Luskin, Sondland’s attorney, said he got the extraordinary middle-of-the-night directive in a phone call from a State Department official he declined to identify. The official offered no explanation of the grounds on which the State Department was blocking Sondland’s appearance at the last minute.

Michael Isikoff reported that Luskin confirmed that Sondland has already turned over to the State Department WhatsApp messages, text messages and other documents in his possession relevant to the House investigation.
Also, which State Department official made the call to Sondland at 12:30 a.m.? Curious people wants to know.

Diplomatic Security Investigating as Many as 130 Former/Current @StateDept Officials Over Clinton Emails

 

In May 2016, State/OIG released its report on Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements.
WaPo recently reported about the investigation of email records by some 130 current and former State Department during Secretary Clinton’s tenure as Secretary of State includes a quote from an unnamed senior State Department official denying this has anything to do with who sits in the White House.

“This has nothing to do with who is in the White House,” said a senior State Department official, who spoke on the condition of anonymity because they were not authorized to speak publicly about an ongoing probe. “This is about the time it took to go through millions of emails, which is about 3½ years.”

Is this senior SDO anyone we know from Public Affairs?
Secretary Clinton left the State Department in 2013, over six years ago.  And the SDO said that This has nothing to do with who is in the White House?” 
Did the SDO say it with a straight face?
A side note, folks reading statements out of the State Department should be aware that the agency has ground rules for interviewing its officials. The ground rules are not new, but given the track record of this administration, it is worth taking a pause when they volunteer information.
SDO adds that “This is about the time it took to go through millions of emails, which is about 3½ years.” And yet, the letter received by a former State Department employee was apparently received this past August, and begins with “Recently, the Department of State’s Bureau of Diplomatic Security conducted a classification review of emails … (see letter below). What does “recently” actually means? What’s the timeline for this troubling project by Diplomatic Security? During Secretary Kerry’s tenure? At the beginning of Secretary Tillerson’s tenure? At the start of Mike Pompeo’s tenure? 
The WaPo report also includes an item about Ambassador Jeffrey Feltman who served as US Assistant Secretary of State for Near Eastern Affairs from August 2009 to June 2012, and went on to become Under-Secretary-General for Political Affairs at the United Nations (2012-2018):

“I’d like to think that this is just routine, but something strange is going on,” said Jeffrey Feltman, a former assistant secretary for Near East Affairs. In early 2018 Feltman received a letter informing him that a half dozen of his messages included classified information. Then a few weeks ago he was found culpable for more than 50 emails that contained classified information.

“A couple of the emails cited by State as problems were sent after my May 2012 retirement, when I was already working for the United Nations,” he said.

Below is a link to a letter sent out by Diplomatic Security and posted on CNN’s website. CNN notes that “A former US official who left the State Department in 2012 received a letter in August informing him that dozens of his emails that had been sent to then-Secretary of State Hillary Clinton were now being recategorized as classified.”
They’re doing retroactive classification and penalizing people for it.
They’re also asserting that a then UN official was  covered by US security classification?  Is this what a diplomatic squeegee looks like?
The letter published by CNN came from a little known office called “Program Applications Division” (APD) under Diplomatic Security’s Office of Information Security Programs. 
An earlier update of May 19, 2017 of 12 FAM 221.4 DS Personnel Authorized to Conduct Investigations notes:

Special agents of the Diplomatic Security Service, credentialed security specialists assigned to the Programs Application Division (DS/IS/APD), and credentialed special investigators assigned to the Office of Personnel Security and Suitability (DS/SI/PSS) conduct investigations as authorized by statute or other authority. DS authorizes special agents in the field offices and RSOs abroad to open investigations and provides direction and guidance for conducting those investigations.”

Per 1 FAM 262.7-1(A), updated in September 2018, DS/IS/APD administers the Department’s information protection program. It also notes that it:

Administers the Department’s Security Incident Program and coordinates cases subject to disciplinary actions with the Bureau of Human Resources, Office of Employee Relations (HR/ER), the DS Office of Personnel Security and Suitability (DS/SI/PSS) and the Bureau of Intelligence and Research (INR) regarding security clearance and special access concerns.”

A December 17, 2018 update of 12 FAM 558 marked Criminal Laws  say that Incidents involving intentional or grossly negligent release or mishandling of classified information may result in criminal penalties.  An illustrative list of criminal statutes establishing penalties of fine and imprisonment for the release of classified information is in 12 FAM Exhibit 558.”  

