FOIA Case: Who are you calling a low-ranking government official?

Via WaPo v. SIGAR (Civil Action No. 18-2622 (ABJ)
On March 23, 2017, Craig Whitlock, a reporter from plaintiff Washington Post Company (the “Post”), submitted a Freedom of Information Act (“FOIA”) request to the Special Inspector General for Afghanistan Reconstruction (“SIGAR”), the federal agency charged with auditing and supervising the U.S. reconstruction efforts in Afghanistan. Plaintiff sought records relating to SIGAR’s Lessons Learned Program (“LLP”), specifically the “full, unedited transcripts and complete audio recordings of all interviews conducted for the Lessons Learned program, regardless of whether they were labeled as ‘on the record,’ or if the interviewee was granted anonymity, or if they were cited in a particular report or not.”
Plaintiff filed the instant lawsuit on November 14, 2018, and by June of 2019, SIGAR had processed the FOIA request and produced hundreds of responsive records. But it redacted some material and declined to produce other documents in full under various FOIA exemptions, and the parties filed cross motions for summary judgment. The Court granted both motions in part and denied both in part, and it directed the defendant to provide additional information to justify withholdings that remained in dispute.
The September 30, 2021 order by District Court Judge Amy Berman Jackson is available to read here:
Below is an excerpt on high ranking and low ranking government officials:
Defendant maintains that it properly withheld information from informants interviewed by SIGAR, see Def.’s Mem. at 15–18, including high and low-ranking government officials who could be classified as “public” officials. Id. at 21–28. Defendant’s declarant explained that “[t]here does not appear to be any definition in law or regulation of the term ‘high ranking’ as applied to government employees,” Fifth Hubbard Declaration ¶ 13, and so SIGAR created its own “objective standard”:
In an attempt to use a bright-line definition in the context of the lessons learned program and to minimize subjectivity, SIGAR concluded that a “high ranking” government employee was anyone appointed by the President and confirmed by the Senate. This includes all ambassadors, generals, and admirals, all cabinet secretaries and heads of agencies, and all deputy secretaries, under secretaries, and assistant secretaries. In addition, informants who were obviously public figures with policy-making or other independent authority could be “high ranking” government employees, e.g., an individual appointed to an “acting” high-ranking position, or a special envoy.
In its cross motion for summary judgment, plaintiff claims that defendant mischaracterized some high-ranking public officials as low-ranking public officials, Pl.’s Mem. at 12–14, and that it then improperly balanced their privacy interests against the public interest in the information. See id. at 15–19.
Plaintiff accurately points out that the privacy interest diminishes and public interest increases as an official’s rank increases, see Pl.’s Mem. at 12, quoting Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984), and it takes issue with the designation of five individuals as “low-ranking” or “low level” employees:
• the former Senior Advisor on Afghanistan and Pakistan to the Under Secretary of Defense for Policy;
• the former Senior Director for Afghanistan on the National Security Council;
• the Director for Afghanistan and Pakistan on the National Security Council staff;
• the former special assistant to NATO’s commander in Afghanistan, General Stanley McChrystal; and
• a senior adviser to the State Department’s Special Representative for Afghanistan and Pakistan.
Pl.’s Mem. at 13–14.15 According to plaintiff, based in part on publicly available biographies, these individuals held more important posts than the Third Vaughn Index would indicate, and therefore, the representations are “suspect,” and defendant’s declaration and Vaughn Index are “in bad faith and should be given no weight.” Pl.’s Mem. at 14.
While one can argue that these individuals played roles of importance, plaintiff has not identified evidence in the record that would overcome the presumption of good faith that attaches to the declarations. All are senior advisers to high-level decisionmakers. So while these credentialed individuals may outrank many government employees, they were not high-ranking government officials with decision-making authority that can be likened to the agency itself.

 

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How soon before somebody needs to spend more time with the family?

