Office of Legal Adviser’s Doctored Video Report Nets an “E” For Empty (Updated With OIG Comment)

Posted: 3:17 am ET
Updated: 2:06 PT — Comments from State/OIG

 

UpdateOIG conducted an independent preliminary assessment of issues surrounding missing footage from the Department’s December 2, 2013, daily press briefing (DPB). Specifically, OIG examined whether sufficient evidence is available for review and whether the issues in question are suitable for any further work. As part of this effort, OIG interviewed relevant staff; reviewed relevant emails, documents, and Department policies; and consulted with the Office of the Legal Adviser and the National Archives and Records Administration (NARA).

The results of our preliminary assessment show that limited evidence exists surrounding the December 2 DPB and that the available facts are inconclusive. However, the identification of the missing footage prompted the Department to improve its video policies. Specifically, the Department explicitly prohibited DPB content edits and is currently working with NARA to schedule the DPBs for disposition as federal records.

No further work by OIG would add clarity to the events surrounding the missing footage or effect any additional change at the Department. End Update

***

So, we got a copy of the Office of Legal Adviser’s (OLA) report on that video editing controversy. Lots more words, but the result mirrors the preliminary report announced back in June  — we don’t know who was responsible for it and we still don’t know why the video was purposely edited. To recap:

  • On May 9,2016, Fox News reporter James Rosen informed the Department that footage was missing from the Department’s daily press briefing video from December 2, 2013. The footage concerned Iran.
  • The Bureau of Public Affairs (PA) looked into the matter and confirmed that approximately nine minutes of footage were missing from the versions of the briefing video posted on YouTube and on state.gov.
  • On May 11, a technician in PA’s Office of Digital Engagement reported a recollection of making an edit to a video of that daily press briefing in response to a request over the phone from elsewhere in Public Affairs. The technician could not, however, remember who made the request.
  • The preliminary inquiry concluded that no rules had been broken in posting the edited video. Moreover, the DVIDS video and the full written transcript was always publicly available.
  • At the request of Secretary Kerry, the Department subsequently conducted “a broader review of the matter.”

According to OLA’s report, the Department interviewed 34 individuals and conducted email searches in this “broader review” as follows:

  • Nine of these individuals were senior officials in relevant positions from the relevant time period, including the then Department Spokesperson and Deputy Spokesperson, and numerous others within the Public Affairs bureau (no names are included in the report)
  • Fifteen of the interviewees were in positions in which they might have known who requested an edit or might have been in a position to relay a request for an edit from someone with the perceived authority  (names are not included in the report)
  • The final 10 individuals (including the technician who recalled making the edit) were involved in or familiar with the video production and editing processes in the Department as of December 2013, and might have been involved with the particular video in question or could explain those processes in greater detail. Individuals in this category also provided available records from programs and tools involved in the video production process. (names are not included in the report)

The report also says that the Department does not have records of phone calls made to the video technician that day. It looks like the  Department did meet with the staff from the Office of Inspector General (OIG) twice “during the course of the factfinding to brief them on process and findings.”

The report emphasized that the full record transcript and full video (via DOD’s DVIDS) were always available.  It concludes that there was evidence of purposeful editing and that there was evidence that the video was missing the footage in question soon after the briefing (we already know this from the briefings in June). So the details are as follows:

  • A PA technician recalled having received a request to edit the video over the phone
  • A female caller from elsewhere in Public Affairs “who could credibly assert that an edit should be made” made the request
  • The PA technician did not recall the identity of the caller (and the Department has been unable to ascertain it independently through interviews or document review).
  • The PA technician did not believe the call had come from the Spokesperson
  • The PA technician did not recall a reason being given for the edit request, but did believe that the requester had mentioned in the course of the call a Fox network reporter and Iran
  • The PA technician indicated that the requester may also have provided the start and end times for an edit, though the technician also recalls consulting the written transcript to locate the exchange
  • The PA technician recalled seeking approval from a supervisor, when interviewed the supervisor did not recall that exchange or anything else about the video.
  • The PA technician also recalled adding a white flash in order to make clear that footage had been removed
  • The PA technician does not usually engage in any editing, and is usually not involved in the daily press briefing video processing until several steps into the process of preparing the video for web distribution.

OLA’s report concludes that “Despite 34 interviews and follow-ups, email reviews, and cross-checks of those records still available from the editing and processing of the press briefmg video in question, the Department’s factfinding has not revealed who may have requested an edit or why the request may have been made.”

So maybe what — 45 days from that preliminary report, and we’re back to the same conclusion.

No one knows who was responsible for it. No one knows why.

The report states that “If an effort was made-however clumsy and ineffective-to scrub the public record of an already-public exchange with the press, no documentary evidence or memory of such an effort remains. If such an effort was undertaken, it was not comprehensive (in light of the unedited transcript and DVIDS video) and it was undertaken through a technician who would not normally be involved in the video editing process.”

At the same time, the report refused to let go of its alternative culprit —  “a glitch in the December 2,2013, briefing video may have resulted in the corruption of nine minutes from the YouTube and state.gov versions of the press briefing videos. The glitch was identified late in the day and the video technician was asked to address it since the normal editing team was gone for the day. Because the technician was not a normal editor, and in an effort to be transparent about the missing footage, the technician added a white flash to the video.”

In a message to colleagues, official spokesperson John Kirby — who was not working at State when this video was purposely doctored but now had to clean up the mess — writes that the report “presents the facts as we have been able to determine them, and we are committed to learn from them.”

OK. But that alternative culprit in the report is laughable, folks. A specific phone call was made, and it looks like a specific timeframe in the video was targeted for editing. The technician was not asked to “address” the glitch, she was asked to perform a snip!

This all started because Fox’s James Rosen asked then spox, Toria Nuland on Feb. 6, 2013 if the Obama administration was in direct nuclear talks with Iran.

QUESTION: One final question on this subject: There have been reports that intermittently, and outside of the formal P-5+1 mechanisms the Obama Administration, or members of it, have conducted direct, secret, bilateral talks with Iran. Is that true or false?

MS. NULAND: We have made clear, as the Vice President did at Munich, that in the context of the larger P-5+1 framework, we would be prepared to talk to Iran bilaterally. But with regard to the kind of thing that you’re talking about on a government-to-government level, no.

On December 2, 2013, Rosen asked then new official spox, Jen Psaki about that prior exchange with Toria Nuland:

QUESTION: Do you stand by the accuracy of what Ms. Nuland told me, that there had been no government-to-government contacts, no secret direct bilateral talks with Iran as of the date of that briefing, February 6th? Do you stand by the accuracy of that?

MS. PSAKI: James, I have no new information for you today on the timing of when there were any discussions with any Iranian officials.
[…]
QUESTION:
 Is it the policy of the State Department, where the preservation or the secrecy of secret negotiations is concerned, to lie in order to achieve that goal?

MS. PSAKI: James, I think there are times where diplomacy needs privacy in order to progress. This is a good example of that. Obviously, we have made clear and laid out a number of details in recent weeks about discussions and about a bilateral channel that fed into the P5+1 negotiations, and we’ve answered questions on it, we’ve confirmed details. We’re happy to continue to do that, but clearly, this was an important component leading up to the agreement that was reached a week ago.

