Who’s a Slacker in Policing Sexual Misconduct in Federal Agencies? Take a Guess

Posted: 1:26 am ET
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WaPo just did a piece on sexual misconduct in federal agencies, or the lack of consistent disciplinary practices across agencies based on the staff report by the House Oversight Government Report Committee (report embedded below).

Here’s a public request from WaPo’s Joe Davidson who writes the Federal Insider column:

Questions for Federal Insider readers: How pervasive is sexual harassment in the federal government? If you have been the target of sexual harassment, please tell us the circumstances, what form the harassment took, whether it was reported, what was done about it and whether the perpetrator was disciplined. We will use this information for a future column. In certain cases we can print your comments without identification. Please send your comments to joe.davidson@washpost.com with “sexual misconduct” in the subject line.

Here is an excerpt from the OGRC, a case study that is distinctly familiar:

The hearing examined patterns of sexual harassment and misconduct at the USDA, as well as the fear many employees had of retaliation for reporting these types of cases. It also addressed the agency’s response to harassment incidents and its efforts to improve.66

At the hearing, two women testified publicly about the harassment they personally experienced while on the job at the Forest Service and how the agency’s subsequent investigation and discipline failed to address those responsible. Witness Denice Rice testified about her experiences dealing with sexual harassment on the job when her division chief was allowed to retire before facing discipline, despite his history of misconduct.67 Further, the Forest Service re-hired this individual as a contractor and invited him to give a motivational speech to employees.68 In addition, witness Lesa Donnelly testified about her and others’ experiences with sexual misconduct at the Forest Service. Her testimony spoke about those who were too afraid to report harassment because they feared retaliation from the perpetrators.69

The report cites USAID and the State Department for having Tables of Penalties but although it cites USAID for having “differing Tables of Penalties for foreign service employees and other civilian employees primarily covered by Title 5, United States Code”, it says that the State Department’s Table is “used for foreign service employees only”.

The Foreign Affairs Manual actually spells out penalties for both Foreign Service and Civil Service employees.

3 FAM 4370 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – FOREIGN SERVICE

24. Use of U.S. Government equipment for prohibited activities, including gambling, advertising for personal gain, or viewing, downloading, storing, transmitting, or copying materials that are sexually explicit, while on or off duty or on or off U.S. Government premises

50. Violation of laws, regulations, or policies relative to trafficking in persons and the procurement of commercial sex, any attempt to procure commercial sex, or the appearance of procuring commercial sex

51.  Sexual Assault (3 FAM 1700)

3 FAM 4540 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – CIVIL SERVICE

24. Use of U.S. Government equipment for prohibited activities, including gambling, advertising for personal gain, or viewing, downloading, storing, or transmitting, or copying materials that are sexually explicit, while on duty.

48. Violation of laws, regulations, or policies relative to trafficking in persons and the procurement of commercial sex, any attempt to procure commercial sex, or the appearance of procuring of commercial sex

49. Sexual Assault (3 FAM 1700)

You will note by now that sexual harassment is not on these Tables of Penalties.  Both regs cited above have a section that says its Table of Penalties is not an all-inclusive list. The State Department says “It is impossible to list every possible punishable offense, and no attempt has been made to do this:” But it includes this:

#a. Employees are on notice that any violation of Department regulations could be deemed misconduct regardless of whether listed in 3 FAM 4540.  This table of penalties lists the most common types of employee misconduct.  Some offenses have been included mainly as a reminder that particular behavior is to be avoided, and in the case of certain type of offenses, like sexual assault, workplace violence, and discriminatory and sexual harassment, to understand the Department’s no-tolerance policy.

#b. All employees are on notice that misconduct toward, or exploitation of, those who are particularly vulnerable to the employee’s authority and control, e.g., subordinates, are considered to be particularly egregious and will not be tolerated.

The State Department’s sexual harassment policy is here.  Also see  3 FAM 1520  NON-DISCRIMINATION ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, SEX, OR RELIGION updated last in December 2010.

For blogposts on sexual harassment click here; for sexual assaults, click here.

