Is Diplomatic Security, the State Department’s Law Enforcement Arm Trying to Break the Law?

Posted: 4:21 am ET
Updated: 10:37 am PST


On October 4, we wrote about DS agents fleeing Diplomatic Security in droves for the U.S. Marshals Service.  We can now report that approximately 70 agents applied to move from Diplomatic Security to the U.S. Marshals Service and some 30 agents have received conditional offers. A State Department official on background shared with us a short-list of DS agents leaving the bureau for the U.S. Marshals Service. The list was reportedly compiled sometime this summer at the direction of the Diplomatic Security Front Office.  There is now an allegation that Diplomatic Security had asked the U.S. Marshals Service to stop accepting DS agents transfers.  Anecdotal evidence appears to indicate that the list is also being used by DS/IP in pre-assignment deliberations.  This comes amidst reports from sources that DSS Director Bill Miller addressed over 100 DSS agents during a brief in preparation for the UN General Assembly (UNGA), and allegedly stated that any DS agent who leaves for the U.S. Marshals would not be allowed back into the agency.


DS to Departing Agents: Bye, You Can’t Come Back! Seriously?

On the warning delivered at the UNGA brief, a State Department official who talked to us on background said: “I’m not sure how many people in that audience realized that just uttering those words is a prohibited personnel practice under 5 USC § 2302(b).”   

So we went and look up the actual statute: 5 U.S. Code § 2302 – Prohibited personnel practices

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—

(4) deceive or willfully obstruct any person with respect to such person’s right to compete for employment;

(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;

(10) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;

Could the warning  — that any DSS agent who leaves for the U.S. Marshals would not be allowed back into the agency — influence an applicant for the USMS job to withdraw from competition for fear of retaliation?

If an agent in good standing departs the bureau for another federal job, and decides to come back later, can DS legally discriminate against that agent on the fact that he/she previously left the bureau for another agency?

Isn’t asking the U.S. Marshals Service to stop accepting DS agents transfers considered an obstruction to these agents’ right to compete for employment?

It looks like 5 U.S. Code § 2302 is quite clear about this. Interference with the hiring process of a federal employee is not permissible. Unless, Diplomatic Security is treating 5 U.S. Code § 2302 as a suggestion, and compliance as optional.

We understand that it has been a standard practice at Diplomatic Security that any agent who leaves in good standing is often welcomed back if they wished to return, with minor stipulations for reinstatement. We’re told that typically they would have three years to apply for reinstatement, subject to available vacancies, training requirements, and they may be required to take a hardship tour on the first new assignment upon reinstatement. We should note that 3 FAM 2130 actually says “Because recent familiarity with the Foreign Service is a valuable asset that distinguishes former members from new hires, candidates for reappointment may be considered if they have left the Service not longer than 5 years prior to the date on their reappointment request.”

If it is true — that the top law enforcement official at Diplomatic Security delivered a message not only contrary to practice but also against the law — wouldn’t this generate great concern and trepidation among the troops? Shouldn’t this alarm the top leadership at the State Department and in the Congress?

The State Department official on background told us that every year DS has some attrition to FBI, ATF, OIGs, etc.  but the fact that this lateral USMS announcement came out with the intent to hire experienced agents, at grade, and in significant numbers was “the perfect storm for the poor morale and lack of career control that plagues our mid-level agents.”  The conditional offers to the DS agents reportedly compose nearly one quarter of all offers sent out by the USMS.  We were told that no single agency is as widely represented in that offer pool as Diplomatic Security.

Which is probably embarrassing and all, as folks might start asking uncomfortable questions such as —what the heck is going on at Diplomatic Security these days?

Another source told us  this could have been a lot worse had the vacancy announcement lasted longer than 24 hours. The U.S. Marshals vacancy announcement actually opened on June 8, 2016 and closed on June 8, 2016.

So — we asked the Bureau about this reported bar the agents talk with a Q: PDAS reportedly told folks at UNGA that the departing agents would not be allowed to come back to DS. This sounds a lot like a retaliatory threat and would be a prohibited personnel practice under 5 USC § 2302(b).  After multiple emails and days of waiting, we finally got a non-response on October 12 from Diplomatic Security:

“Thank you for your query. We will have no additional comments on this.” 

Note that we have not received previous comments to these questions although we have sent multiple queries. Heaven knows we don’t expect perfection from our State Department but we do, however, expect it to be responsive and accountable for the reported actions of its top officials.

Look, the Bureau of Diplomatic Security (DS) is the security and law enforcement arm of the U.S. Department of State. Which means that an allegation that it is not following the law even in one area cannot stand with just “no comment.” It also cannot just be ignored. We got no clarification, no explanation, no denial.  Maybe State or DS will have comments for the Congressional Oversight folks?

The bureau has several responses we can think of:

#1.  Deny, deny, deny: hey, hey, this is a nothing-burger, go away.



#2. Admit in part/deny in part: there was an official brief, but this warning never happened; you’re barking up the wrong tree.



#3. Aggrieved defense: We are a law enforcement agency, of course we follow the law; are you nuts?



#4. Pride defense: We are the Diplomatic Security Service, we don’t make a habit of threatening anyone just because he/she wants to be like U.S. Marshal Sam Gerard!

#5. Ideal response not coming: We have no greater resource than our people. We have not, and we will not interfere with our employees right to compete for employment.


Next: Why did Diplomatic Security compile a short-list of DS agents leaving for the U.S. Marshals Service?



USDOJ Drops US Embassy Yemen Passport Revocation Case Sans Explanation

Posted: 2:16 am ET


On October 13, 2015, the U.S. District Court of the Northern District of California ordered the State Department to return the U.S. passport of Yemeni-American Mosed Shaye Omar which was revoked “based on the involuntary statement he provided at the U.S. Embassy in Sana’a on January 23, 2013.” (See Court orders @StateDept to return Yemeni-American’s improperly revoked U.S.passport). In February 2016, the U.S. District Court of the Northern District of California issued a cross motions for summary judgment: “This lawsuit presents the question of whether the United States government may revoke a United States citizen’s passport based solely on a purported “confession” that the citizen did not write, dictate, read, or have read to him, but did in fact sign. On the record before the Court, the answer is no.” (see more Omar v. Kerry, Passport Revocation “Arbitrary and Capricious,” New Hearing Ordered Within 60 Days).

On October 5, 2016, the United States Attorney for the Northern District of California asked to drop the case “without prejudice.”  We’re wondering how many more of these revocation cases would mow be dropped and sealed in court.

Via Politico:

Federal prosecutors — acting abruptly and without public explanation — have moved to drop a controversial criminal passport fraud case that critics alleged stemmed from coercive interrogations at the U.S. embassy in Yemen.

Earlier this year, a grand jury in San Francisco indicted Mosed Omar on passport fraud charges linked to a statement he signed during a 2012 visit to the U.S. diplomatic post in the unstable Middle Eastern nation.

Thursday afternoon, prosecutors submitted a brief court filing asking to drop the criminal case “without prejudice,” meaning it could be refiled. U.S. District Court Judge Charles Breyer will need to approve the dismissal of the case.