 

Related: WaPo: Surprise, Panic and Fateful Choices, the Fall of Kabul

 

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More on Operation Allies Refuge With D/MR McKeon, Amb. Jacobson and SSDO #1 On Background

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On July 21, the State Department held a briefing on Operation Allies Refuge where D/MR Brian McKeon and Afghanistan Task Force Director Ambassador Tracey Jacobson gave remarks to the press and a Senior State Department official did a Q&A on background with reporters.  US Embassy Kabul CDA Ross Wilson noted previously  in a tweet that post is “working hard to process SIV applicants and have interviewed more than 1600 along with their family members since April.” D/MR McKeon has the number for approved visas saying, “Since January, we’ve already approved 2,500 Special Immigrant Visas.”
Some 750 Afghan SIV applicants and families will be “paroled” into the U.S. starting next week. They will be located at Fort Lee, VA where they are expected, at least right now, to stay for processing for 7 to 10 days. What happens to them afterwards?
Per 9 FAM 202.3, parole authority is governed by section 212(d)(5) of the Immigration and Nationality Act. Section 402 of the Homeland Security Act of 2002, Public Law 107-296 transfers authority for immigration matters to the Secretary of Homeland Security (DHS), including authorizing parole for an alien into the United States for urgent humanitarian reasons or for significant public benefit.
Note that neither the State Department nor consular officers have the authority to approve or extend any type of parole under any circumstances.  Parole is a discretionary authority of the Secretary of Homeland Security. The FAM says “It should be seen as a last resort for persons with urgent needs to travel to the United States or for cases with significant public benefit.”
The FAM also notes that “parolees who are paroled pursuant to INA 212(d)(5)(A) for urgent humanitarian reasons or for significant public benefit reasons do not receive the type of resettlement assistance that is provided to refugees.” So, how are they supposed to start new lives in the United States without resettlement assistance?
About 4,000 principal applicants and their families will be taken to an unnamed third-country location while they wait for the completion of their SIV application. The SDO told reporters they are “not in a position to confirm any agreements with any of those third countries at this time” when asked about potential relocations to military bases in  Kuwait and Qatar.
The State Department also told reporters that SIV applicants “would have to get themselves to Kabul” adding that  “we don’t have substantial U.S. military presence. We don’t have an ability to provide transportation for them.” Excerpts below:
Related post: USG to Mount ‘Operation Allies Refuge’ to Relocate Afghans Who Aided United States US Embassy Kabul Interviewed 1,600 Afghan SIV Applicants Since April, Interviewed ≠ Issued Visas July 13, 2021
Deputy Secretary of State for Management and Resources Brian McKeon:

“In February, Embassy Kabul reopened for in-person immigrant visa services following an 11-month suspension due to the COVID-19 pandemic. That backlog has since been cleared out and we’re working as fast possible to interview SIV applicants whose appointments were canceled during a recent COVID outbreak in Kabul. Since January, we’ve already approved 2,500 Special Immigrant Visas.”

Afghanistan Task Force Director Ambassador Tracey Jacobson:

Our first priority is to relocate to the United States some 750 Afghan SIV applicants and their immediate families who have completed the majority of the visa process, including a thorough security background check. We are working to bring them to the United States starting next week. They will be paroled into the United States and have their status adjusted by the Department of Homeland Security. During this processing, they will be located at Fort Lee, Virginia, and when they leave Fort Lee, they will join 70,000 Afghans who have received SIVs and started new lives in the United States since 2008.

We are also working to relocate from Afghanistan those applicants who have received chief of mission approval but have not gone so far in their visa processing, including the full security screen. This group includes about 4,000 principal applicants and their families. We will take them to locations outside the United States where they can safely await the completion of their application processing, and we will provide them accommodation and other support during this period, which we are committed to making as short as possible.

QUESTION:  Thanks, guys, for doing this. I think we all have a bunch of questions. I am wondering how long the administration plans to be doing these relocation efforts. Do you expect this is something that will happen over the course of years given some SIV applicants have just applied recently given the U.S. troop withdrawal?

My second question is about safety for these Afghans. What is the U.S. doing, what can the U.S. do to provide them with any safety when U.S. troops withdraw from the country, and how are they being transported to the airport? Is there any support for them given threats from the Taliban? And last question is: How long are they expected to stay at Fort Lee in this final stage? Thanks.