 

Pompeo Now Concerned About Improper Treatment of “Distinguished Professionals”

 

Secretary Pompeo who has not done much about the improper treatment of career professionals
— such as inappropriate practices including disrespectful and hostile treatment of employees, accusations against and harassment of career employees premised on claims that they were “disloyal” based on their perceived political views, and retaliation associated with conflicts of interest — despite the departure of some 50 employees from a bureau with 300 staffers —
is now concerned about “attempt to intimidate, bully, & treat improperly the distinguished professionals of the Department of State, including several career FSOs” from congressional committees exercising their oversight function.
Oopsie! We almost peed from laughing so hard!
Also, late breaking news says that State/OIG Steve Linick will be holding an “urgent” briefing Wednesday afternoon for staffers from several House and Senate Committees apparently “to discuss and provide staff with copies of documents related to the State Department and Ukraine.” The reported source of the documents is the Acting Legal Adviser.
The most recent Senate-confirmed Legal Adviser was Jennifer Gillian Newstead who served from January 22, 2018 to May 31, 2019 and is now the General Counsel at Facebook.
Marik A. String assumed office as Acting Legal Adviser on June 1, 2019. Mr. String state.gov’s bio says that he has 15 years of legal, policy, and military experience at the Department of State, Department of Defense, United States Senate, think tanks in the United States and overseas, and in private legal practice.” He also previously served as Senior Advisor to Deputy Secretary of State John Sullivan. Prior to private law practice, Mr. String served on the U.S. Senate Committee on Foreign Relations, where he held responsibilities as Deputy Chief Counsel and Senior Professional Staff Member. Mr. String, an officer in the U.S. Navy Reserve was educated at Georgetown University (J.D., Global Law Scholar), where he was an editor for The Georgetown Law Journal and at the University of Vienna (M.A., Fulbright Scholar). See Just Security’s piece on this appointment from June 2019.

Trump Threatens Retaliation Against Countries That Issue Travel Warnings For USA #GetReady

 

 

On August 10, USA Today reported that the president has threatened retaliation Friday against countries and organizations that issue travel warnings on the United States because of gun violence (see Amnesty International Issues Travel Advisory For the United States of America).
The president said during the gaggle “We are a very reciprocal nation with me as the head. When somebody does something negative to us in terms of a country, we do it to them.”
Oh, Lordy, that’s going to be the end of the State Department’s Travel Advisories, wouldn’t it? Better not show him the other countries’ color coded map of the United States where these gun violence is happening, or that’s going to blow up the State Department’s travel advisory travel map, too.

But seriously, per Foreign Affairs Manual, the travel advisories are part of the Consular Affairs’ Consular Information Program (CIP). It is a public outreach program through which the Department of State, through the Bureau of Consular Affairs (CA), and U.S. embassies and consulates, “inform U.S. citizens and nationals of potential threats to their health or safety abroad and provide information about consular services.” Also this:
“All information provided to the public through the CIP represents the Department’s objective assessment of conditions in a given country based on reliable information available at the time of publishing, as reported by posts, various Department bureaus, other U.S. government agencies and departments, foreign governments, and credible open sources.”
Most importantly is this:
“Information provided through the CIP, including Travel Advisories and Alerts for U.S. citizens, is based on the overall assessment of the situation in country.  By necessity, this analysis is undertaken without regard to political or economic considerations.”
The Travel Advisory Review Committee (TARC) brings Department stakeholders together to discuss security information and how it is relayed via Travel Advisories.  TARC includes representatives from the Bureau of Diplomatic Security, (DS/TIA/ITA); Post’s regional bureau; the Office of the Under Secretary for Political Affairs; the Office of the Under Secretary for Management; Representatives from other bureaus as appropriate based on the threat, to include: 1) Coordinator for Counter Terrorism (CT), when the threat is terrorism related; 2) Medical Services, when the threat is health related; 3) Bureau of Economic and Business Affairs (EB/TRA/OP), if there are aviation issues; 4) Legal offices (OCS/L/CA), when there are legal issues; 5) The Office of the Under Secretary for Arms Control and International Security (T), when there is a nuclear issue; 6) Bureau of Oceans and International Environmental and Scientific Affairs (OES), when the threat is environmental; and 7) Bureau of Democracy, Human Rights and Labor (DRL), if threat presents human rights concerns, such as LGBTI issues.
The TARC is chaired by CA’s Overseas Citizen Services, an office that reports to the Assistant Secretary for Consular Affairs Carl Risch. Mr. Risch, however, has overall responsibility for the Consular Information Program (CIP), to include supervising and managing the program, and is authorized to determine the final wording of all products. CA’s Carl Risch reports to the Under Secretary for Management Brian Bulatao. U/Secretary Bulatao in turn reports to the Deputy Secretary John Sullivan and Secretary Mike Pompeo.
So, if this president starts retaliating against countries that issue Travel Warnings for the United States, who’s going to tell him “no”?  We’re ready to borrow the rules from the World Rock Paper Scissors Society, if needed.

 

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Snapshot: @StateDept’s Redesign Timeline and USAID’s Suspended Cooperation

 

 

 

State and USAID submitted a joint reform plan to OMB in September 2017. According to USAID documents, USAID suspended its coordination with State in January 2018 because State could not articulate the objectives for the joint reform effort. GAO has ongoing work reviewing the status of USAID’s reform efforts.

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