Spokesmen for the U.S. Attorney’s Office in San Francisco did not respond to messages seeking an explanation for the sudden move.
In response to a query Thursday from POLITICO, a spokesman for State Inspector General Steve Linick confirmed that an inquiry is underway into the allegations about improper passport revocations

“In June 2016, State OIG’s Office of Evaluations and Special Projects initiated a review of the Department’s processes of passport confiscations and revocations at the US Embassy Sanaa, Yemen,” spokesman Doug Welty said. He offered no additional details on the review.

If the case against Omar went forward, prosecutors might have been obligated to turn over to the defense some or all records of the IG review. That prospect may have contributed to the proposed dismissal, but there was no direct indication.

Read more:


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Oh Damn and Blast! @StateDept’s Administrative Leave Data Is One Hot Mess

Posted: 3:32 am ET


According to State/OIG, administrative leave is granted to employees as an authorized absence from duty without loss of pay or use of leave for various reasons unrelated to employee conduct, such as blood donations and weather-related closures. It may also be granted to employees who are under investigation for misconduct.  Senator Charles Grassley asked State/OIG for a description of the State Department’s administrative leave policies and the controls in place to prevent extensive use of administrative leave. On October 3, State/OIG posted online its report, Department of State Has Administrative Leave Policies but Lacks Complete and Accurate Data on the Use of Leave.

In response to the congressional request, the Office of Inspector General (OIG) evaluated the use of administrative leave at the Department of State (Department). The objectives of the evaluation were (1) to describe the Department’s administrative leave policies and (2) to determine the amount of administrative leave Department employees used from January 2011 to January 2015 and the circumstances surrounding the use of such leave.

State/OIG obtained data on administrative leave granted to Department employees from 2011 through 2015 from the Bureau of Human Resources (HR). For several of these employees, OIG also reviewed select records from the Time and Attendance Telecommunications Line (TATEL) system, the Department’s time and attendance tracking system.

Excerpt from OIG report:

  • At the Department of State, administrative leave can be authorized in 26 circumstances not related to conduct. Employees under investigation for misconduct may also be placed on administrative leave if their continued presence in the workplace may pose a threat to the employee or to others, may result in loss of or damage to government property, or may otherwise jeopardize legitimate government interests. Conduct- related administrative leave over 16 hours may only be granted by the Deputy Assistant Secretary of Human Resources.
  • OIG intended to determine the amount of administrative leave used by Department employees from January 2011 to January 2015 and the circumstances surrounding the use of such leave. However, the Department did not provide OIG with sufficient data to make these determinations. Consequently, OIG is unable to make any assessments about the Department’s use of administrative leave. OIG identified two key deficiencies in the data the Department provided: (1) the Department lacks a centralized source of information regarding the justification for why administrative leave is granted and (2) HR data on the hours of administrative leave used conflicts with data from individual employing offices.

Administrative Leave Not Related to Conduct: 26 Circumstances

  • There are 26 circumstances not related to conduct where administrative leave can be authorized. These circumstances include Federal holidays, voting, hazardous weather conditions, packing.unpacking, blood/organ donation, funerals, time zone dislocation adjustment period to name a few and several miscellaneous reasons like group dismissals for a reasonable period due to extreme climatic conditions; civil disturbance; transportation failure; breakdown of heating/cooling systems; natural disaster, etc.; jury duty; and absence due to an injury incurred while serving abroad and resulting from war, insurgency, mob violence or hostile action.  The amount of time authorized by the FAM and the FAH for administrative leave in these circumstances varies from one hour to one year.
State/HR’s Unreliable Data
  • In response to OIG’s request for information on administrative leave granted to Department employees, HR provided a report created by CGFS using TATEL data transferred to the payroll system. According to this data, the Department recorded 8.36 million hours of administrative leave for 33,205 employees from January 2011 to January 2015; however, their data was unreliable. Specifically, OIG identified two key deficiencies in the data that the Department provided. […] Currently, the only way to determine the justification for an employee’s administrative leave is to review the timesheet, ask the employee, or ask the employing bureau. The Department is currently updating its payroll systems, including modernization of its time and attendance systems. Once this project is completed, there will be more information available on specific uses of administrative leave. However, there is no expected completion date for the project.
  • OIG selected the 100 employees with the most hours of recorded administrative leave based on HR’s data and requested the justification from the applicable employing bureaus.17 According to the data provided by HR, these 100 employees recorded over 320,000 hours of administrative leave during the period under evaluation. However, after reviewing the information the bureaus provided, OIG found that administrative leave hours reported by HR were incorrect for 84 of these 100 employees (84 percent). Four of the employees were on work-related travel as opposed to on administrative leave. The other 80 employees were at work on regular duty between January 2011 and January 2015—with the exception of holidays, scheduled sick and annual leave, and weather-related closures—and their time and attendance records maintained by their employing bureau did not support the large amounts of administrative leave indicated by the HR data. OIG interviews with several employees and supervisors corroborated this information.
  • Although HR officials told OIG that timekeeping error was the most likely source of the discrepancies between the HR data and the information provided by the employing bureaus,19 reports from TATEL reviewed by OIG demonstrated that timekeeper error does not explain the entirety of the large balances of the administrative leave indicated by the HR data.20

Administrative Leave Related to Conduct

  • OPM guidance states that administrative leave should be used only as “an immediate, temporary solution to the problem of an employee who should be kept away from the worksite.”13 OPM also recommends that administrative leave “should not be used for an extended or indefinite period or on a recurring basis” and agencies should “consider other options prior to use of administrative leave.”
  • Department policies follow this guidance and contain several controls to ensure that administrative leave is used only as a temporary solution for employees who should be kept out of the workplace. The FAM defines conduct-related administrative leave as leave authorized “when an investigation, inquiry, or disciplinary action regarding the employee’s conduct is pending, has been requested, or will be requested within 2 workdays, and the continued presence of the employee in the workplace may pose a threat to the employee or to others, or may result in loss of, or damage to, U.S. government property, or may otherwise jeopardize legitimate U.S. Government interests
  • The Deputy Assistant Secretary told OIG that he and his staff carefully scrutinize each request to ensure that there is sufficient documentation that an employee’s continued presence in the workplace poses an actual problem. They also encourage the bureau to explore other alternatives and have, in some cases, referred the issue to the Office of Civil Rights, the Office of the Ombudsman, or the Bureau of Medical Services. The Deputy Assistant Secretary has disapproved administrative leave requests when alternatives exist or when there is insufficient documentation of a problem.
  • Even when HR approves a request for administrative leave, leave is only authorized for a 30 day maximum. According to HR, this incremental approach ensures that it will reevaluate the employee’s status periodically to determine whether administrative leave continues to be necessary. HR identified three main justifications to place an employee on administrative leave for over 16 hours:
  1. loss of security clearance
  2. medical-related issues
  3. violence or threatening conduct

63,000 Hours in a 4-Year Period

  • Despite these deficiencies, OIG found that more complete information exists for employees on conduct-related administrative leave. For example, sixteen of the 100 employees OIG reviewed had accurately recorded administrative leave and 15 of these were conduct-related cases. For each of these cases, HR confirmed that it had followed Department policy in granting administrative leave to ensure that the employee’s continued presence in the workplace posed a serious problem. These employees represented approximately 63,000 hours of administrative leave in the four-year period
  • According to HR, one of the reasons for these large balances is the difficulty in finding alternative work assignments or locations for employees who are on administrative leave because their security clearances have been suspended. The nature of the Department’s work limits the number of positions for which a security clearance is not required. Department offices may have unclassified work that employees can perform, but those employees would have to be escorted and monitored because most offices are secure spaces. Furthermore, employees who have had their clearances suspended may pose a risk even in unclassified areas.