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Visa Holders Who Violate #90DayRule May be Presumed to be of “Material Misrepresentation”

Posted: 4:44 am ET
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On September 26, the State Department updated its FAM guidance on INELIGIBILITY BASED ON ILLEGAL ENTRY, MISREPRESENTATION AND OTHER IMMIGRATION VIOLATIONS – INA 212(A)(6)

INA 212(a)(6)(C)(i) provides an alien who seeks to procure, or has sought to procure, or has procured a visa, other documentation, or entry into the United States or other benefit provided under the INA by fraud or willfully misrepresenting a material fact at any time shall be ineligible for a visa.

9 FAM 302.9-4(B)(2) notes that “most cases of inadmissibility under this section will involve “material misrepresentations” rather than “fraud” since actual proof of an alien’s intent to deceive may be hard to come by.  As a result, the Notes in this section will deal principally with the interpretation of “material misrepresentation.”

The guidance tells consular adjudicators that “To conclude there was a misrepresentation, you must have direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion but less than a preponderance of the evidence.”

On September 16, 2017 the State Department sent 17 STATE 95090 on the Change to INA 212(a)(6)(C)(i) and Introduction of 90 Day Rule

1. SUMMARY: This cable advises posts on the application of INA section 212(a)(6)(C)(i) as it pertains to revised guidance at 9 FAM 302.9-4(B)(3)(g-h) regarding the 90 day rule, formerly known as the “30/60 day rule.” Interagency working groups agreed to a change in policy and expanded the 30/60 day timeframe to 90 days for aliens who enter the United States and engage in activity inconsistent with their nonimmigrant status before procuring a change or adjustment of status. END SUMMARY.

The 90 day rule

2. The following revised guidance replaces the 30/60 day rule and applies to all adjudications that occur after September 1. The guidance should not be applied retroactively. As detailed in the revisions to 9 FAM 302.9-4(B)(3)(g-h), aliens who violate or engage in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States by:

1) engaging in unauthorized employment;
2) enrolling in a course of unauthorized academic study;
3) marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States while in a nonimmigrant visa classification that prohibits immigrant intent; or
4) undertaking any other activity for which a change of status or adjustment of status would be required prior to obtaining such change or adjustment, may be presumed to have made a material misrepresentation.

You must give the alien the opportunity to present evidence to rebut the presumption that he or she made a willful misrepresentation on prior visa applications or in their applications for admission to the United States before you can find the applicant ineligible under 212(a)(6)(C)(i). If the applicant is unable to overcome the presumption that he or she engaged in a willful misrepresentation, post must request an Advisory Opinion (AO) from the Visa Office of Advisory Opinions (CA/VO/L/A) per 9 FAM 302.9-4(B)(3)(h)(2)(b).

3. If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.

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Trump Announces New Visa Restrictions For Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, Somalia

Posted: 12:17 am ET
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President Trump issued E.O. 13780 on March 6 (Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States). It revoked the January 27 order, and reissued the ban for the same six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen, with Iraq excepted (see Trump Revokes Travel Ban EO, Reissues New Executive Order For Six Muslim Countries Minus Iraq).

As we’ve pointed out previously here, there’s something in EO 13780 that did not get as much attention as the travel ban.  Section 2 (a) and (b) of the E.O. requires the review of immigration-related information sharing by foreign governments.

Sec. 2.  Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period.  (a)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.  The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.

(b)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order.  The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.

The report required under Section 2(b) was reportedly submitted in mid-July to the President. The State Department subsequently sent a guidance cable to all posts worldwide to help foreign governments understand the requirements and how they can start meeting them. We understand that posts were told to request a response from their host government counterparts to enable them to respond to the State Department by July 21.