SENIOR STATE DEPARTMENT OFFICIAL ONE:  So working backward, we don’t expect them to stay at Fort Lee for very often, or very long, excuse me. We’ll try to work them through Fort Lee in 7 to 10 day is our hope and expectation. The applicants need to get themselves to Kabul. We’re not going to talk about how they get in and around Kabul and to the airport for security reasons.

The SIV Program is – has eligibility standards, and we have authorized numbers from the U.S. Congress, and so long as we keep having those numbers provided to us by Congress, we’ll keep processing SIV applicants.

QUESTION:  Can you talk about the others in the program and where else they might be going, and how long it will take to get what was originally estimated as as many as 70,000 people, including families, accommodated because obviously their lives are right now in danger? Thank you.

SENIOR STATE DEPARTMENT OFFICIAL ONE:  So the total number of applicants to the SIV Program number just over 20,000, but about half of those have not yet completed the initial stages of the application process, so we’re not in a position to move forward with their case until they do so. So I’m not sure where the 70,000 number comes from. The 4,000 number and their families, they would be targeted for the next phase of bringing people to third country locations, and that process in the third country would take longer because they’re not as far along in the screening process as those who we will bring to the United States.

QUESTION:  Thanks, guys. Let me follow up on what comes next. Can you confirm that there’s the deal pretty much done to move, I don’t know if it’s the next round or the third round, some of these applicants to military bases in Kuwait and Qatar? And can you talk about whether there’s a push on P-2 refugees, whether the number – sorry, the kind of aperture of the person who can apply, whether there’s a push to expand that aperture and including P-2 refugees. And I know you don’t want to talk about some of the details on transport for security reasons, but can you give us any more details on how exactly they will get to Fort Lee this first round? Thanks.

SENIOR STATE DEPARTMENT OFFICIAL ONE:  I’m sorry, Nick, I was – I didn’t understand the last piece of the question. I’m not sure we have many answers that we can give you. We’re talking to third countries about the possibility of temporary relocation, but we’re not in a position to confirm any agreements with any of those third countries at this time.

On the transportation to Fort Lee, we will fly them into the country and bring them by vehicle to Fort Lee. I assume it will be buses.

QUESTION:  Hi there. Thank you for doing this. Let’s see. Is the – because the Afghan SIVs will fly out through the Kabul airport, has there been an agreement finalized to keep that operating under Turkey? I don’t know if their relocations are all supposed to be completed by the time the U.S. withdraws or not. And then you say you’re – do you not yet have any agreement from any other country to temporarily host the Afghan SIVs?

SENIOR STATE DEPARTMENT OFFICIAL ONE:  On the second question, we don’t have agreement with any countries that we’re ready to announce here.

On the airport, obviously, we’ve said the airport needs to be open and functioning as part of a normal country, and we’re grateful for our conversations with our colleagues in Turkey. The DOD is leading those conversations. We’re optimistic that we’ll have the security package that we need at the airport in Kabul.

QUESTION:  Thank you for having this call. A couple of follow-ups as well. Can you say how many there are in total with this group of 4,000 principal applicants who will be moved to third countries? If you include their families, what is that total number?

You said applicants will have to get themselves to Kabul. For many of them, that journey would be dangerous if not impossible. What would you say to the – to security concerns of folks trying to get to Kabul? Thank you.

SENIOR STATE DEPARTMENT OFFICIAL ONE:  So we don’t know for certain how many family members will be brought. The principal applicant can choose to bring the ones that are eligible. We’ve just been doing these rough extrapolations based on an average of three to five per principal applicant based on past practice. In order to come on an evacuation flight, they would have to get themselves to Kabul. Obviously, we don’t have substantial U.S. military presence. We don’t have an ability to provide transportation for them. If they’re, say, in the north of the country and they don’t feel safe staying in Afghanistan, they could go to a neighboring country and finish their SIV application process there.