The original report is posted here (PDF), or read in full below (click on the arrow at the lower right hand side of the box below to maximize view).

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@StateDept Updates Its Polygraph Policy: Are Results Shared For Security Clearance/Assignment Purposes?

Posted: 1:26 am ET


On September 1, 2016, the State Department updated its 12 FAM 250 policy on the use of the polygraph to examine Department employees (including employees on the General Schedule, the Foreign Service, on Personal Service Contracts, Limited NonCareer Appointees, and Locally Employed Staff).  

Per 12 FAM 251.2-2, the Office of Investigations and Counterintelligence (DS/DO/ICI) Counterterrorism Vetting Unit (CCV) administers the polygraph program and is responsible for hiring polygraph examiners, responding to requests for polygraph support, deploying polygraph examiners, and maintaining relevant records.

The update includes the following:
  • Streamlines the polygraph examination process by removing a requirement to seek pre-approval before a DS or OIG agent can ask an employee if s/he is willing to submit to a polygraph.
  • Authorizes a DS agent or Department OIG investigator to alert an employee or contractor, currently subject to a criminal, personnel security, or counterintelligence investigation, that s/he has the option to undergo an exculpatory polygraph examination, rather than limiting exculpatory polygraphs to cases where it is initiated by the individual under investigation.
  • Allow polygraphs of Department employees detailed to federal agencies (in addition to the NSA, CIA, and DIA) when the relevant agency requires a polygraph to be detailed to the position. Polygraphs of employees detailed to agencies other than the NSA, CIA, or DIA will be considered on a case-by-case basis and will require approval from the Under Secretary for Management.
  • Limits the scope of polygraph examinations of Department detailees to other federal agencies to counterintelligence topics for all detailees.
  • Formalize existing processes for polygraph examination of certain locally employed staff, in accordance with the approvals specified in the polygraph policy

Back in May 2015, we questioned the use of the CIA’s polygraph exams of State Department employees (see AFSA Elections: What’s Missing This Campaign Season? Fire, Ice and Some Spirited Debates, Please).

Do you know that Department employees who take the CIA’s polygraph examination for detail assignments will have the  results of their polygraph provided to DS and HR for security  clearance and assignment purposes?  A source told us that “In and of itself, it does no  harm if the CIA retains them for its clearance purposes, but it can  have an unanticipated negative impact when indiscriminately released  by the CIA to third parties, like DS and HR, who use them in violation of the CIA’s restrictions to the Department  and assurances to the examinees.”  If this affects only a fraction of the Foreign Service, is that an excuse not to do anything about it, or at a minimum, provide an alert to employees contemplating these detail assignments?

We’ve recently discovered a newly posted grievance case dated March 2010. We don’t know why this is currently on display upfront on  In any case, this is related to the subject of polygraph examination.

On June 24, 2009, grievant, a retired Senior Foreign Service Officer, appealed to the FS Grievance Board the State Department’s (Department) denial of his grievance with respect to the use of the results of a polygraph exam he took in 2003 in conjunction with a detail to the Central Intelligence Agency (CIA). Grievant claims the improper handling and use of the results of that exam violated the Department’s own regulations (12 FAM 250) and resulted in his having been denied a Presidential Appointment as a Chief of Mission (Ambassador).  The ROP includes some interesting interrogatories:

#1: Has the Department ever obtained a Department employee’s polygraph examination results from the CIA for a personnel security background investigation based on the employee’s SF-86 signed release? If so, please describe the circumstances under which this would occur.

The Department objected to answering this interrogatory on the grounds that is was overbroad, immaterial, and irrelevant.

IR #6e for Diplomatic Security Case Officer for the second background investigation: Have you ever requested an employee’s polygraph results from the CIA before? If so, under what circumstances‘?

The Department found this interrogatory overbroad, irrelevant, and immaterial.

Ruling on IR #6e: Under the more ample concept of relevance applied at the discovery stage, the Board finds that the information requested is sufficiently relevant to grievant’s claims or likely to lead to the discovery of information relevant to such claims to compel discovery. The information requested may help to clarify the Department’s practice in applying the regulations governing the use of polygraphs that are issue in this case. We do not find the request to impose such a burden on the Department as to outweigh the potential usefulness of the information requested. The Department is directed to respond.

IR # 7h for Diplomatic Security: Does DS routinely request and receive polygraph examination results on all Department employees who have taken polygraph examinations at the CIA as part of their routine background security investigations?

The Department objected to this interrogatory as irrelevant and immaterial in all respects.

The Department was directed to respond to grievant’s Interrogatories 6e and 7h not later than 20 days after receipt of the order but we have been unable to find the decision on this case.


On June 24, 2009, grievant filed a grievance appeal, claiming improper use by the Department (Department, agency) of the results of a polygraph examination he had taken in conjunction with a detail from the Department to the Central Intelligence Agency (CIA).  The grievant makes several specific claims:

1) that the CIA provided the results of the polygraph to a Diplomatic Security (DS) agent in the Department, in violation of Department regulations and CIA policy;
2) that the Department requested and/or received the polygraph results from the CIA, in violation of its own regulations;
3) that the Department improperly used the polygraph results in the course of security update investigations; and
4) that the Department improperly provided information drawn from the polygraph to the Director General (DG), which resulted in the DG withdrawing grievant’s nomination to be a chief of mission. The FSGB Board finds that it has jurisdiction over the claims presented by the grievant.



The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief

Posted: 2:02 am ET
Updated: Sept 24, 4:08 pm PST | This piece was edited to use the more neutral word “report” instead of “allegation.” The guide on reporting sexual violence is teaching us that the use of the word “allegation” reinforces the disbelief that a crime actually occurred.


Last month, we received an anonymous allegation report of sexual assaults in the Foreign Service. It is alleged We were told that DS and MED “hide” the assaults “under pretense” that it is “the victim’s wish to keep it a secret.”

No specific case was cited only that there were incidents in Iraq and Afghanistan.  We were also asked if we know what is the reporting process for sexual assault in the Foreign Service.

We told our correspondent that we will look into the reporting process because we actually had no idea. We were then warned: “On the off chance you get a response, it will probably be something along the lines of, “any victim of crime under chief of mission authority should report to their RSO; the Department takes such allegations extremely seriously.” 


Looking at public records

We started looking at publicly available records. We found one assault in 2009 which is only publicly available becase the case became an EEOC case (see Sexual Assault at a State Dept-Leased Apartment: If This Isn’t Abysmal Failure, What Is It?). In 2011, there was the case of a former CIA station chief to Algeria who received 65 months in jail for sexual assault on embassy property. In 2012, there was a case of an FS couple accused of slavery and rape of a housekeeper, In 2013, there was an FS specialist who was sentenced to 5 years in prison; the case was about the sex abuse of an adopted child. Also in 2013, CBS News reported on  several allegations including one about a regional security officer (RSO) in Lebanon who “engaged in sexual assaults” of the local guards.  A subsequent OIG investigation indicates that the alleged sexual misconduct of this security official spanned 10 years and 7 posts.

These are cases that we’ve written in this blog after they’ve become public.