On September 24, President Trump announced new security measures that establish minimum requirements for international cooperation to support U.S. visa and immigration vetting and new visa restrictions for eight countries. The announcement cites Section 2 of Executive Order 13780 — “if foreign countries do not meet the United States Government’s traveler vetting and information sharing requirements, their nationals may not be allowed to enter the United States or may face other travel restrictions, with certain exceptions.” Below are the country-specific restrictions per Fact Sheet: Proclamation on Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats:

Country-Specific Travel Restrictions:

  • The United States maintained, modified, or eased restriction on 5 of 6 countries currently designated by Executive Order 13780. Those countries are Iran, Libya, Syria, Yemen, and Somalia.
  • The United States lifted restrictions on 1 of 6 countries currently designated by Executive Order 13780: Sudan.
  • The United States added restrictions and/or additional vetting on 3 additional countries found to not meet baseline requirements, but that were not included in Executive Order 13780. These countries are: Chad, North Korea, and Venezuela.
  • The country specific restrictions are as follows:

Chad – Although it is an important partner, especially in the fight against terrorists, the government in Chad does not adequately share public-safety and terrorism-related information, and several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa’ida in the Islamic Maghreb. Accordingly, the entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.

Iran – The government in Iran regularly fails to cooperate with the United States Government in identifying security risks; is the source of significant terrorist threats; is state sponsor of terrorism; and fails to receive its nationals subject to final orders of removal from the United States. Accordingly, the entry into the United States of nationals of Iran as immigrants and as nonimmigrants is suspended, except that entry by nationals of Iran under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals will be subject to enhanced screening and vetting requirements.

Libya – Although it is an important partner, especially in the area of counterterrorism, the government in Libya faces significant challenges in sharing several types of information, including public-safety and terrorism-related information; has significant inadequacies in its identity-management protocols; has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States; and has a substantial terrorist presence within its territory. Accordingly, the entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.

North Korea – The government in North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements. Accordingly, the entry into the United States of nationals of North Korea as immigrants and nonimmigrants is suspended.

Somalia – Although it satisfies minimum U.S. information-sharing requirements, the government in Somalia still has significant identity-management deficiencies; is recognized as a terrorist safe haven; remains a destination for individuals attempting to join terrorist groups that threaten the national security of the United States; and struggles to govern its territory and to limit terrorists’ freedom of movement, access to resources, and capacity to operate. Accordingly, the entry into the United States of nationals of Somalia as immigrants is suspended, and nonimmigrants traveling to the United States will be subject to enhanced screening and vetting requirements.

Syria – The government in Syria regularly fails to cooperate with the U.S. Government in identifying security risks; is the source of significant terrorist threats; has been designated as a state sponsor of terrorism; has significant inadequacies in identity-management protocols; and fails to share public-safety and terrorism information. Accordingly, the entry into the United States of nationals of Syria as immigrants and nonimmigrants is suspended.

Venezuela – The government in Venezuela is uncooperative in verifying whether its citizens pose national security or public-safety threats; fails to share public-safety and terrorism-related information adequately; and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. Accordingly, the entry into the United States of certain Venezuelan government officials and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.

Yemen – Although it is an important partner, especially in the fight against terrorism, the government in Yemen faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory; fails to satisfy critical identity-management requirements; and does not share public-safety and terrorism-related information adequately. Accordingly, the entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.

IRAQ: The Secretary of Homeland Security also assesses Iraq as inadequate according to the baseline criteria, but has determined that entry restrictions and limitations under a Presidential proclamation are not warranted because of the close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State of Iraq and Syria (ISIS).

The Secretary recommends, however, that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States.

The FAQ notes that these restrictions and limitations took effect at 3:30 p.m. eastern daylight time on September 24, 2017, for foreign nationals “who were subject to the suspension of entry under section 2 of E.O. 13780, and who lack a credible claim of a bonda fide relationship with a person or entity of the United States.” The restrictions and limitations take effect at 12:01 a.m. eastern daylight time on October 18, 2017, for all other foreign nationals subject to the suspension of entry under section 2 of E.O. 13780, and for nationals of Chad, North Korea, and Venezuela.