QUESTION: Since you, standing at that podium last week, did confirm that there were such talks, at least as far back as March of this year, I don’t see what would prohibit you from addressing directly this question: Were there secret direct bilateral talks between the United States and Iranian officials in 2011?

MS. PSAKI: I don’t have anything more for you today. We’ve long had ways to speak with the Iranians through a range of channels, some of which you talked – you mentioned, but I don’t have any other specifics for you today.

In July 2012, Jake Sullivan, a close aide to Secretary Clinton, traveled to Muscat, Oman, for the first meeting with the Iranians, taking a message from the White House. […] In March 2013, a full three months before the elections that elevated Hassan Rouhani to the office of president, Sullivan and Burns finalized their proposal for an interim agreement, which became the basis for the J.C.P.O.A. (see The Aspiring Novelist Who Became Obama’s Foreign-Policy Guru, May 5, 2016).

Would a “no comment” response really be so terrible instead of Ms. Psaki’s word cloud there?

 

Related posts:

 

 

 

@StateDept Finally Solves Mystery of the Doctored Daily Press Briefing Video — Elvis Did It!

Posted: 3:19 am ET

 

After calling the editing mystery of the video tape “a bit of a dead end,” and after Secretary Kerry called the doctoring of the Daily Press Briefing tape “stupid and clumsy and inappropriate,” the State Department informed the press on June 8 that the agency’s Office of the Legal Adviser (L) is continuing to look into the matter.

Also see:

 

On August 18, the State Department’s spox updated members of the press of the internal review.  The Legal Adviser’s office apparently did talk to 30 current and former employees. The office has now come up with “a fact-finding review” that was submitted to Secretary Kerry, the Congress and the Inspector General. The review is inconclusive — spox says it was a deliberate act, they don’t know why or who was responsible for asking the “edits” but it can’t be nefarious or anything like that.

Note that HFAC Chairman Royce has previously requested an investigation by the Inspector General. If there is an OIG investigation in addition to the Legal Adviser’s review, we could be looking at dueling reports.  It looks like the Legal Adviser’s review might be released publicly at some later date but the spox did not indicate when.  Meanwhile, there is one lawsuit already.

Via the Daily Press Briefing with official spox John Kirby:

Finally, I want to update you on the issue of the portions of video missing from a press briefing here on the 2nd of December 2013. Now, as you know, this is something we’ve talked about before. I promised you that I would update you when we had completed our review. We’ve done that, so if you’ll bear with me, I’ll give you what I have.

As you know, when this matter came to light, many of us, including Secretary Kerry, had concerns and questions as to how and why this had happened. And so, at the Secretary’s request, the Office of the Legal Adviser spent the last several months looking deeper into the issue. All told, they have spoken with more than 30 current and former employees at all levels of seniority and they’ve gone through emails and other documents to see what information might be available. They have now compiled their findings and a description of their process into a fact-finding review, which has been provided to the Secretary. We’re also sharing it today with Congress and the inspector general.

Here’s the bottom line: We are confident the video of that press briefing was deliberately edited. The white flash that many of you have noticed yourselves in that portion of the video is evidence enough of human involvement. Indeed, a technician came forward, recalled making the edit and inserting that flash. What we were not able to determine was why the edit was made in the first place. There’s no evidence to suggest it was made with the intent to conceal information from the public, and while the technician recalls receiving a phone call requesting the edit, there is no evidence to indicate who might have placed that call or why.

In fact, throughout this process we learned additional information that could call into question any suggestion of nefarious activity. In addition to the fact that the full video was always available on DVIDS and that the full transcript was always on our website, the video was edited in a choppy manner, which made it obvious that footage was missing. We also found that the video likely was shortened very early in the process, only minutes after the briefing concluded and well before the technician who recalled making the edit believes the request was made to make the edit, and in any event before the technician would have been involved in the video production process. It is possible the white flash was inserted because the video had lost footage due to technical or electrical problems that were affecting our control room servers around that time.

Finally, we have confirmed that even if the video was edited with intent to conceal, there was no policy in place at the time prohibiting such an edit. So upon learning that, I think you know, I immediately put a policy in place to preclude that from ever happening. We will also be consulting now with the National Archives and Record Administration about whether any changes to our disposition schedule should be made to address the press briefing videos. Disposition schedules are rules governing the record – official record keeping. The current disposition schedule notes that the written transcript is a permanent record.

Now, I understand that these results may not be completely satisfying to everyone. I think we will all – we would all have preferred to arrive at clear and convincing answers. But that’s not where the evidence or the memories of so many employees about an event, which happened more than two and a half years ago, have taken us. We have to accept the facts as we have found them, learn from them, and move on.

The Secretary is confident that the Office of the Legal Adviser took this task seriously, that they examined it thoroughly, and that we have, indeed, learned valuable lessons as a result. For my part, I want to thank them as well for their diligence and professionalism. We are and I think we will be going forward a better public affairs organization for having worked our way through this.

With that, I’ll take questions.

Via US Embassy London/FB

You did it?

 

QUESTION: All right. Well, before we move on to Syria, let’s finish up this videotape episode, or at least dig into it a little bit more. Can you remind me just from that lengthy statement – you think it was not nefarious because it was done badly and because it was done quickly? Is that the essential argument?

MR KIRBY: I said that we weren’t – we aren’t sure whether it was done with intent to conceal or whether it was done as a result of a technical problem. The bottom line is, Brad, it was inconclusive. Some of the additional information that does lead us to think that a glitch is possible here is because of the choppy nature of the cut, which is when – look, when we do the daily briefings, we always cut the top and the bottom, right? So we have an ability to do editing on the – at the beginning and the end of a briefing. Obviously, we have to do that. And we have procedures in place to do that in a nice smooth, clear, very deliberate way, so that when we post the video of today’s briefing, it looks like a totally encompassed, very professional product. So we have the ability to do this in a very professional way.

This cut was not done that way. It was done in a choppy fashion that’s not consistent with the way we typically do that. I’m not saying that that means for sure it was the result of an electrical problem. I’m just saying that it certainly gives us pause, and we have to think about that.

The other aspect of this is the timing. So roughly 18 minutes after the briefing was concluded, the video that was uploaded was shortened – shorter than the actual briefing itself – which would convey that a cut of some kind was made very, very quickly after the briefing, sooner than when the technician remembers – much sooner, actually, than when the technician remembers getting a phone call asking for the cut to be made. So again, we may be dealing with a memory issue. Maybe that’s inconsistent. Or maybe there was – there could have been a technical problem that caused the video to automatically be shortened when it was first uploaded so quickly – 18 minutes after the briefing, which is pretty fast.

So it’s not impossible or inconceivable that there was an intent to conceal information – in other words, nefarious intent here. We’re not ruling that out. But we also cannot, based on the evidence that we have gained, rule out the possibility that there was some technical problem and then to make it known that a cut had been made, a white flash was inserted.

QUESTION: But there were no technical problems on the other videos that still exist.

MR KIRBY: Right, but they don’t —

QUESTION: If that were the case, don’t you think someone would come and admit that rather than nobody of the 30 witnesses you interview can actually remember what happened? It seems like such a ridiculous explanation it shocks me that you’re actually providing it here. But okay.

MR KIRBY: Okay, is that a question or you just want to berate me?