We’ve poured over the Foreign Affairs Manual (FAM) and Foreign Affairs Handbook (FAH) and have reached out to the State Department and other contacts within its orbit to help us find the specific guidance for the reporting process on sexual assault. We have not been successful. For the record, it is not/not 3 FAM 1525, not 3 FAM 4428, not 3 FAM 1800 and not 7 FAM 1940.


Questions for the State Department

We sent some questions to the State Department, the blue italics below is the response from an agency’s spokesperson.

We asked: How does the State Department/Diplomatic Security handle sexual assault among members of the Foreign Service community overseas? The only thing I can find in the FAM is sexual assault relating to private American citizens, and services via the Consular Section.  

–What is the reporting process if the victim/perpetrator is under chief of mission authority?

–What is the reporting process if the alleged perpetrator is from the Regional Security Office or a senior Foreign Service official who oversees the RSO?

–Where is the FAM/FAH guidance for sexual assault?

The State Department response: “The State Department/Diplomatic Security handles sexual assault among members of the foreign service community overseas by adhering to Department guidelines. These guidelines are made available to all members of the foreign service community in Department cables and in the FAM. The Department guidelines outlined in these documents address the contingencies included in your questions.”

No specific cables were cited.  However, the FAM cited by the State Department in its response above is 1 FAM 260, specifically, 1 FAM 262.4-5 which only notes that the Office of Special Investigation (DS/DO/OSI) within Diplomatic Security is tasked with investigating extraterritorial criminal investigations including assault, sexual assault, domestic violence, etc. Go ahead and read it.  It does not/does not include nor describe the reporting process.

We asked: If a sexual assault occurs overseas to an employee/family member of USG employees, who are the officials informed about the incident?

–How is the information transmitted? Telegram, telephone, email?

–Is the communication done via secure or encrypted channels?

In response to the above question, a State Department’s spokesman said: “The reporting process calls for the regional security officer to contact the State Department’s Office of Special Investigations. This office is outside the regional security officer’s chain of command.”

The response is only partly responsive and only names the RSO and DS/OSI.  Even if DS/OSI is outside the RSO’s chain of command, this tells us that an alleged victim overseas has to go through post’s Regional Security Office; the RSO in that office must then contact DS/OSI located in Washington, D.C. for an investigation to be initiated.

You probably can already guess our next question.

What if the perpetrator is from the security office or the Front Office who oversees the RSO? How would that work? Also both the RSO overseas and DS/OSI back in DC are part of the Bureau of Diplomatic Security. When we made these follow-up questions, the State Department simply repeated its original response:  “The reporting process calls for the regional security officer to contact the State Department’s Office of Special Investigations (OSI). This office is outside the regional security officer’s chain of command.  On your question on the Fam (sic): Sexual assault is a crime investigated by the Office of Special Investigations as outlined in 1 FAM 262.4-5.”

This is a disturbing response particularly in light of a previous CBS News report alleging that a regional security officer sexually assaulted local guards under his supervision and was accused of similar assaults in Baghdad, Khartoum and Monrovia. Okay, never mind CBS News, but the OIG investigation indicates that the same security officer’s alleged sexual misconduct spanned 10 years and 7 posts.  How many local guards were assaulted within those 10 years and in those 7 posts?  Perhaps it doesn’t or didn’t matter because it happened so long ago. Or it is because the alleged victims were non-U.S. citizens?

The other part of the question on how reports are transmitted is equally important. Are they sent via unclassified email? The perpetrator could be easily tipped off, and that potentially places the safety of the victim in jeopardy.

The third question we asked is a twofer. We wanted to know the statistics on sexual assault in the Foreign Service, specifically in Afghanistan and Iraq since 2003. The second part of our question is overall statistics on sexual assault in the Foreign Service worldwide, during the last 10 years. Note that we are not asking for names. We’re asking for numbers. We’re only asking for an accounting of sexual assault reports reported allegations since the invasion of Iraq in 2003 to the present, and the worldwide number of allegations reports spanning over 280 overseas posts in the last 10 years. Surely those are available?

This is the State Department’s official response:

“The Office of Special Investigations receives and catalogues allegations and complaints. Allegations are neither categorized by location nor by alleged offense.”

Wh–aat? We actually fell off the darn chair when we read the above response.  If the allegations and complaints are not catalogued by location or alleged offense, how would the State Department  know if there is a trend, or a red flag they should be aware of?

Wouldn’t this constitute willful ignorance?

In our follow-up question, we asked who is responsible for the care and support of a Foreign Service victim? This is the response from a State Department spokesperson:

“The Department takes seriously the safety and well-being of its employees and their family members. The post health unit, Employee Consultation Services and the Regional psychiatrist are all available to assist a victim of sexual assault. MED would also assist if, for example, a medical evacuation to a third country or the United States is required. 

Generally MED does not provide direct clinical services in the States but has extensive resources to provide referrals for ongoing treatment.

Additionally, the Victim’s Resource Advocacy Program (VRAP) is available to provide advocacy services so the individual understands the judicial process and has support lines, plus resources applicable to the person’s goals to rebuild and heal.”


In a follow-on response, the State Department cites the Victim’s Resource Advocacy Program (VRAP). We had to dig around the net to see what is VRAP.  According to the State Department’s outline on divorce:

VRAP was created in November 2010 by the Bureau of Diplomatic Security (DS) “to empower those who have been victimized by crimes that are under DS investigation. A representative of this office also sits on the Department’s Family Advocacy Committee (chaired by the Director of MED/MHS), based in Washington DC. The VRAP is committed to assisting aggrieved individuals in overcoming difficulties that result from victimization by providing resources to deal with the realities that follow traumatic experiences and an understanding of the judicial processes surrounding criminal offenses. Contact VRAP at”

Okay, but.  All that still does not give us a clear idea on the procedure for reporting sexual assault in the Foreign Service, does it? And most of the info is not even codified in the FAM or the FAH.

What happens in the space between “calling the RSO” and VRAP “empowering” those victimized by crimes — remains a black hole. It is not clear what kind of support or advocacy services and resources are provided to victims of sexual assault. We’ve asked; we haven’t heard anything back.

Since we could not find any guidance from the State Department, we went and look at what the reporting procedure is like at USAID, the Department of Defense, and Peace Corps.  As of this writing, we’ve received an acknowledgment from USAID but have not received an answer to our inquiry. Below is a quick summary for DOD and the Peace Corps:


DOD Sexual Assault Reporting Guidance

You may or may not know this but the Department of Defense actually has a separate website for sexual assault which makes it clear that sexual assault is a crime. Defined “as intentional sexual contact,” sexual assault is characterized by “use of force, threats, intimidation or abuse of authority, or when the victim does not or cannot consent.” It explains that sexual assault includes rape, forcible sodomy (oral or anal sex), and other unwanted sexual contact that is aggravated, abusive, or wrongful (including unwanted and inappropriate sexual contact) or attempts to commits these acts. It also notes the difference between sexual assault and sexual harassment. Its website is not just an explainer, it also provides information for assault victims:

If I am sexually assaulted, what should I do?
First, get to a safe place. If you are in need of urgent medical attention, call 911. If you are not injured, you still need medical assistance to protect your health. The medical treatment facility (MTF) offers you a safe and caring environment. To protect evidence, it is important that you do not shower, brush your teeth, put on make-up, eat, drink, or change your clothes until advised to do so. You or the MTF may report the crime to law enforcement, criminal investigation agencies, or to your chain of command. If you feel uncomfortable reporting the crime, consider calling a confidential counseling resource available to you.