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Related posts:

Snapshot: Stop/Start Process For Hardship Pay For Employees Traveling Away From Post

Posted: 12:57 am ET
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Via GAO:

Stop/Start Process For Hardship Pay (click on image for larger view)

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Snapshot: @StateDept Process For Determining Danger Pay Eligibility

Posted: 3:07 am ET
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Via GAO:

Danger Pay Process, State Department via GAO, September 2017

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GAO Reviews @StateDept’s Hardship and Danger Pay Allowances

Posted: 4:21 am ET
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Back in February 2015, we blogged about the State Department then considering changes to its danger pay allowance (see Danger Danger, Bang Bang — State Department Eyes Changes in Danger Pay). In September 2015, we updated that post as new danger pay designation came into effect (see New Danger Pay Differential Posts: See Gainers, Plus Losers Include One Post on Evacuation Status.)

More recently, the Government Accountability Office was asked by the House Oversight and Government Reform (HOGR) Committee to review the State Department’s administration of hardship and danger pay for its employees. The GAO report examines the following:

(1) State’s spending at overseas posts for hardship and danger pay in fiscal years 2011-2016
(2) the extent to which State has followed its process for determining hardship and danger pay rates at overseas posts
(3) the procedures State uses to implement its policies for stopping and starting hardship and danger pay when employees temporarily leave their assigned overseas posts
(4) the extent to which State has identified improper payments related to hardship and danger pay.

The GAO made the following conclusions:

  • State mostly followed the new processes it established in 2015 for determining hardship and danger pay rates and locations, in a few cases it awarded Director Points that increased hardship pay for posts without clearly explaining in its documentation how the conditions at these posts met State’s criteria. Without clearer documentation, State cannot provide assurances that it is applying Director Points consistently across posts and tenures of ALS Directors, potentially leading to increased spending on hardship pay not otherwise justified under State’s current process for determining rates.  (The report notes that 12 of the 15 memos did not clearly document how the posts met State’s criteria for awarding Director Points.  State approved hardship rates for these posts that were 5 percent higher than the rate they would have received in the absence of Director Points. State policies note that Director Points may be awarded for extreme conditions not adequately captured in State’s written standards).
  • State has not assessed the cost- effectiveness of its policies and procedures for stopping and starting hardship pay when employees temporarily leave their overseas posts. State officials noted that these policies and procedures are resource intensive to implement and contribute to improper payments, which are costly to recover. Without reviewing the cost-effectiveness of these policies and procedures, State does not know whether they are effective, efficient, and economical.
  • By not analyzing available data compiled by CGFS, State may be missing an opportunity to identify, recover, and prevent improper payments related to hardship pay with the potential to produce cost savings for the U.S. government. Our independent analysis of State data identified overseas posts accounting for millions of dollars in hardship spending in fiscal years 2015 and 2016 that may be at high risk for improper payments.

It also offers the following recommendations for the following offices:

Director of Allowance/ALS — should clearly document how the conditions at relevant posts meet the criteria for Director Points to ensure that hardship pay rates for overseas posts are consistently determined across posts and tenures of ALS Directors.

Undersecretary of Management — should assess the cost- effectiveness of State’s policies and procedures for stopping and starting hardship pay for employees who temporarily leave their assigned overseas posts. (Recommendation 2)

Department’s Comptroller/CGFS — should analyze available diplomatic cable data from overseas posts to identify posts at risk of improper payments for hardship pay, identify any improper payments, and take steps to recover and prevent them. (Recommendation 3)

Other details:

FOUR POSTS: The GAO conducted fieldwork at four posts that receive hardship or danger pay: Islamabad, Pakistan; Mexico City, Mexico; New Delhi, India; and Tunis, Tunisia.

THREE-QUARTERS OF FS WORKFORCE:  According to State data, about three-quarters of the department’s Foreign Service overseas work force, as of September 30, 2016, was based at a post designated for hardship pay.

HARDSHIP PAY: As of February 5, 2017, State offered hardship pay at 188 of its 273 overseas posts (about 69 percent).

DANGER PAY: As of February 5, 2017, State had provided danger pay at 25 of its 273 overseas posts (about 9 percent).

SIX POSTS: As of February 5, 2017, 21 overseas posts were eligible for both hardship and danger allowances, and 6 posts were receiving the maximum 70 percent combined rate for hardship and danger pay: Bangui, Central African Republic; Basrah, Iraq; Kabul, Afghanistan; Mogadishu, Somalia; Peshawar, Pakistan; and Tripoli, Libya.