QUESTION: Well, no, I – John, I just think it’s – I think it’s really strange that you’re saying that. I think someone would remember if it were a technical glitch. And how could you say there was a technical glitch, there was a possibility of that, when there’s no other evidence of those glitches on the other videos that exist?

MR KIRBY: I’m saying I can’t rule it out, Justin. There’s also no evidence that anybody did this with a deliberate intent to conceal. We just don’t know. And you might —

QUESTION: (Inaudible.)

MR KIRBY: And I understand – look, as I said at the – as I said at the end of my lengthy statement, that I understand that the inconclusive nature of the findings is not going to be all that satisfying to you. It wasn’t all that satisfying to the rest of us. You don’t think that we would like to know exactly what happened? We just don’t. They interviewed more than 30 current and former employees. They looked at emails and records, and there simply wasn’t anything to make a specific conclusion here.

QUESTION: Let’s put our satisfaction aside for a second. Is this conclusion that you’ve reached, whatever it concludes or not – is that satisfying to the IG? Is the IG now done with his investigation?

MR KIRBY: Well, I’ll let the IG speak for themselves. I’m not aware that the IG has taken this up as – to investigate.

QUESTION: Well, the review, sorry, that you’ve called it.

MR KIRBY: What I can tell you is – again, I cannot speak for the IG. As you know, they’re an independent entity. What I can tell you is that the Office of the Legal Adviser kept the IG informed as they were working through the process. And it’s our understanding that they’re comfortable with the work that was done.

QUESTION: And then lastly, the technician – is there any punishment to him – or I think it’s – she’s been referred to as “her” in the past – to her as a result of cutting the tape, not remembering who told her, not remembering any of the details regarding this?

MR KIRBY: No. There’s nothing to punish anyone for.

QUESTION: Okay.

MR KIRBY: As I said at the outset, there was no policy prohibiting this kind of an edit. There is now, but there wasn’t at the time. So there’s no wrongdoing here that can be punished.

James.

QUESTION: Can we stipulate in advance of my questions that in pursuing them, I can be absolved of any charges of solipsism or self-centeredness?

MR KIRBY: You’ll have to define solipsism for me. (Laughter.)

QUESTION: Believing that one’s self is the center of the universe. I just happen to be —

MR KIRBY: I would never think that of you.

QUESTION: Thank you. (Laughter.) I’m glad to have that on the record. First of all, so that we are clear, what you are telling us is that some unknown person called this technician to request that an edit that had in fact already been made by some unknown force be made again?

MR KIRBY: What I’m saying is, James, we do not know. We have the technician who has recalled getting a phone call to make an edit to the video. And the technician stands by the recollections of that day.

QUESTION: But the edit had already been made.

MR KIRBY: But it’s unclear – well, it’s unclear. Again, 18 minutes after the briefing, we know that the video uploaded – the version that was uploaded to be used on YouTube and our website was shortened by the same amount of the cut. Now, it’s unclear how it got shortened. It’s unclear whether that was the result of an electrical malfunction or it was the result of a deliberate, physical, intentional edit.

QUESTION: But it is the edit we’ve all seen?

MR KIRBY: It is.

QUESTION: Okay. And so –

MR KIRBY: And what was inserted – that the technician did remember getting a phone call, did remember inserting a white flash to indicate that video footage had been missing. So we know – and the white flash is very clear evidence, as I said, of human involvement in the process. But we’re dealing with recollections and memories that are two and a half years ago. And I don’t know about you, but I can’t remember what I had for breakfast yesterday. So I mean, there is – you have to allow for some of that here, and that’s why it’s inconclusive. I’m not at all standing up here telling you that I’m confident that the – to phrase it your way, that there was a – that a call was made to make an edit that had already been done. I just don’t know that that’s what happened.

QUESTION: What is the time gap between the uploading in the video and the time when this technician recalls that call having come in?

MR KIRBY: Let me see if I can find that for you.

QUESTION: And does the video automatically upload to the website?

MR KIRBY: No, it doesn’t.

QUESTION: So it’s possible that someone could have done the edit before it was uploaded.

MR KIRBY: Hang on a second, Ros. I’m trying to answer one question at a time here.

Look, I – James, I just don’t have that level of detail. I think we had —

QUESTION: But you said it’s quite some time – weeks, months, a year. What do we think it was?

MR KIRBY: No, it’s usually – it can take up to a day to get the press briefings uploaded online. It just depends. And so I just don’t have that level of detail here.

QUESTION: In arriving at the conclusion that you’re unable to make a conclusion as to whether a nefarious intent was involved here, it seems that nobody has taken into that assessment the actual content of the briefing that was actually erased or wound up missing. And so I want to ask you point blank: Doesn’t the content of the missing eight minutes tell us something about the intent? It just happens to be, in fact, the one time in the history of this Administration where a spokesperson stood at that podium and made statements that many, many people across the ideological spectrum have interpreted as a concession that the State Department will from time to time lie to preserve the secrecy of secret negotiations. That coincidence doesn’t strike you as reflective of some intent here?

MR KIRBY: Again, James, two points. First of all, the results of the work that we did are inconclusive as to why there was an edit to that day’s press briefing. I wish I could tell you exactly why and what happened.

QUESTION: Did the content factor in?

MR KIRBY: But – hang on, please. But I don’t know. Certainly, there was, as we work through this – I mean, everybody’s mindful of the content of the Q&A that was missing from the video. I think we’re all cognizant of that Q&A. I can go back, certainly, and look, but it’s my understanding that the content, the issue about the content, had been discussed in previous briefings. It wasn’t the first time that that particular content had been discussed.

Number two, as I said, it was always available in its entirety on DVIDS and it was always available in the transcript, so if – again, if somebody was deliberately trying to excise out the Q&A regarding that content, it would have – it would be a pretty ham-fisted and sloppy approach to do it, because the transcript was never not complete and the DVIDS video was always complete, and there were – hang on a second – and there was media coverage that day regarding that exchange, right? And so —

QUESTION: I remember it well.

MR KIRBY: I’m sure you do. So it wasn’t as if the content inside that eight minutes or so was not available to the public immediately that afternoon.

QUESTION: Two final areas here, and I will yield. I appreciate your patience. Nothing in what you’ve said so far today suggests that the contents of this investigation or its conclusions would be classified. And so when you tell us that the report done by the Office of the Legal Adviser is going to be shared not only with the Secretary but with members of Congress, what is it that prevents you from sharing that full report with the public?

MR KIRBY: Nothing. And we have – we intend to make sure that you get access to it. We’re still working through logistics with that, but nothing precludes that.

QUESTION: We look forward to a timetable when you can make it public.

Lastly, did the Office of the Legal Adviser arrive in the course of this review at any conclusion as to whether this video itself constitutes a federal record?

MR KIRBY: Well, again, as I said at my opening statement, we’re working now with the National Archives and Records Administration to take a look at what I’ve called disposition schedules, the rules governing what is and what is not considered a public record. But at the time and as of today, the transcript is considered a permanent record, official record, of these daily briefings.

QUESTION: So the answer to my question is the Office of the Legal Adviser did not make any determination as to whether this video constitutes a federal record, yes or no?

MR KIRBY: No, and that wasn’t their —

QUESTION: Okay.

MR KIRBY: First of all, James, that wasn’t their task. Their task was to try to find out what happened. And (b) it’s not up to the Office of the Legal Adviser to determine what is or what isn’t a permanent, official record. That’s determined by NARA, and that’s why we’re consulting with them right now.