QUESTION:  Good afternoon. Thank you so much for the call. Just a follow-up question on the Afghanistan fixers who have helped the U.S. press organizations. Would you support the creation of a visa program for those Afghans, Afghans who helped with the U.S. media organizations and who are now seeking safety in the U.S.? I’m asking this because a coalition of U.S. media organizations has sent a letter to the Congress requesting to create such visa program. Would you like to weigh in? Thank you.

SENIOR STATE DEPARTMENT OFFICIAL ONE:   Yes, thank you. We’ve seen the letter from the news organizations and we’ll be responding in due course to them. As I think I’ve responded previously to this question, in terms of other people in Afghanistan who have helped the United States or helped U.S. organizations, whether it’s NGOs or media organizations, we are looking at other options for providing safe options for them outside of Afghanistan.

 

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Just Security: Legacy of Late State Department Human Rights Champion Tex Harris Reverberates Today

 

Martin Edwin Andersen, a former professional staff member on the US Senate Foreign Relations Committee, is the author of Dossier Secreto: Argentina’s Desaparecidos and the Myth of the Dirty “War.” Below is an excerpt from his piece, Legacy of Late State Department Human Rights Champion Tex Harris Reverberates Today via Just Security:

Harris began working in Buenos Aires in June 1977, 12 years after joining the Foreign Service and a year after then-Secretary of State Henry Kissinger made comments in a closed-door meeting that Robert C. Hill, a Nixon ambassadorial appointee, later revealed served as a “green light” to the Argentine junta for its campaign of disappearances, torture, and state terror.
[…]
Harris put himself at risk almost daily at his post with the U.S. Embassy in Buenos Aires. He tried to help thousands of families seeking news about those kidnapped, tortured, and clandestinely executed as part of a delusional bloodfest by Argentina’s generals. Harris’ work demonstrated that the junta’s drive to eradicate the much-exaggerated, if vicious, leftist terrorist movement also killed or “disappeared” thousands of innocents, including children, pregnant women, senior citizens, and handicapped individuals. According to an Argentine Foreign Ministry statement last week, from 1977 to 1979, Harris filed some 13,500 official complaints on human rights violations.
[…]
The tensions became so acute that Undersecretary of State for Political Affairs David D. Newsom, who sympathized with Harris’ plight, brokered a previously unheard of agreement between the embassy country team and the human rights officer. The pact was meant to ensure that critical information and analysis was included as “official-informal” letters sent to Washington, even if the country team disagreed. Harris was required to share a copy of his reporting with Castro, but in return he was able to get unfettered information and analysis into the right hands without fear of censorship from his Buenos Aires office mates.

The agreement was frequently broken by Harris’ embassy foes. In one instance, a misleading performance evaluation jeopardized his career advancement, as critics claimed that he was not producing enough human rights reports even as they prevented the many he produced from being sent to Washington. A now-forgotten political counselor lectured Harris on the importance of “working for those who had more experience and wisdom.”
[..]
An unforgettable mentor as well as role model for many of those who fought to make Carter’s human rights revolution a reality, Harris will be remembered as a real hero, especially at this particularly troubled time abroad for American democracy and leadership.

Read in full below:

Related posts:

Afghanistan Papers: A secret history of the war #hardreading

 

 

Statements of Support For Former US Ambassador to Ukraine Marie Yovanovitch

 

Ambassador Marie Yovanovitch was previously scheduled to appear for a deposition in Congress on Wednesday, October 2. Reports indicate that she is now scheduled to appear before the oversight body on Friday, Oct. 11, 2019.
In the meantime, the American Academy of Diplomacy has issued a joint statement signed by AAD Chairman Thomas R. Pickering  and AAD President Ronald E. Neumann supporting Ambassador Marie Yovanovitch.
Ambassador Marie Yovanovitch Must Be Supported

Washington, D.C. – The American Academy of Diplomacy calls on the Administration to make clear that it will not act against career diplomat Ambassador Marie Yovanovitch for doing her duty and working to support long established US policies and values. The Administration removed Ambassador Yovanovitch from her post in Ukraine prematurely. Now, we note with great concern the statement by President Donald Trump in the recently released memorandum of conversation with Ukraine’s president, in which the President said of Ambassador Yovanovitch, “Well, she’s going to go through some things.” The threatening tone of this statement is deeply troubling. It suggests actions outside of and contrary to the procedures and standards of a professional service whose officers, like their military counterparts, take an oath to uphold the Constitution. Whatever views the Administration has of Ambassador Yovanovitch’s performance, we call on the Administration to make clear that retaliation for political reasons will not be tolerated.