AFGHANISTAN AND IRAQ: State spent about $138 million on hardship pay in Afghanistan and Iraq in fiscal years 2011 through 2016— about 19 percent of its total spending on hardship pay. State spent about $125 million on danger pay in these two countries over the same period, almost half of its worldwide danger pay spending.

1 BILLION (FY2011-2015) :  State spent about $1 billion for hardship and danger pay in fiscal years 2011 through 2016, including $732 million for State employees serving in locations designated for hardship pay and $266 million for employees serving in locations designated for danger pay.

STOP/START PAYMENTS: According to CGFS data, overseas posts sent diplomatic cables requiring CGFS to make more than 10,000 manual adjustments to temporarily stop and start employees’ hardship pay in both 2015 and 2016.

IMPROPER PAYMENTS: CGFS identified a total of about $2.9 million in improper payments for hardship and danger pay in fiscal years 2015 and 2016.  As of March 2017, CGFS had recovered almost $2.7 million, or about 92 percent, of the improper payments it identified in 2015 and 2016 related to hardship and danger pay. According to CGFS officials, the bureau was continuing efforts to recover the remaining 8 percent.

The full report is available to read here: GAO OVERSEAS ALLOWANCES 9-2017.
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@StateDept “Consolidates” Regulations for Official Communication Using Social Media

Posted: 3:19 am ET
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We previously blogged about the use of social media in State Department official communication back in February (see @StateDept Issues Guidance For Official Communication Using Social Media, What’s Missing?). On August 24, the State Department updated its guidance for official communication using social media. “To engage on social media in an official capacity, personnel must use an account created specifically for official use that is separate from an account used for private, personal use.”  The guidance also notes that “all Department social media sites used for official public communications must be registered by visiting the Social Media Account Registry on Diplopedia.”  The change transmittal notes that this change “consolidates regulations concerning social media for official public diplomacy and public affairs purposes.”

Per Foreign Affairs Manual 10 FAM 180:

a. Senior officials and other employees whose positions make it appropriate for them to engage in official communications on behalf of the Department over social media (“Department social media spokespersons”) must not use personal social media accounts to do so.  They must use official social media accounts, created and owned by the Department.

(1)  Department social media spokespersons must be instructed before they begin their positions that they will not be able to use their personal social media accounts for official communications, and that content on personal social media accounts must comply with 3 FAM 4176.  Forwarding, linking to, or otherwise reposting official content on a personal social media account will not ordinarily constitute official communications if the content was first released on an official platform, provided that it is clear from the circumstances that the personal social media account is not being used to communicate on behalf of the Department.

(2)  When Department social media spokespersons begin their positions, they are provided access to official social media accounts, and they will lose access to those accounts when they leave that position.  Whenever possible, the same account is passed from one incumbent in a position to the next.  As such, account names include only the office or position (e.g., @USEmbConsularManila, @USAmbManila); they do not include personal names.

(3)  Missions, bureaus, or offices must maintain a list of their authorized official social media accounts and the credentials for those accounts.  Accounts are created in accordance with 5 FAM 793.

b. In order to put a “human face” on the Department’s social media presence, Department social media spokespersons are authorized, but not required, to post certain kinds of personal content to their official accounts (e.g., posts about family news, pictures of pets, discussions of hobbies).  This personal content may be considered official communications and must comply with, among other things, restrictions on partisan political activities, endorsements of commercial goods or services, fundraising and solicitations, official actions affecting financial interests, and the publication of information that could compromise the security of the individual or others.  See 3 FAM 4175.2, Content of Official Capacity Public Communications, for additional guidance on content of official communications.

c.  All accounts that have been used for official communications are considered Department accounts, and are either retained by the Department for use by the next incumbent or retired in accordance with applicable records disposition schedules, as appropriate.  The content of such accounts is also retired in accordance with applicable records disposition schedules.