Reporting Options: 
Restricted | Sexual assault victims who want to confidentially disclose a sexual assault without triggering an official investigation can contact a SARC/SHARP Specialist, VA/SHARP Specialist, or a healthcare provider. By filing a restricted report with a SARC/SHARP Specialist, VA/SHARP Specialist, or a healthcare provider, a victim can disclose the sexual assault without triggering an official investigation AND receive medical treatment, advocacy services, legal assistance, and counseling.

Unrestricted | This option is for victims of sexual assault who desire medical treatment, counseling, legal assistance, SARC/SHARP Specialist and VA/SHARP Specialist assistance, and an official investigation of the crime. When selecting unrestricted reporting, you may report the incident to the SARC/SHARP Specialist or VA/SHARP Specialist, request healthcare providers to notify law enforcement, contact law enforcement yourself, or use current reporting channels, e.g., chain of command. Upon notification of a reported sexual assault, the SARC/SHARP Specialist will immediately assign a VA/SHARP Specialist. You will also be advised of your right to access to legal assistance that is separate from prosecution resources. At the victim’s discretion/request, the healthcare provider shall conduct a sexual assault forensic examination (SAFE), which may include the collection of evidence. Details regarding the incident will be limited to only those personnel who have a legitimate need to know.

Peace Corps Sexual Assault Reporting Guidance

The Peace Corps says it provides “sexual assault risk-reduction and response training to both Volunteers and staff. Volunteers worldwide learn risk-reduction strategies such as bystander intervention training, and each post has two sexual assault response liaisons trained to directly assist Volunteers who are victims of sexual assault throughout the in-country response process.” It also provides around the clock, anonymous sexual assault hotline accessible to Volunteers by phone, text, or online chat that is staffed by external crisis counselors at

In addition, it provides volunteers who experience sexual assault the option to report the incident as restricted or as standard reporting. This is similar to DOD’s:

Restricted reporting limits the number of staff members with access to information about an assault to only those involved in providing support services requested by the Volunteer. This gives Volunteers access to critical support services while protecting their privacy and confidentiality, and allows the Peace Corps to provide support services to Volunteers who otherwise may not seek support.

Standard reporting provides Volunteers with the same support services along with the opportunity to initiate an official investigation, while maintaining confidentiality.

There’s no 911 in the Foreign Service

For Foreign Service employees and family members assigned overseas, there is no 911 to call. You get in trouble overseas, you call the security office of the embassy. If you are in a small post, you may have to deal with another officer who is assigned collateral duty as post security officer.  Post may or may not have a health unit or a regional medical officer. If there is a health unit, it may or may not be equipped or trained with gathering forensic evidence.  Above all, if you’re overseas as part of the Foreign Service, you are under chief of mission authority. What you do, what you say, where you live — basically, your life 24/7 is governed by federal regulations and the decision of the Front Office.


So to the question — if I am sexually assaulted, what should I do?

The State Department says that the Foreign Affairs Manual (FAM) and associated Foreign Affairs Handbooks (FAHs) are a single, comprehensive, and authoritative source for the Department’s organization structures, policies, and procedures that govern the operations of the State Department, the Foreign Service and, when applicable, other federal agencies. The FAM (generally policy) and the FAHs (generally procedures) together convey codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive and Department mandates.

Every time the FAM is updated, a Change Transmittal documents it.  All transmittals includes the following reminder: Officers are reminded that Department-issued materials not codified in the Foreign Affairs Manual or its supplemental Foreign Affairs Handbook series generally have no regulatory validity (see 2 FAM 1115.2).

Since there is no FAM or FAH specifically addressing sexual assault, we end up with a pretty uncomfortable question: Is the State Department saying that sexual assault does not happen in the Foreign Service — that’s why there’s no regs covering it?

If it’s not that, then — what is the reason sexual assault procedure is absent from its single, comprehensive, and authoritative source of policies, and procedures?



Sexual Assault Related posts:

Sexual Harassment related posts:



Sexual Assault at a State Dept-Leased Apartment: If This Isn’t Abysmal Failure, What Is It?

Posted: 7:01 pm ET


This is not a new case but we have not been aware of this case until we started digging around.  In 2009, a Policy Analyst with the Department of Homeland Security (DHS) worked as a liaison to the State Department (the Agency).

According to EEOC records, in and around May 2009, the DHS employee (Complainant) was on a tour of duty in Germany, working as an Agency employee. Complainant asserts that, on May 10, 2009, while visiting a friend outside of duty hours, she was sexually assaulted by an individual who, at the time, was a State Department contractor. The incident took place in a State Department-leased apartment in Prague, Czech Republic. The EEOC decision dated June 16, 2011 notes that the accused individual subsequently became a permanent employee of the Agency.

The complainant had to make several attempts to report the sexual assault. She was eventually directed to contact the EEO office at DHS, who took no action, and refused to take her case because the attacker was not a DHS employee. She was sent to the Violent Crimes Unit of Diplomatic Security, who investigated the case and referred it to DOJ for prosecution. DOJ took no action. A DS investigator advised her to contact State/OCR. She interacted with that office for 6-7 months but these “activities focused primarily on resolving the matter as opposed to exploring or clarifying the extent of any EEO implications” according to the EEOC.

Whiskey Tango Foxtrot!

Then State/OCR dismissed the case for failure to state a claim and untimely contact with an EEO counselor.

Sexual assault is a crime punishable by law. Sexual assault and sexual harassment are not the same.  Sexual assault describes the catch-all crime that encompasses unwanted sexual touching of many kinds, with links to state penal code and federal law on related crimes.  It includes rape, forcible sodomy (oral or anal sex), and other unwanted sexual contact that is aggravated, abusive, or wrongful (including unwanted and inappropriate sexual contact) or attempts to commits these acts.

FindLaw notes that Federal law directs judges to examine a number of factors, including the defendant’s criminal history and his or her acceptance of responsibility, when setting a punishment. The federal law criminalizing sexual assault sets a maximum sentence of 20 years in prison, and also provides for fines. In addition, federal law provides that those convicted of sexual assault must compensate their victims for any expenses directly related to the crime. This can include costs for medical care, physical or occupational therapy, attorney’s fees, and other related expenses.

But first, you’ve got to investigate, charge the perpetrator and find him or her guilty.

The complainant here alleged that she was sexually assaulted in USG-leased housing, why did people send her to an Equal Employment Opportunity office for godsakes? Why did DOJ take no action? If there was probable cause for Diplomatic Security to refer this case to DOJ for prosecution, how did the contractor become a State Department employee? This incident happened in 2009, the victim did not get to file her case until a year later, and the EEOC did not make a decision until 2011. At some time during this lengthy process, the victim resigned from federal service. The unnamed alleged attacker may still be in the bureaucracy.

Sure, we could call this abysmal systems failure.

But just about every part of this process was deplorably bad. And the people who worked in the system made it so.

Excerpts below from the EEOC decision (we underlined some parts for emphasis):

Reporting sexual assault — Whiskey Tango Foxtrot!

In and around May 2009, Complainant was on a tour of duty in Germany, working as an Agency employee. Complainant asserts that, on May 10, 2009, while visiting a friend outside of duty hours, she was sexually assaulted by an individual who, at the time, was an Agency contractor.1 This individual subsequently became a permanent employee of the Agency. The record does not indicate in what capacity he was employed or the date his employment began.