The Academy is a non-partisan organization of former senior U.S. diplomats, career and political appointees, who have served over decades. Our mission is strengthening American diplomacy. In our careers, we have worked around the world and under Republican and Democratic administrations alike and frequently acted publicly and privately against foreign corruption. Speaking out against foreign corruption is consistent also with the Foreign Anti-Corruption Act that binds U.S. business.

The American Foreign Service Association, the “voice of the Foreign Service” has also issued a statement on The Importance of a Non-Partisan Career Foreign Service but made no specific mention of Ambassador Yovanovitch’s case.
On October 1, NBC News reports that more than 50 former female U.S. ambassadors are calling on President Trump and Secretary of State Mike Pompeo in a letter to protect foreign service officers from political retaliation in the wake of the ousting of the former U.S. ambassador to Ukraine, Marie Yovanovitch.  The signatories of the letter are members of an organization of current and former ambassadors, Women Ambassadors Serving America.
The report notes that “Only one current U.S. ambassador signed the letter: Catherine Ebert-Gray, a career foreign service officers who serves as the U.S. envoy to Papua New Guinea, the Solomon Islands and Vanuatu. Her signature comes with a notable caveat; She adds that “The views expressed are my own and not necessarily those of the U.S. government. Signing a public letter critical of the Trump administration could put current ambassadors at professional risk, which likely explains why Ebert-Gray is the only one to sign the letter.”

 

 

The reason for “Domestic Only” medical clearance determination is bing, bong, bing #HelpMED

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…. In your request for a review please advise that you understand that you were given a Domestic Only Assignment (Class 5) clearance for the above stated reasons, but that you disagree with that decision and would like to have the adjudication reviewed.”

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@StateDept’s “New Camp Sullivan” in Afghanistan Four Years On: A Lovely $103.2 Million Flat Dirt

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State/OIG’s Office of Evaluation and Special Projects has released its Evaluation of the Bureau of Diplomatic Security’s Aegis Construction Contract at Camp Eggers in Afghanistan (PDF). Well, nothing good to read in this report, but the flat dirt is lovely, and makes us want to pull our hair out in  frustration. We bring you some GIFs to make us all feel better.

Camp Eggers Afghanistan, Photo by State/OIG

Things of note excerpted from the IG report:
The Department awarded Task Order 10 in July 2011 to Aegis (GardaWorld)  to provide and manage an armed and unarmed guard force known as the Kabul Embassy Security Force (KESF) for Embassy Kabul and other U.S. diplomatic facilities within Kabul, Afghanistan. On September 30, 2014, the Department modified Task Order 10 held by Aegis to allow for the renovation of Camp Eggers in its entirety and to erect a new facility known as the “New Camp Sullivan.” […]Modification 43 was issued to Aegis under a firm fixed price for the design-build of the Camp Eggers construction project. The task order modification was valued at about $173.2 million with an estimated completion date of March 31, 2016.
[…] An Aegis official told OIG he did not believe the company had undertaken any construction projects other than building a shooting range at Camp Sullivan. An OBO official noted that Aegis lacked the “institutional expertise” to build to OBO standards, and several Department officials told OIG that they had doubts about Aegis’s ability to carry out major construction work.

 

On January 10, 2014, AQM awarded a contract to the management consulting firm, Markon, on behalf of DS to perform professional engineering services.[..] Markon […] warned the Department in August 2014—a month before the task order was modified—that the project would not likely be finished on time or on budget. The Department nonetheless chose to move forward with this fundamentally unsuitable construction mechanism because of what it viewed as exigent need and a lack of alternatives.