QUESTION: The videotape in question was shot with a State Department camera, correct?

MR KIRBY: Yes.

QUESTION: It was uploaded to the State Department website by a State Department technician, correct?

MR KIRBY: Yes.

QUESTION: The State Department website is maintained by State Department employees, correct?

MR KIRBY: Yes.

QUESTION: This video on the State Department website is in a separate place on the website from the transcript, correct?

MR KIRBY: Yes.

QUESTION: One has to push a different button to access the video from the button that one pushes to access the transcript, correct?

MR KIRBY: That’s my understanding.

QUESTION: I have no further questions.

QUESTION: Okay, I have one question just to make sure.

QUESTION: It’s like a court of law. (Laughter.)

QUESTION: It sounds like a federal record to me, John. It would be very counter-intuitive – it would be very counter-intuitive to —

MR KIRBY: Let James – let James talk.

QUESTION: It seems very counter-intuitive to imagine that a videotape of a State Department briefing that is shot, uploaded, maintained by federal employees would not itself be a federal record —

MR KIRBY: Yeah.

QUESTION: — considered distinct and separate from the federal record that is the transcript, which is typed by separate employees and maintained on a separate place on the website.

MR KIRBY: So look, let me address that because it’s a fair point. A couple of things. There’s no requirement for us, no requirement, even today, to upload videos of this daily press briefing on my website, our website, or on YouTube, on our YouTube channel. We do that as a courtesy, but there’s no requirement to do that. And that’s one.

Number two, the entire video was also streamed into the DVIDS program, which is a different channel. I’m not a technician, but it’s different, a completely different channel, which is why DVIDS had it complete without any problems. And of course, the transcript is and we have considered the transcript as the official record of these daily briefings. And we consulted NARA at the outset of this process, and they concurred that in their view the transcript is an official record of these daily briefings. But they’re also willing to talk with us about going forward whether or not we need to take a look at those disposition schedules to see if that definition needs to be expanded to include video.

So, James, we actually asked ourselves the very same questions you’ve just interrogated me on, and we’re working – and I mean that in a —

QUESTION: But not with the same panache. (Laughter.)

MR KIRBY: No, not with the same self-centeredness. (Laughter.) But honestly, we asked ourselves the same questions. In fact, we still are, James. And so we’re working with the National Archives on this and we’ll see where that goes.

QUESTION: So let me get this straight. If the DVIDS video was the same – shot by the same camera, it’s the same thing, and it had no problems, I’m having trouble understanding why you would assume and conclude that it’s so possible that your version would have some technical glitch that needed to be edited. I thought we got past the “it was a technical glitch” line. I’m really surprised to see that back in the narrative, because if their version is clean, why —

MR KIRBY: It’s a different – first of all, it’s a different system.

QUESTION: It would be highly unlikely, John, that there would just be some minor problem on your end. It seems implausible and not worth mentioning as a defense.

MR KIRBY: Justin, look, I’m not going to dispute the confusion that you’re having over this. I can tell you, as I said, we would have all preferred that there was some clear, convincing evidence of exactly what happened. But there isn’t. I can’t make it up. I can’t – I can’t just pull out of thin air an exact reason for what happened.

QUESTION: Well —

MR KIRBY: So because I can’t – but because I can’t and because the Office of the Legal Adviser couldn’t, based on interviews, based on looking at documentary evidence, we can’t rule out the fact that there were – and there were some server problems that we were having around that time. I can’t tell you with specificity that it was on that day and at that hour, but we were having some problems. And it’s not out of the realm of the possible that the white flash was inserted rather – for nefarious purposes, but more to indicate that there was some missing footage and we wanted to make that obvious.

QUESTION: All the – I mean, all the evidence – who would come to the technician 18 minutes after the briefing and say, “I noticed that there was a technical” – telling the technician there was a technical problem. It just doesn’t seem —

MR KIRBY: This technician is not – this technician does not work in the office that typically edits the daily briefings.

QUESTION: (Off-mike.)

MR KIRBY: Look, Justin, I can’t possibly —

QUESTION: But it was someone within Public Affairs, not in the technician’s office, who instructed —

MR KIRBY: Yeah.

QUESTION: — the change be made. That’s what you guys have said. And the idea that that person would have noticed some —

MR KIRBY: We’ve said that that is what this individual recalled.

QUESTION: — would have some knowledge of a technical glitch that the technician needed to be instructed on, all of it seems totally implausible. That’s not a question.

MR KIRBY: Okay.

QUESTION: I have —

MR KIRBY: But all I can say to you is I can’t answer the question you’re asking. We have tried to answer the question you’re asking, and we have spent many months now working on it. And it’s – the results are inconclusive in that regard. I can’t change that fact, and that is a fact.

QUESTION: I just have a clarification point, just real quick, real quick.

QUESTION: (Inaudible.)

MR KIRBY: Hang on just a second. Hang on, just —

QUESTION: Very small one.

QUESTION: One quick – yeah, mine’s a minor point too.

QUESTION: Just one – one thing just from another person other than the immediate group there. We’ve jumped around this issue and around it —

MR KIRBY: Are you separate from the media group here?

QUESTION: I’m different from the immediate group up there.

QUESTION: He said “immediate.”

MR KIRBY: Oh, the immediate group.

QUESTION: So this sounds like a very thorough internal probe, more than two dozen people interviewed. Did the probe identify who from Public Affairs made the call requesting the change? Yes or no.

MR KIRBY: No.

QUESTION: Unable to do it?

MR KIRBY: Unable to do that.

QUESTION: Sorry, can you just remind me? I just need to clarify these things. The request to the technician was to do what? I recalled it was to cut the tape.

MR KIRBY: The technician recalls getting a phone call —

QUESTION: Yes.

MR KIRBY: — from somebody in Public Affairs to edit the video. That is still the memory of the technician and that’s reflected in the review.

QUESTION: So why did the – so what did they edit if it was already – if this section of the tape was already missing, what did that technician actually do?

MR KIRBY: The technician remembers getting the phone call and inserting a white flash to mark the fact that the video had been shortened.

QUESTION: So it’s – so the request was to edit the video, and then the technician decided upon herself to insert a white flash as a transparency flasher or something?

MR KIRBY: The technician recalled inserting the white flash so that it was obvious that a cut had been made.

QUESTION: But the request wasn’t to insert a white flash. The request was to cut the video, wasn’t it?

MR KIRBY: Again – again – I’m not disputing that. That is what – that is what the technician remembers – getting a call —

QUESTION: So why did this very obedient and forgetful technician —

MR KIRBY: Hang on, hang on, hang on.

QUESTION: — suddenly decide they were going to insert white flashes?

MR KIRBY: The technician remembers getting a call to edit the video, has recalled and come forward and said that that edit was made and that a white flash was inserted. I can’t – I’m not – I’m not at all, and we’re not disputing, the recollections. As I said at the outset, in working through this, additional information came to light which also forces us to consider the possibility that there might have been a technical problem here that truncated, shortened some of that video since so shortly after the briefing – 18 minutes, which is much faster than we typically get to compiling this and posting it in an – on a normal day – happened. So nobody’s challenging the account —

QUESTION: Yeah.