The new guidance also include a section on impersonations on social media; the regs make a distinction with parody accounts (good news Rexxon Drillerson (@RexxonDrill), but have the 10 FAM 184 handy).

a. Impersonations, or the creation of an account that is intended to be mistaken for another account, are not permitted on most major U.S.-based social media platforms, including Facebook and Twitter.  International Information Programs’ (IIP’s) Digital Support and Training Division is responsible for coordinating with U.S.-based third-party social media platforms to assist Department personnel in addressing situations where sites or accounts are impersonating official U.S. Government sites or accounts, including seeking removal of imposter accounts in an expedited manner.  Impersonation accounts are not the same as parody accounts.  Parody accounts pretend to be another account but for humor, satire, or other reasons that rely upon the viewer’s ability to tell that the account is not real, and they are generally permitted under platforms’ Terms of Service.

b. If you determine that there is an impersonation account on Facebook, you must file a ticket with Facebook and then email IIP’s Digital Support and Training Division at IIPSMS@state.gov with relevant details for documentation so that the ticket may be elevated with Facebook.

c.  If you determine that there is an impersonation account on Twitter, you must report the imposter to Twitter using this form and forward the autoreply email from Twitter, including the ticket number, to IIPSMS@state.gov to expedite the removal process with Twitter.

d. If you determine there is an impersonation account on another platform, you must follow that platform’s reporting guidelines and notify IIPSMS@state.gov.

e. You must not interact with or acknowledge the impersonator to avoid encouraging further activity.

What this consolidated guidance still does not include is what happens when “senior officials and other employees”, both career and political appointees do not comply with 10 FAM 180.  What if they refuse to switch from a personal account to an official account? Who will compel them?  And if State can’t compel them, how do you archive official communication from their personal social media account?

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All U.S. Passports Invalid for Travel to North Korea Without Special Validation Effective 9/1/17

Posted: 11:37 am PT
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On July 21, the Department of State declared that all U.S. passports are invalid for travel to the Democratic People’s Republic of Korea (North Korea) unless the travel meets certain criteria.

The Department of State has determined that the serious risk to United States nationals of arrest and long-term detention represents imminent danger to the physical safety of United States nationals traveling to and within the Democratic People’s Republic of Korea (DPRK), within the meaning of 22 CFR 51.63(a)(3). Therefore, pursuant to the authority of 22 U.S.C. 211a and Executive Order 11295 (31 FR 10603), and in accordance with 22 CFR 51.63(a)(3), all United States passports are declared invalid for travel to, in, or through the DPRK unless specially validated for such travel, as specified at 22 CFR 51.64. The restriction on travel to the DPRK shall be effective 30 days after publication of this Notice, and shall remain in effect for one year unless extended or sooner revoked by the Secretary of State.

The notice was published in the Federal Register on August 2, 2017.

photo from travel.state.gov

Per 22 CFR 51.63 Passports invalid for travel into or through restricted areas; 

(a) The Secretary may restrict the use of a passport for travel to or use in a country or area which the Secretary has determined is:

(1) A country with which the United States is at war; or

(2) A country or area where armed hostilities are in progress; or

(3) A country or area in which there is imminent danger to the public health or physical safety of United States travelers.

(b) Any determination made and restriction imposed under paragraph

(a) of this section, or any extension or revocation of the restriction, shall be published in the Federal Register.

Per 22 CFR 51.64 Special validation of passports for travel to restricted areas.

(a) A U.S. national may apply to the Department for a special validation of his or passport to permit its use for travel to, or use in, a restricted country or area. The application must be accompanied by evidence that the applicant falls within one of the categories in paragraph (c) of this section.

(b) The Department may grant a special validation if it determines that the validation is in the national interest of the United States.

(c) A special validation may be determined to be in the national interest if:

(1) The applicant is a professional reporter or journalist, the purpose of whose trip is to obtain, and make available to the public, information about the restricted area; or

(2) The applicant is a representative of the International Committee of the Red Cross or the American Red Cross traveling pursuant to an officially-sponsored Red Cross mission; or

(3) The applicant’s trip is justified by compelling humanitarian considerations; or

(4) The applicant’s request is otherwise in the national interest.

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Bureau of Diplomatic Security’s “Naughty List” — What’s That All About?