 

Multiple Department officials, as well as an Aegis official, told OIG that they viewed the initial 18-month project timeline as unreasonable. An official from AQM expressed skepticism that such an extensive project could ever be completed so quickly in a construction environment as logistically complex as Afghanistan.[…]The renovation of Camp Eggers entailed extensive demolition and redevelopment, including [snip] the construction of new facilities. The “New Camp Sullivan” facility was intended to become a self-supporting, multi-use facility, which included life support for up to 900 personnel (expandable to house up to 1,500 personnel) all within a secure perimeter.

 

Aegis, through its subcontractor, CWI, purchased materials costing approximately $19.4 million for Camp Eggers. However, roughly 23 percent of these materials ($4.5 million) were obtained without submitting proper documentation or receiving proper Department approval.[…]The materials had to be stored due to numerous project delays, which prevented CWI from using the materials as they were delivered. The storage continued throughout the life of the contract until all of the materials were disposed of by May 2018. Over the life of the task order, the Department wasted about $22 million on materials that were never used and then paid to store them

 

Although Aegis continuously missed project milestones and failed to adhere to contract requirements, the Department still did not take meaningful corrective action against Aegis beyond issuing LOCs. As noted, these were primarily issued by DS. The Department also held a number of meetings with Aegis personnel to discuss the lack of progress made on the project, but no further corrective action was taken.

 

The Department reached a settlement with Aegis in March 2019 whereby the Department agreed to pay Aegis a total of $94.6 million. Based on this figure, in addition to three separate contracts with Markon Solutions, Incorporated for professional engineering and design review services, OIG identified a total of $103.2 million in questioned costs related to the Camp Eggers project.[…] the “New Camp Sullivan” remained flat dirt after more than four years of effort. The Department estimated that approximately 10 percent of the construction work was completed, and the 100 percent design—the final design—remained unfinished.

After the termination of the Camp Eggers project, the Department transferred materials stored in Kabul to fill other U.S. Government needs in the area. Regarding the materials in Dubai, Red Sea Housing Services Company FZE (Red Sea), the company with whom the Department ordered CHUs, reached a final termination settlement valued at about $2.5 million with Aegis and the Department under which Red Sea would keep all the materials and equipment they procured on behalf of the Department. The remaining materials in Sterling, VA were disposed of through the General Services Administration’s excess property program and some were scrapped.

Via reactiongif.com

 

OIG’s conclusion: [T]he Department’s sense of urgency, the selection of a non-construction contractor, the assignment of officials inexperienced in construction to oversee the project, and the failure to hold the contractor accountable for particular instances of poor performance led to the expenditure of more than $100 million without any discernible benefit to the Department or the people it intended to protect. OIG also notes that, more generally, this project illustrates many of the broader concerns that arise when the Department pursues construction projects in contingency or otherwise challenging environments. The Camp Eggers project again highlights the importance of making well-informed, thoughtful choices regarding the most appropriate contract vehicle; careful, consistent oversight; and development of a process for construction work in contingency zones that is sufficiently nimble to address urgent security needs but also considers the resources and capabilities of all relevant Department bureaus.

Amb. Hoekstra Apologizes For Netherlands Comment: “It Was Wrong”

Posted: 4:42 am ET

 

We previously blogged about the new U.S. Ambassador to the Netherlands here:

On January 12, two weeks after he first issued his ‘non-apology’ apology, Ambassador Hoekstra finally admitted during an interview with De Telegraaf that what he said about the Netherlands “was wrong.” The apology came after headlines calling the top American representative in the Netherlands “Lying Pete Hoekstra” and the lying Dutchman, and after the State Department “made clear to the ambassador that – that he must move to get this behind him.”

On January 11, U/S Goldstein told members of the press that they “should turn into that interview tomorrow” in reference to the long-form interview that turned out to be one with De Telegraaf.  As of this writing, we have searched but have not been able to locate a transcript of Ambassador Hoekstra’s interview where he offered his apology.  There also is no mention of this interview nor the transcript of the interview on the website of U.S. Embassy The Hague.

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