MR KIRBY: — but it’s because we have additional information that we’ve now uncovered that makes it inconclusive on our part.

QUESTION: I just have two more questions. One, did the technician indicate where she came up with the white flash idea? Was that just being really enterprising?

MR KIRBY: I don’t know. I’m not an expert on this. As I understand it —

QUESTION: Or was that the —

MR KIRBY: — or I’ve been told that that is not an unusual —

QUESTION: Okay.

MR KIRBY: — procedure for making a deliberate cut and to make it obvious.

QUESTION: Okay.

MR KIRBY: But I don’t – I’m not an expert.

QUESTION: Why didn’t – why did nobody in your entire apparatus think of using the good tape that was sent to the DVIDS and just using that?

MR KIRBY: I don’t have an answer for you on that. Again, it was always available on DVIDS. And I’m not – I wasn’t here at the time, so I don’t know how much visibility there was above the technician level on this and that technician’s supervisor. I just don’t know.

QUESTION: But if the white light was meant as some sort of effort at transparency, one, you would have said something, probably indicated somewhere when you posted it, “missing tape,” no? Not let people hopefully see a white light and divine what that means.

MR KIRBY: I can’t go back —

QUESTION: Secondly, wouldn’t you just use the good tape and just put it in?

MR KIRBY: Brad, I can’t go back two and a half years here and —

QUESTION: Well —

MR KIRBY: — and try to get in the heads of people that —

QUESTION: — you’ve raised this like spectral theory that maybe everybody did everything perfectly and we just misinterpreted it.

MR KIRBY: No I did not. And I never called it a spectral theory, okay?

QUESTION: I did.

MR KIRBY: What I’m saying is I can’t go back two and a half years and try to re-litigate the decision making. The technician remembers getting a call, making a cut, inserting a white flash, talking to the supervisor about it. Conversations that happened above that level I simply can’t speak to because I don’t know. And it would be great if we could go back and rewrite the whole history on this, but we can’t do that. All I can do is learn from this and move on. And now we have a policy in place that no such edits can happen without my express permission and approval before it happens. And as I said, there was no policy at the time against this kind of thing, so there’s no wrongdoing.

QUESTION: John —

QUESTION: Can we go to Syria?

QUESTION: No, I just have —

QUESTION: No.

QUESTION: Can we move to Syria?

QUESTION: I have one more. I have one more.

MR KIRBY: Are we all – are we done on the video?

QUESTION: No, I have one more just to wrap this up, because you just said that edits cannot be made without your express knowledge and consent. What is the workflow now for recording these videos of these briefings and other events, and uploading them to the website? What is the basic workflow?

MR KIRBY: The workflow hasn’t changed. The workflow – it’s the same procedure that’s been used in the past. And again, I’m not an expert on the way our technicians – who are very professional, very competent – do their jobs. I didn’t change anything about that process except to insert a rule that there will be no editing of briefing, press briefing videos, without my express consent and approval beforehand. But I did not change the process.

QUESTION: That’s understood. But I will say as someone with 24 years in news, television news, there’s always another pair of eyes looking at what someone does in terms of work. And so I’m asking, one, once you record a video, now that everything is digital, it’s pretty easy to upload things pretty quickly. You don’t need 24 hours. Number two, if you are uploading something, there’s going to be someone in the process – a media manager, a producer, an editor – who’s going to verify that the work was done and that the work didn’t have any technical glitches. Who is checking up on the work of the technician, or is the technician simply working and ticks off a box, I’ve done this task, and moves on?

MR KIRBY: There is a process that supervisory personnel are involved in. I don’t have the exact flowchart for you here today. But I’m comfortable that the process works, and it works every day. It’s going to work today. It worked yesterday, and it worked the days before that. I’m not worried about that. I think everybody understands our obligations and our responsibilities.

I can’t speak for the specifics in this digital environment. Again, I’m not a technician; I’m not an expert at this. But I’m comfortable that our staff is competent and trained, have the resources available to do this in a professional way, and that they’ll continue to do that.

QUESTION: Just a few last ones. Thank you very much, John. Do you stand by the statements you made when you first started briefing on this particular subject that this entire episode reflects a failing to meet your usual standards for transparency?

MR KIRBY: Yeah, I do. I mean, again, we don’t know exactly what happened here, but obviously, we would never condone an intent to conceal, if that’s, in fact, what happened. Now again, I can’t say that that happened. But if it did, then yes, obviously, that would not meet our standards. And frankly, and if I might add, it didn’t meet the standards of my predecessors either. Jen Psaki, Marie Harf, Victoria Nuland – none of them would ever abide by any kind of intent to conceal information from a daily briefing.

QUESTION: The reason I ask is because when you started briefing on this subject in May, you told us that this wasn’t a glitch, that it was an intentional and deliberate erasure. Now, following the investigation by the Office of Legal Adviser, you seem to be retracting that and saying we honestly can’t say one way or the other. And so if your previous comments were to the effect that this represented a failing of transparency, I wonder if you would like an opportunity to retract those as well.

MR KIRBY: I said at the time that it was a deliberate intent to edit and I said it again today. I mean, obviously there’s human involvement here.

QUESTION: Okay.

MR KIRBY: So we know that there was a deliberate edit to the video. What I can’t say, based on the work now that they’ve done, is why that occurred.

QUESTION: Well —

MR KIRBY: But James, if it was – and we may never know, right? – but if it was an intent to conceal information from the public, that’s clearly inappropriate.

QUESTION: You mentioned that more than 30 employees were interviewed as part of this process. Were those interviews recorded or transcribed?

MR KIRBY: I don’t know.

QUESTION: You stated that those 30 employees ranged the gamut of seniority. Does that – are we to interpret that remark as an indication that the Secretary himself was interviewed?

MR KIRBY: The Secretary was not interviewed for this.

QUESTION: To your knowledge, did any of the people who were interviewed have counsel with them while they were interviewed?

MR KIRBY: I don’t know. I’d have to consult the Office of Legal Adviser for that. I don’t know.

QUESTION: To your knowledge, did anyone refuse to take part in the investigation or be —

MR KIRBY: I know of no refusals.

QUESTION: Thank you.

MR KIRBY: In fact, the Office of the Legal Adviser made very clear that they were very grateful and appreciative of the support that they got from people that work in Public Affairs today and people that have worked in Public Affairs in the past.

QUESTION: Thank you.

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A Joke That Wasn’t, and a State Department Dialogue That Is Long Overdue

Posted: 2:41 am ET

Apparently, there was a recent Sounding Board (SB) post about how “a DS agent made a rape joke in front of a whole class (60+) without thinking anything of the joke.”

It took us a while but we finally got the SB post dug up what was said during the Security Overseas Seminar (SOS), which is designed to meet the security awareness needs of U.S. Government personnel and their families going overseas.

An employee posted on the Secretary’s Sounding Board that she first attended the SOS seminar five years ago and felt that the “Sexual Assault  & Rape” session was “both incomplete and demeaning to sexual assault victims (who the instructor largely assumed were always female).” During her most recent attendance, she writes that she was “disappointed by the same message: there are ways to prevent sexual assault/rape, no mention of what the Regional Security Officer can/will do,” and “no mention of the Health Unit’s, etc. involvement.”