After making several attempts to report the sexual assault and being redirected to various components in DHS, Complainant was eventually directed to contact DHS’ EEO office, which she did on June 1, 2009. The record suggests that DHS engaged in limited EEO counseling, but took no action to process Complainant’s allegations as a potential EEO complaint.  Instead, approximately a week after her June 1 contact, DHS effectively dismissed Complainant from the EEO process, concluding that it could not entertain her issues because the alleged attacker was not its employee.  DHS then advised Complainant to contact the Agency, which she did on June 11, 2009.

Soon thereafter, a criminal investigation was initiated by the Violent Crimes Unit of the Agency’s Office of Diplomatic Security. Complainant was cautioned to refrain from discussing the May 10 incident until the investigation was complete. In October 2009, the Agency referred the matter to the Department of Justice (DOJ) for prosecution upon finding probable cause to believe Complainant’s allegations were true. For reasons not reflected in the record, DOJ took no action.

On October 23, 2009, pursuant to the advice of the Violent Crimes Unit investigator, Complainant contacted the Agency’s Office of Civil Rights (OCR). During the next six or seven months, she interacted with various OCR representatives whose activities focused primarily on resolving the matter as opposed to exploring or clarifying the extent of any EEO implications.  On May 24, 2010, Complainant filed a sparsely worded formal complaint which contained a single averment of discrimination relating to the sexual assault and several items of requested relief.

In a September 28, 2010 FAD, the Agency dismissed the May 24 complaint upon finding that it failed to state a claim and that Complainant failed to timely contact an EEO counselor.  The instant appeal followed. We note that Complainant is pro se.

Contentions on appeal

In a statement accompanying her appeal, Complainant argues that the chronology of relevant events belies the Agency’s finding that she was untimely in initiating EEO counseling. She also appears to raise questions regarding the trustworthiness of the FAD (final agency decision) by noting several errors of fact reflected in the Agency’s reasoning. The Agency filed no response.

EEOC reversed the State Department’s dismissal

The Agency does not dispute that the alleged assault occurred on May 10, 2009.  Nor does it dispute that Complainant first sought counseling on June 1, 2009 with DHS. The Agency’s finding that Complainant was untimely is premised on the apparent view that her DHS contact had no significance under subsection 105(a)(1). We conclude that it did. To rule otherwise would require the Commission to ignore the plain wording of the subsection, which provides only that aggrieved individuals contact “a” Counselor within the stated time. There is no requirement that the Counselor be from the agency that receives the complaint.3  In this case, Complainant logically initiated contact with a Counselor in the agency where she was employed.

It is self-evident that June 1, 2009 is within 45 days of May 10, 2009. We, therefore, find that Complainant’s counseling contact was timely and reverse the Agency’s dismissal on this ground.

Alleged perpetrator went from contractor to employee

The Commission’s regulation at 29 C.F.R. § 1614.107(a)(1) authorizes an agency to dismiss a complaint that fails to state a claim that can be remedied through the EEO process.  In its FAD, the Agency concluded that Complainant failed to assert a remediable claim because neither she nor her alleged attacker was functioning in work status when the “event in question” occurred. The non-work status of Complainant and her alleged attacker, on May 10, 2009,  would likely be dispositive of this appeal were we to find that the “matter” in question, when the complaint was filed, was clearly confined to the alleged assault.4 Such a finding cannot be made, however, on the basis of the current record.

We are mindful, initially, that the counseling process was unduly erratic and prolonged in this case. Indeed, more than a year had elapsed before Complainant was provided the opportunity to file a formal complaint. Several events occurred, in the interim, which are potentially relevant to the sufficiency of her complaint.

For instance, by the time the complaint was filed, there had been a change in status of the individual the Agency believed had “probably” assaulted Complainant. He went from being an Agency contractor to an Agency employee. Although it is not clear whether, as a DHS “liaison” to the Agency, Complainant had (or would have)  been required to work with (or for) this individual, we find it significant that, at some point prior to filing the complaint, Complainant resigned from federal service. The record suggests that the resignation was under duress and may have related to a requirement that she refrain from discussing her ordeal.  See Complaint File, April 21, 2010 email from Complainant to named Agency official (“I don’t want to be forced to keep [the attacker’s] secret when I’m the one being hurt and losing.”)

At this juncture, we do not know how (if at all) Complainant’s employment may have been affected by the May 2009 incident. The record is wholly undeveloped in this regard. However, we can say that, if the Agency had directed Complainant to remain silent in order to protect the alleged attacker or facilitate his employment, it could hardly be found (as the Agency did) that the incident did not “involve” any term or condition of her employment. Without suggesting that the known facts in this case, by necessity, implicate a potential claim of “sexual harassment,” it is relevant to note that the Commission has recognized that harassment which occurs outside of work may state a claim when the effect of the off-duty incident creates an “intolerable influence on the employee’s working conditions.” Kokangul v. Department of the Army, EEOC Appeal No. 01A61380 (July 6, 2006)

Deficient EEO processing — looking at you S/OCR

We make no finding with regard to the existence of a viable discrimination claim arising from the May 2009 incident. We merely find that deficiencies in processing, as well as the record, render it impossible to determine the full measure of the concerns Complainant sought to pursue through the EEO process.  The quality of the EEO counseling, provided by the Agency and DHS, left much to be desired in terms of ensuring the record would be adequate to assess the sufficiency of any formal complaint that Complainant might file.

Incomplete files

It is unclear, for example, why the Complaint File does not include the Violent Crime Unit’s report, given its obvious relevance to the matter that prompted Complainant to seek EEO counseling. Also inexplicably missing from the record is a “statement” Complainant apparently prepared during the course of the counseling process.6 The absence of this and other information renders the record insufficient to determine the nature of any claim Complainant may have sought to assert.

Should have – what, whose contractor?

Finally, we note that the Agency also relied on 29 C.F.R. § 1614.106(a) as a ground for dismissing the complaint, finding that Complainant should have filed it against DHS because the alleged attacker was a DHS contractor.7 This ground is also found to be without merit. There is nothing in the record that contradicts the statements made by Complainant and others that her attacker was a contractor (and later an employee) of the Agency—not DHS.


The complainant here would have been under chief of mission authority in Germany where she was assigned a tour of duty. We don’t know what would have been her status in the Czech Republic where the alleged attack took place. But the incident occurred in a State Department-leased apartment. So we expect that the State Department would have been the investigating authority.  This case happened in 2009 and decided by the EEOC in 2011.  This got us thinking on what procedure is in place for reporting sexual assault in the Foreign Service.

We’ve spent the last several days trying to locate the Foreign Service Manual or Foreign Affairs Handbook for the procedure in reporting sexual assault in the Foreign Service, but have been unsuccessful, so far. We were able to find 7 FAM 1940  REPORTING CRIME VICTIM CASES, but this section only apply to non-official, private Americans and the reporting covers only crimes reported to a consular officers abroad by victims, their families or by the host country government and which result in a consular officer or officers providing substantial assistance to the victim.

We’ve asked the State Department for its sexual assault regs and guidance; we’ve received a response but it deserves a separate post.