Posted: 3:48 am ET
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On August 8, we blogged about a woman who reported that she was raped and stalked by a supervisory Diplomatic Security agent assigned to one of the bureau’s field offices in the United States. The blogpost includes the State Department recently issued guidance on sexual assaults covering personnel and facilities in the United States (See A Woman Reported to Diplomatic Security That She Was Raped and Stalked by a DS Agent, So What Happened?).

We have since been been told that if we keep digging, we will “find much more” and that we should be looking for the “Naughty List” also known as the Adverse Action list.

When we asked what kind of numbers we’re talking about, we were informed that “the numbers are enough to say this is a systemic issue within the department.”  In the course of looking into this one case, we discovered a second case similar to the one we blogged about last week.  But the allegation was related to a different employee.

We’ve asked Diplomatic Security about the List but to-date we have not heard anything back.  We have two sources who confirmed the existence of the list.

What is the “Naught List”?

The list is formally called the Adverse Action list. We understand that this is a list of Diplomatic Security employees who are under investigation or declared “unfit for duty“.  Among the allegations we’ve got so far:

  • Investigations where agents were not disciplined but suspected of similar offenses
  • Investigations that languished on somebody’s desk for a decision
  • Agents curtail from post due to their “inappropriate behavior” and then just get reassigned somewhere else to become someone else’s problem (or nightmare if you are the victim).
  • Most agents are sent back to work with a slap on the wrist, regardless of how egregious the allegation against them were.
  • That this blog is only aware of two cases while “there are many more than that that exists.”
  • The system is highly flawed when you have coworkers/buddies investigating you.
  • That the Sexual Assault Policy is all smoke and mirrors without a mechanism to ensure the alleged perpetrator does not reoffend by discipline, removal, or treatment once its been established that the allegation has merit.

We’ve seen this movie before, haven’t we?

In October 2014, State/OIG published its Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security.  That report includes a case where the OIG found an appearance of undue influence and favoritism concerning a DS Regional Security Officer (RSO) posted overseas, who, in 2011, allegedly engaged in sexual misconduct and harassment.  DS commenced an internal investigation of those allegations in September 2011.  The report notes that at the time the investigation began, the RSO already had a long history of similar misconduct allegations dating back 10 years at seven other posts where he worked.

The report also notes that “notwithstanding the serious nature of the alleged misconduct, the Department never attempted to remove the RSO from Department work environments where the RSO could potentially harm other employees, an option available under the FAM.”  The OIG reports that in November 2013, based on evidence collected by DS and the Department’s Office of Civil Rights, the Department commenced termination of employment proceedings against the RSO. The RSO’s employment in the Department did not end until mid-2014, approximately 3 years after DS initially learned of the 2011 allegations.

Now three years after that employee’s departure, and six years after that 2011 allegations, here we are once again. Similar cases, different characters.

The questions we’ve been asked

Of which we have no answer — but we’re hoping that Diplomatic Security or the State Department would be asked by congressional overseers — are as follows:

√ Why would DS want to keep an agent or agents on that reflects so poorly on the Agency? Does DS not find this to be a liability?

√ Is Diplomatic Security (DS) prepared to deal with the aftermath if this agent continues to commit the same offenses that he has allegedly been accused of, especially if there is a track record for this agent?

√ There is an internal group that meets monthly to discuss these cases; they include representatives from at least six offices across bureaus, so what happened to these cases? Why are these actions tolerated?

√ If DS is so proactive based on its new Sexual Assault Policy, why are they not seeking a quicker timeline from investigation to discipline, to demonstrate to alleged victims that the agency does indeed take these allegations seriously?

We have to add a few questions of our own. Why do DS agents continue to investigate misconduct of other DS agents that they will likely serve with in the future, or that they may rely on for future assignments?

According to the Spring 2017 Report to Congress, the Bureau of Diplomatic Security (DS) has limited and continues to limit OIG’s permanent worldwide access to specific DS systems that OIG requires to conduct its oversight activities. Why? (see @StateDept Now Required to Report Allegations and Investigations to OIG Within 5 Days).

What are we going to see when we (or other reporters) FOIA this “Naughty List”?

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