The majority of the course is said to be focused on what employees and family members can do to prevent sexual assault: institute the “buddy system,” avoid isolated areas, dress like a local, etc.  The employee asks what about the 84% of all reported sexual assault/rapes being committed by someone that the victim trusted, or women who were raped in an open and crowded area in Germany or “are we saying that women from cultures where they are required to cover from head to toe never get raped because they are entirely hidden?” The SB post says that the employee asked the instructor “why were we not discussing the main cause of sexual assault/rape: gender socialization, particularly focusing on male privilege and entitlement to women’s bodies?”   The instructor reportedly responded that “we cannot change an entire culture in an hour” to which the employee agreed but urge that “we nevertheless begin a dialogue on this topic.”

That’s not, of course, the end of this story.  The following is from the same SB writer sent to us by a Foggy Bottom nightingale:

“The next day, I overheard four people (3 men and 1 woman) exchanging pejorative comments about what I had said. One of the men (a DS [Diplomatic Security] agent who as RSO [regional security officer] will be a victim’s first recourse in the event of a crisis) exclaimed that he would like to “see how I do in Port Moresby.” Allow me to break down this hurtful comment: he wants to see how I do in a country where women can still be tortured to death on charges of witchcraft when a natural death occurs in the family; a country where the Australian health attach showed up at a diplomatic reception after abandoning her car when she was randomly targeted in a mob rush while driving. Because I wanted to begin a dialogue on male privilege, its effects on rape culture, and how I found “tips” on “sexual assault/rape prevention” to be a covert form of victim-shaming, this man, this Diplomatic Security agent, commented on how he wanted to see me, a woman, fare in a country that is known for its hight incidents of rape against ex-pat women. And this gentleman is my colleague, not an obnoxious drunk man at a local dive bar. When I turned around and asked if they wanted to discuss what I had said, one said he didn’t see the point, the other told me how my comment was inappropriate in an one-hour session. No further comments made. How is this dialogue not overdue? (Note: I am not seeking to shame or put-down my colleagues for saying what they assumed was far and away from my hearing range. This is more to highlight the amount of tension surrounding this topic.”

Hey — if one cannot talk about this topic in an SOS session, where are you supposed to discuss this?

We wrote to the Office of Civil Rights under Secretary Kerry’s office (S/OCR) asking what response it made (if any) to the Sounding Board post. That was, oh, weeks ago so we figure we’re not going to hear from S/OCR.

The nightingale also said that “any time a female coworker brings up EEO, rape culture, or feminism in general,” DS agents the employee worked with allegedly make comments like “Ugh, don’t work with her, she’ll EEO you.” or “She probably has a ton of files on men”.   Our correspondent told us that she could think of a number of situations “with bullying, harrasment, and such” that were all documented by supervisors but nothing was done about them.  Our writer also alleged that “a good portion joke about rape or sexual assault on a daily basis.”

Which is why we wanted to hear from the State Department office tasked as the main contact point for questions or concerns about sexual harassment and EEO matters.

But hey, nada. Yok.

What’s even more troubling is when we see these reviews for the State Department over at InHerSight.com:

“I, and a lot of other females, are considering leaving, or have left, because of the misogyny. Diplomatic Security is the absolute worst.” – See more at: https://www.inhersight.com/company/us-department-of-state#sthash.5rVrFJHX.dpuf

“Working in a predominately male field means tacky and disrespectful jokes regardless if the two females (who are of equal or higher grade) are in earshot or not. 50% of the men who work in this office are prior military folks who have a disrespectful attitude towards females and men without military experience. Despite being the “State Department” which is usually more liberal and tolerant, the Bureau that I work in is the exact opposite. It shows through upper management all the way down to the bullpen workers.” – See more at: https://www.inhersight.com/company/us-department-of-state#sthash.5rVrFJHX.dpuf

We asked the State Department about the gender composition of DSS agents in Diplomatic Security: 90.18% male and 9.82% female.  We also asked about the attrition rate by gender at the bureau. Below is what we’re officially told:

DS reports that they do not have information related to special agent attrition rate by gender. They do not keep those statistics, but note that the overall Special Agent attrition rate for 2015 was 3.66%.

The State Department’s DGHR should be able to run these numbers. That’s a very low attrition rate but — don’t you want to know who and why these employees are leaving?  If a bureau is overwhelmingly male, and if the entire attrition rate is, for instance, composed of all female employees, aren’t you going to wonder why?

But how would you know if you’re not even looking?

The InHerSight reviews are pretty broad but are troubling nonetheless. The first step in fixing a problem is recognizing that there is a problem.  Is there?

Who’s going to volunteer to look into this if we can’t even get S/OCR to respond to a public inquiry?

 

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Former US Ambassador to China’s MD House, a Chinese Tycoon and Other Oy! News!

Posted: 2:14 am ET

Gary Locke  was the United States ambassador to China from August 2011 until March 2014. He was the 21st Governor of Washington from 1997 to 2005 and served in the Obama administration as United States Secretary of Commerce from 2009 to 2011.

The Office of the Assistant Legal Adviser for Ethics and Financial Disclosure (L/EFD) “advises the Department and its employees on ethics laws and regulations applicable to Executive branch employees. These rules govern, inter alia, employee acceptance of gifts, participation in outside activities, avoidance of conflicts of interest, avoidance of appearance of partiality, and seeking and post-government employment.” L/EFD also manage the Department’s financial disclosure reporting program, including review and certification of the reports for Presidential Appointees and other OGE-278 and OGE-450 filers.

Via The Intercept:

Locke purchased the home, which has six bedrooms and five bathrooms, for $1,525,000 in 2009. The house went on the market June 20, 2013, and was initially listed for $1.75 million. By August, the house was marked down to $1.68 million, the price the Chen family paid in September. Zillow now estimates the home value at about $1.8 million.

Locke’s ethics statement for that year discloses that he sold his home in Bethesda but lists the transaction under “rents and royalties” rather than capital gains. He disclosed earning between $50,000 to $100,000 from the sale, though the Chen family paid $150,000 more than the price Locke paid in 2009.

Asked if the State Department reviewed the transaction, a spokesperson for the agency told us that “there is no requirement for any State Department official to clear the sale of his or her personal residence with ethics officials at the department, regardless of the value of the property. The department does not review or approve the terms of sale for an employee’s private residence.”

The sale nonetheless raised concerns among ethics experts.

“This is not appropriate,” said Richard Painter, a former White House chief ethics counsel from 2005 to 2007. “If I were the State Department’s legal adviser, I would be very unhappy with ambassadors selling their houses to foreign nationals of the country where they’re working without an independent appraisal to prove actual value.”

Craig Holman, the government ethics watchdog with Public Citizen, said the sale raised a number of flags. Locke, Holman said, was in a position to influence American policy decisions and needed to “steer clear of placing himself in a conflict of interest situation in which financial opportunities could be perceived as influencing his judgment.”

Locke’s financial disclosure statement, filed in 2009 for his Senate confirmation hearing to become secretary of commerce, reveals that he provided legal assistance to APIC prior to being nominated. In 2008, he provided legal consulting services to APIC and appeared at a ribbon-cutting ceremony for an APIC-owned biofuels refinery in Shantou, a city in southern China. The facility imports soybeans from the U.S. and Latin America.

Since retiring from public office in 2014, Locke is again serving as an adviser to the firm.