@StateDept Updates Policy Guidance on Special Rest and Recuperation (SR&R) Travel

Posted: 12:12 am ET


On August 10, 2016, the State Department updated its policy guidance on Special Rest and Recuperation (SR&R) for the Foreign Service at State, USAID, Commerce, Agriculture and BBG.  SR&R is discretionary R&R travel authorized by the Under Secretary for Management.  These are additional R&R trips for posts already designated for R&R trips as specified in 3 FAM 3725.2, or for a post that does not normally qualify for an R&R but experiences extraordinary circumstances that warrant a one-time R&R.  Note that due to their immediate proximity to the United States, Mexico border posts are not eligible for SR&R (or R&R) according to the Foreign Affairs Manual.

3 FAM 3727.1 Special Rest and Recuperation (SR&R)
(CT:PER-828; 08-10-2016)
(Uniform State/USAID/Commerce/Agriculture/BBG)
(Applies to Foreign Service Employees only)

a. In extraordinary circumstances, the Under Secretary for Management (M), acting on behalf of the Secretary, may authorize additional R&R trips for posts already designated for R&R trips as specified in 3 FAM 3725.2, or for a post that does not normally qualify for an R&R but experiences extraordinary circumstances that warrant a one-time R&R. This discretionary R&R travel authorized by M is known as Special R&R travel (SR&R).

(1) With the exception of Mexico border posts, any post that is in unaccompanied status or has a combined Post Differential and Danger Pay rate of 35 percent will automatically qualify for one SR&R.

(2) If a post does not automatically qualify for one SR&R or the post automatically qualifies for one SR&R but would like to request additional SR&Rs, that post must seek authorization by having the appropriate regional bureau executive director send a memorandum to the Director of the Office of Allowances (A/OPR/ALS). The memorandum must include a clear justification (in 250 words or less) for any requested SR&R including specific extraordinary conditions of hardship which exist at post. The Director of A/OPR/ALS will convene a nine-member committeewhich shall include one representative from each regional bureau, HR, M/PRI, and Allowancesto review all SR&R requests and send recommendations to M for final approval. In order to recommend an SR&R to M, seven of the nine committee members must vote in favor of the SR&R. A/OPR/ALS will notify all requesting offices of Ms determination and update Special R&R information in the annual bidding tool. One-year Priority Staffing Posts (PSP) and posts with Service Recognition Packages (SRP) fall outside the purview of this process.

(3) Authorization for Special R&R expires annually. Requests for new, multiple, or continuation of Special R&R travel must be resubmitted to regional bureaus by memorandum no later than May 15 each year.

(4) The SR&R qualification process was changed in August 2016. For posts that will lose one or more SR&Rs under the new process, personnel who were serving at or paneled to those posts during the 2016-2017 winter cycle will be grandfathered in under the old system for the length of their tour. This means that those individuals will be awarded the SR&Rs that they would have been given under the system immediately prior to the change in August 2016.

c. The Under Secretary for Management may designate in writing a post for a SR&R where the tour of duty is not traditional. A Special R&R may be warranted because of extreme danger, unaccompanied post status, severely substandard living conditions, extreme isolation, or other unusual conditions. Because of their immediate proximity to the United States, Mexico border posts are not eligible for SR&R (or R&R).

d. Clearances for initiating and terminating a SR&R must be obtained by the requesting regional bureau from other foreign affairs agencies when such agencies have personnel at post. (For USAID, contact the regional bureau AMS staff.)

e. When approval for a SR&R is requested from M, the regional bureau executive director shall recommend whether all employees currently at post or employees arriving at post will be eligible for it. For example, employees on TDY; employees whose departure from post is imminent; or new employees who will not experience the same degree of hardship that current employees have experienced, might be excluded. If M approves the SR&R, the post shall be notified of any such limitations by the regional bureau.

3 FAM 3727.2 Eligibility and Tour of Duty
(CT:PER-828; 08-10-2016)
(Uniform State/USAID/Commerce/Agriculture/BBG)
(Applies to Foreign Service Employees only)

a. The Departments policy for time spent at post for Special R&Rs differs from that of regular R&Rs discussed in 3 FAM 3722, paragraph a. For example, SR&Rs may be authorized for posts with a tour of duty of less than 2 years. In addition, the employee is not required to complete the requirements for the regular R&R in order to be eligible for the Special R&R. For:

Tour of duty of less than 2 years: An employee must be able to complete a minimum of 12 months at post to be eligible for the Special R&R. Generally, a post with a tour of duty of less than 2 years will not be authorized more than one Special R&R.

Tour of duty of 2 years: Employees at posts with 2-year tours of duty (including a split 4-year tour of duty) must be able to complete a minimum of 12 months at post to be eligible for a Special R&R. Generally, no more than two R&R trips (Special and/or regular) will be authorized for posts with a tour of duty of 2 years.

Tour of duty of 3 years: Employees, whose assignments are extended to 3 years at posts that have been granted both Special and regular R&Rs, may receive an additional R&R trip for the extra year of service. Generally, no more than three R&R (Special and regular) trips will be authorized for posts with a tour of duty of 3 years.

b. The Department policy for time spent at post for Special R&Rs differs further in the case of employees serving at certain posts specifically designated by the Director General for home leave after completion of 12 months of continuous service abroad. Employees in such a category should consult applicable service recognition packages and post policies to determine eligibility for R&R travel.

c. The Bureau of Human Resources, Office of Employee Relations, Employee Programs Division, is available for policy guidance.

Read in full:  3 FAM 3720 REST AND RECUPERATION (R&R) TRAVEL (changes are in magenta).


Related items:


3 FAH-1 Exhibit H-3722(1)  Posts and Designated Relief Areas For R&R Travel




Snapshot: ARB Recommendations — Procedural Action and Responsibilities

Posted: 1:26 am ET


Via 12 FAH 12 Exhibit H-013 | M/PRI 12-08-2014

Per 12 FAH 12, following receipt of an Accountability Review Board’s report, the Secretary will determine what actions should be taken with respect to the recommendations.  The Deputy Secretary of State for Management and Resources will oversee the Department’s progress on ARB implementation. The Under Secretary for Management (M), in coordination with the Under Secretary for Political Affairs (P), is responsible for implementation of ARB recommendations.  On behalf of the Secretary and other Department principals, the Office of Management Policy, Rightsizing and Innovation (M/PRI) will coordinate and track recommendations and manage the overall implementation process. 

Screen Shot


Related item:



McDonnell v. United States: OGE Issues Advisory on Supreme Court Decision to Ethics Officials

Posted: 12:09 am ET

Last month, the Office of Government Ethics (OGE) issued a legal advisory related to the SCOTUS ruling on bribery charges against former Virginia Governor Robert F. McDonnell.  To recap, the former governor, and his wife, Maureen McDonnell, were indicted by the Federal Government on “honest services fraud and Hobbs Act extortion charges related to their acceptance of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.”  According to court filings, to convict the McDonnells, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts.  The case was argued in the Supreme Court in April 2016, and SCOTUS decided on the case in June 2016 (see SCOTUS case here in PDF).

Excerpt from the OGE memo:

On June 27, 2016, the U.S. Supreme Court issued its opinion in McDonnell v. United States, 579 U.S. ___, 195 L. Ed. 2d 639 (2016), which vacated the lower courts’ conviction of former Virginia Governor Robert F. McDonnell on bribery charges. The U.S. Office of Government Ethics (OGE) is issuing this legal advisory to emphasize that the Supreme Court’s holding in McDonnell does not affect other applicable prohibitions on Federal employees’ solicitation or acceptance of gifts, including 5 U.S.C. § 7353 and 5 C.F.R. § 2635.202(a).