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EEOC Case: FS Candidate Wins Disability Discrimination Case, Sinks For Selective Service Registration Fail

Posted: 4:32 am ET

Via eeoc.gov:

On March 9, 2004, Complainant filed a formal complaint alleging that he was subjected to disability discrimination when he was denied an appointment to a Junior Officer position with the Foreign Service.  After an investigation, the Agency issued a final decision finding no discrimination, and Complainant appealed.  In our prior decision, we found the Agency discriminated against him when it failed to grant him a medical clearance based on its “worldwide availability” requirement.  Bitsas v. U.S. Department of State, EEOC Appeal No. 0120051657 (Sept. 30, 2009).  As relief, we ordered the Agency to retroactively offer Complainant a Junior Officer position, and to tender back pay and promotions from the date Complainant would have encumbered his position, absent discrimination, until the date he either enters on duty or is denied a medical or security clearance.  We further ordered the Agency to undertake a supplemental investigation into complainant’s entitlement to compensatory damages, provide training, consider taking disciplinary action, and post a notice of the finding of discrimination.  Id.

Pursuant to our order, on November 10, 2009, the Agency sent Complainant a Conditional Offer of Appointment to a Junior Officer position, contingent on the satisfactory completion of the security, medical, and suitability clearance processes.  On January 1, 2010, Complainant received a Class 1 Medical Clearance.  However, on July 16, 2010, the Agency’s Final Review Panel (FRP) terminated Complainant’s candidacy based on suitability grounds.

The FRP concluded that, pursuant to 5 U.S.C. § 3328, Complainant was ineligible for federal Executive branch employment because he failed to register with the Selective Service System (SSS).  The Panel also concluded that there were several instances of misconduct in Complainant’s prior employment which rendered him ineligible for employment with the Foreign Service.  Complainant appealed this decision, but on December 8, 2010, the Office of Personnel Management (OPM) determined that Complainant’s failure to register with the SSS was knowing and/or willful; thus, he was ineligible for appointment to an Executive Agency.  Complainant sought a request for reconsideration with the OPM, which was denied.

In the meantime, Complainant sent the Agency information regarding his entitlement to compensatory damages.  On April 11, 2012, the Agency issued a final decision denying compensatory damages, reasoning that the FRP’s suitability finding would have resulted in the withdrawal of his conditional offer of employment, even if he had been granted a medical clearance for worldwide availability.  Accordingly, the Agency determined complainant was not entitled to any compensatory damages.
[…]

The Agency is ordered to take the following remedial action:

1. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than one hundred and twenty (120) calendar days after the date this decision becomes final.  The back pay period shall be from September 23, 2003 until the date the Agency discovered Complainant had not registered with the SSS, approximately July 16, 2010.  The Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency.  If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due.  The Complainant may petition for enforcement or clarification of the amount in dispute.  The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.”

2. Within one hundred and twenty (120) calendar days, the Agency shall undertake a supplemental investigation to determine Complainant’s entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency’s notice.  No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages.  The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.

3. The Agency shall pay Complainant’s reasonable attorney fees in accordance with the paragraph below.

4. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.”  The report shall include supporting documentation of the Agency’s calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.

See why. Read Harvey D. v. Department of State, EEOC Appeal No.0120122385 (Oct. 22, 2015) http://www.eeoc.gov/decisions/0120122385.txt

Under current law, all male U.S. citizens between 18–25 years are required to register with Selective Service within 30 days of their 18th birthday. Non-U.S.-citizen males between the ages of 18 and 25 (inclusive) living in the United States must also register. See the Who Must Register chart here.

 

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Trump’s Wild Talk About America’s NATO Treaty Obligations — Not/Not a Misquote

Posted: 12:19 pm ET

 

SANGER: But I guess the question is, If we can’t, do you think that your presidency, let’s assume for a moment that they contribute what they are contributing today, or what they have contributed historically, your presidency would be one of pulling back and saying, “You know, we’re not going to invest in these alliances with NATO, we are not going to invest as much as we have in Asia since the end of the Korean War because we can’t afford it and it’s really not in our interest to do so.”

TRUMP: If we cannot be properly reimbursed for the tremendous cost of our military protecting other countries, and in many cases the countries I’m talking about are extremely rich. Then if we cannot make a deal, which I believe we will be able to, and which I would prefer being able to, but if we cannot make a deal, I would like you to say, I would prefer being able to, some people, the one thing they took out of your last story, you know, some people, the fools and the haters, they said, “Oh, Trump doesn’t want to protect you.” I would prefer that we be able to continue, but if we are not going to be reasonably reimbursed for the tremendous cost of protecting these massive nations with tremendous wealth — you have the tape going on?

SANGER: We do.

HABERMAN: We both do.

TRUMP: With massive wealth. Massive wealth. We’re talking about countries that are doing very well. Then yes, I would be absolutely prepared to tell those countries, “Congratulations, you will be defending yourself.”

[…]

SANGER: I was just in the Baltic States. They are very concerned obviously about this new Russian activism, they are seeing submarines off their coasts, they are seeing airplanes they haven’t seen since the Cold War coming, bombers doing test runs. If Russia came over the border into Estonia or Latvia, Lithuania, places that Americans don’t think about all that often, would you come to their immediate military aid?

TRUMP: I don’t want to tell you what I’d do because I don’t want Putin to know what I’d do. I have a serious chance of becoming president and I’m not like Obama, that every time they send some troops into Iraq or anyplace else, he has a news conference to announce it.

SANGER: They are NATO members, and we are treaty-obligated ——

TRUMP: We have many NATO members that aren’t paying their bills.

[…]

TRUMP: I’m a fan of the Kurds, you understand.

SANGER: But Erdogan is not. Tell us how you would deal with that?

TRUMP: Well, it would be ideal if we could get them all together. And that would be a possibility. But I’m a big fan of the Kurdish forces. At the same time, I think we have a potentially — we could have a potentially very successful relationship with Turkey. And it would be really wonderful if we could put them somehow both together.

SANGER: And what’s your diplomatic plan for doing that?

TRUMP: Meetings. If I ever have the opportunity to do it, meaning if I win, we will have meetings, we will have meetings very early on.

There’s mooooore, oh, dear.

Meanwhile — in Russia, Trump is apparently “inspiring a new generation of optimism.”

Here’s the NATO reaction:

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UK Appoints “Sly Fox” #BoJo as New Foreign Secretary, Reactions From @Number10Cat and Others

Posted: 3:34 am ET

Here’s the man of the hour:

#BoJo has a long history of saying, well, undiplomatic things. He called George W. Bush “a cross-eyed Texan warmonger, unelected, inarticulate, who epitomizes the arrogance of American foreign policy.” Da Donald? “The only reason I wouldn’t visit some parts of New York is the real risk of meeting Donald Trump.” Read on.

Then there’s this one about his visit to Iraq in January 2015.

Perhaps it’s time for the FCO to join Foreign Service Problems (@FS_Problems), Canadian Foreign Service Problems (@cdnfsproblems) and Gifplomacy (though no longer updated by the French dips)?

Whitehall’s Chief Mouser, Palmerton (@DiploMog) did exercise appropriate restraint at the announcement, but Number 10’s Larry the Cat was pretty harsh:

Meanwhile —

This video via the BBC profiling BoJo is quite interesting and dare we say it … entertaining. The “sly fox” masquerading as a teddy bear. Have a look.

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Tit For Tat For Tit: Russia expels two US diplomats over unprovoked attack at US Embassy Moscow

Posted: 3:12 am ET

 

On June 6, a Russian Federal Security Service (FSB)  guard reportedly attacked one of our accredited diplomats posted in Moscow. About three weeks later, somebody told the Washington Post about the attack.

This previously unreported attack occurred just steps from the entrance to the U.S. Embassy complex, which is located in the Presnensky District in Moscow’s city center. After being tackled by the FSB guard, the diplomat suffered a broken shoulder, among other injuries. He was eventually able to enter the embassy and was then flown out of Russia to receive urgent medical attention, administration officials confirmed to me. He remains outside of Russia.

RFE/RL reported the response from Russian Foreign Ministry spokeswoman Maria Zakharova on June 30  — that the guard attempted to stop the man to check his identity, but the man struck the guard in the face with his elbow before running into the embassy. “In the tussle that followed, the unknown man shoved away the guard employee and disappeared into the embassy,” she said.

Here’s TASS with a quote from the Russian deputy foreign minister about the incident:

“A video of that incident was broadcasted on July 7 by the NTV channel and speaks for itself – in the middle of the night some man wearing a hat pulled on his eyes, though it is summer, rushes from a taxi to the embassy entrance without any attempts to present a pass,” the Russian deputy foreign minister said. “Then, as the police on guard in order to prevent any threat for the diplomatic mission from the stranger, hurries to the person, the man gives him a punch by elbow into the face, thus actually committing a crime.”

Well, now, here’s the video, which was released earlier this week by Russian state-owned NTV.

Can we please file the deputy under the “Baghdad Bob” folder?

In any case, on July 7, WaPo reported that Congress is now investigating the attack on the U.S. diplomat in Moscow.

On Friday, July 8, State Department spox, John Kirby told reporters for the first time that Russian diplomats were expelled from the US on June 17 in response to the attack. “We are extremely troubled by the way our employees have been treated over the past couple years,” Kirby said.

Gotcha. One month, two days.

On July 9, Russia’s Sputnik News confirmed from the Russian Foreign Ministry that “Washington urged Russian diplomats to leave the US, while not voicing any complaints concerning their activity.”

Also on July 9, TASS reported that “two CIA officials working for U.S. Embassy were declared persona non grata.”  Apparently, Moscow has also warned Washington that “further escalation of bilateral relations will not remain unanswered.”

Here’s something to read via The American Interest:

The Obama Administration really wanted to keep this incident quiet. Whether due to wishful thinking or for reasons knowable only to those on the inside, the White House seems to think it can make progress with Russia on both the Ukraine and Syria portfolios. The harassment of State Department personnel in Moscow by security personnel was not exactly a new phenomenon, even though it had increased in intensity since Russia annexed Crimea, fought a covert war in Donbas, and had sanctions imposed on it. The White House probably saw this latest assault, egregious though it was, as fitting into a well-established pattern (one at odds with whatever hopeful signs it thought it was getting directly from the Kremlin).The Administration knew the video of the beating looked bad and could inflame U.S. domestic opinion if it leaked. But to its credit, it did not completely turn the other cheek either. Rather, it stuck to the informal, accepted procedure of quietly PNGing two Russian spies with diplomatic cover and gave zero notice to the press. Whatever the original reason for the assault, the thinking must have gone, it’s important that it not get in the way of improving relations with the Kremlin.

Read more: Kremlin Paranoia Leads to Escalation in Spy War and Why Russia Published Footage of an FSB Agent Beating an American in Moscow.

Below via the DPB with the official spox on July 8:

QUESTION: Okay. On the incident outside the Russian embassy, there’s been more comments out of Moscow or wherever. Seems like they’re bent on humiliating you over this incident. Do you have a response?

MR KIRBY: So I’ve been clear from the podium that we would prefer to deal with this matter in private government-to-government channels. However, because, as you noted, the Russian Government continues to make allegations about this incident, I am now compelled to set the record straight. On the 6th of June, an accredited U.S. diplomat, who identified himself in accordance with embassy protocols, entering the American embassy compound was attacked by a Russian policeman. The action was unprovoked and it endangered the safety of our employee. The Russian claim the policeman was protecting the embassy from an unidentified individual is simply untrue.

In addition to the attack on the 6th of June, Russian security services have intensified their harassment against U.S. personnel in an effort to disrupt our diplomatic and consular operations. We’ve privately urged the Russian Government to stop the harassment of American personnel in Russia, and as I said before, the safety and well-being of our diplomatic and consular personnel abroad and their accompanying family members are things we take very, very seriously.

QUESTION: All right. On the individual, the diplomat, there were some reports that he sustained injuries, including maybe a broken arm. Is that true, and has he since left the country, been PNGed, or anything like that?

MR KIRBY: Privacy considerations restrict me from speaking about health, and, as a standard practice, I’m not going to comment on the status of any of our employees serving overseas.

QUESTION: In Congress there’s calls for an investigation. Do you support those? Will you undertake an investigation?

MR KIRBY: I’m not aware of any investigation that we are going to undertake. If that changes or something, I’ll let you know.

QUESTION: And then what does this say about the broader U.S.-Russian relationship? Is it getting – if you can’t even operate in normal manner in the country, is it getting to a level – a worse level than it’s been in a very long time?

MR KIRBY: Well, I mean, I think it certainly speaks, as I said, of – to the kinds of harassment over the last couple of years – I mean, this is a very graphic example and a very violent one. But it comes on the heels of two years of increasing diplomatic harassment by Russian authorities that is also unprovoked and unnecessary. And as I said I think a week or so ago, Russian claims that they’re getting harassed here are simply without foundation. So you want to have a conversation about in-kind treatment, it’s time for Russia to treat our diplomats with – in the same manner in which they’re treated here when they come to the United States.

And as for the broader relationship, the – our relationship with Russia is complicated, and we certainly don’t see eye to eye on everything. There are areas where we have in the past and I think we’ll continue to seek cooperation with them, such as on Syria and the political process there. There are obviously still areas where there’s tension; Ukraine and Minsk implementation is one of them, and certainly this. There’s no need for this when there’s so many more important things for us to be working on with Russia and so much real, meaningful geopolitical progress that could be had. There’s no place for this kind of treatment and there’s no reason for it.

QUESTION: Are you prepared to make an official complaint about a Vienna Convention violation?

MR KIRBY: I don’t have anything on that to say today.

QUESTION: And then lastly, are – do you have – are you considering any countermeasures against Russia in terms of diplomatic presence in the United States, whether it’s expelling embassies, limiting movement, or otherwise responding to this incident?

MR KIRBY: So a couple of things on there. I’d say in – certainly in a sign of how seriously we take it, as I said earlier, the Secretary raised it directly with Foreign Minister Lavrov on the very day that it occurred.

(Ringtone plays.)

QUESTION: Sorry.

MR KIRBY: That’s okay.

We’re well aware that such efforts against U.S. personnel are not always sanctioned by all elements of the Russian Government. So we’re going to look to senior Russian officials with whom we engage to reign in those elements seeking to impede our diplomatic and consular activities in – I’m sorry – in Russia and our bilateral relationship. And again, this has been raised at the very highest levels – this particular incident – and I think you’ll continue to see us do that.

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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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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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