The advisory notes the following:

5 U.S.C. § 7353 prohibits an executive branch employee from soliciting and accepting gifts from any prohibited source, unless an exception promulgated by regulation applies. Likewise, the Standards of Ethical Conduct for Employees of the Executive Branch, at 5 C.F.R. § 2635.202(a), prohibit an employee from soliciting or accepting any gift, directly or indirectly, if the gift is given because of the employee’s official position or the person offering the gift is a prohibited source. There is no requirement for the gift to be made in connection with any “official act” for these prohibitions to apply. These prohibitions apply to anything having monetary value unless the item is excluded from the definition of “gift” under 5 C.F.R § 2635.203(b) or qualifies for one of the narrowly tailored exceptions set forth in 5 C.F.R. § 2635.204.

OGE also says that “The Court’s opinion did not address the application of 5 U.S.C. § 7353, 5 C.F.R.§ 2635.202, or any other ethics law; rather, the Court opined solely on the construction of 18 U.S.C. § 201(a)(3). Consequently, the McDonnell opinion also does not affect OGE’s legal interpretation of the criminal conflict of interest statutes at 18 U.S.C. §§ 202-209 or OGE’s interpretation of the gift prohibitions at 5 U.S.C. § 7353 or 5 C.F.R. § 2635.202(a).”

Read the full advisory below:

Related items:


More Email Fallout and Security Clearance: @StateDept Says, “We’ll do it by the FAM.”

Posted: 4:22 am ET

The State Department has reportedly resumed its internal review related to the Clinton emails.  The spox refused to confirm “what specific materials” the State Department will consider or “what individuals may or may not be evaluated for possible employment or security clearance-related actions.” Note that this internal review is conducted by Diplomatic Security; perhaps due to public interest the results of the review may be released to the public, but that is not a given.

Via DPB dated July 15, 2016

We have additional information to provide about our internal review process. I will not be speaking about any specific case, nor will I be engaging in hypotheticals. As is standard, to protect the integrity of our work we cannot discuss the details of an ongoing review. Just as the FBI did not comment on its investigation, while it is ongoing we will not comment on our review.

That means I cannot confirm for you what specific materials we will consider or what individuals may or may not be evaluated for possible employment or security clearance-related actions. Our policy – so yes, it is —

QUESTION: What can you tell us?

MS TRUDEAU: It is moving. Yes, well, let’s go and I’ll give you exactly what we can.

Our policy is to assess each case on its own merits while taking into account all relative – relevant facts and circumstances. Furthermore, the department cannot comment on the status of any particular individual’s security clearance. Our goal is to complete this process thoroughly and expeditiously, but we will not put arbitrary deadlines on our work.

There is a significant amount of information about our process available to the public online. You’ll like this: For instance, I would point you to our Foreign Affairs Manual, specifically 12 FAM 500 and 230 sections. I’ll do my best to outline this process from the podium, but I cannot speak to every provision in the FAM. I also cannot speak to how the process will be applied to account for any specific circumstances.

In summary – and I still have a lot more to go, so stay with me – Diplomatic Security is responsible for evaluating security incidents and then reviewing them as appropriate for potential security clearance-related actions. Diplomatic Security is also responsible for referring certain incidents to our Bureau of Human Resources for potential employment actions. No matter the individual or conduct involved, the department conducts the review process in a professional, impartial, and fair manner that takes into account all relevant circumstances.

Multiple components within Diplomatic Security are involved in the process, supervised and overseen by the assistant secretary for Diplomatic Security. One component of Diplomatic Security conducts an initial assessment of security incidents and, when appropriate, issues security infractions or security violations. Security clearance reviews are conducted by a different DS component. As with Director Comey at the FBI and Attorney General Lynch at DOJ, it’s standard for our chief law enforcement officer, the assistant secretary for Diplomatic Security, to be involved with high-profile or complex matters, which is certainly the case here.

Assistant Secretary Greg Starr is the person in Diplomatic Security who is ultimately responsible for affirming or rejecting recommendations to revoke an individual’s security clearance. A decision to revoke a security clearance may be appealed to the Security Appeals Panel. Similarly, our human resource process can include multiple components, but ultimately Director General Arnold Chacon is responsible for taking disciplinary actions on an employee. That’s our process.

I know there’s questions about potential outcomes of the process. The short answer is that outcomes for any individual depend on their specific circumstances taking into account all of the relevant facts. This is what our review will determine. Current employees can face a range of employment discipline including reprimand, suspension, and termination. People with security clearances, including former employees, could have those clearances suspended and/or revoked.

We also maintain a security file on all personnel involved in security incidents. For individuals who no longer have a security clearance, the incident information is kept in their security file so it can be considered if they apply for a security clearance in the future. When evaluating whether a person remains eligible for access to classified information, the department follows the whole person approach based on the government-wide adjudication guidelines. Our Foreign Affairs Manual states that, quote, “Each case will be judged on its own merits,” end quote, based on specific, quote, “facts and circumstances,” end quote. Under the guidelines we can look at the severity of an incident, whether the person is a repeat offender, whether the individual is amenable to training or reform, and whether the incident was a technical violation or resulted in actual harm to national security.

As we have said, now that the FBI and DOJ have concluded their investigation, the department intends to conduct a review of Secretary Clinton’s emails according to our well established Security Incident Program. We’re preparing to conduct our review.


MS TRUDEAU: So there’s a lot. Thank you for your patience.

QUESTION: Well, I’ve got to digest quite a few.


QUESTION: But be with me on this, because I’m trying to get my head around it.


QUESTION: So the question here is: Has the FBI handed over – and how many emails has the FBI handed over to be reviewed?

MS TRUDEAU: At this stage, we have not received any from the FBI.

QUESTION: Have they indicated to you when that’s going to be?

MS TRUDEAU: I have no timeline on that, but we have not received them.

QUESTION: And then on DS, are they the – do they have the final word? Would – does Greg Starr have the – Assistant Secretary Greg Starr have the final word on this? Or can Secretary Kerry or even the President overturn those decisions or have the final say?

MS TRUDEAU: So I said there is – as I mentioned, there is a significant amount of information about our process online. So for this particularly, look at section 230 and 500 of 12-FAM. The 500 section outlines the Security Incident Program, which is handled by the Program Applications Division of Diplomatic Security. The 230 section outlines the security clearance, which is administered by the Office of Personnel Security and Suitability, also within DS. Both components operate under the oversight and supervision of the assistant secretary for Diplomatic Security.

QUESTION: So when it comes to Diplomatic Security, is that withdrawn – as you’re investigating it, is that withdrawn at the end or is it withdrawn at the beginning? Is it frozen? How does that work?

MS TRUDEAU: So the process you’re talking about – and forgive me for the FAM references, but it’s really detailed and really specific. So if people are looking for the details on this, refer to 12-FAM 233.4. I’m going to refer you there. As a general matter, the suspension of a security clearance is available if Diplomatic Security determines it’s appropriate while they carry out their review. However, if you read the FAM, you’ll see it’s not an automatic process; whether or not to suspend a person’s clearance depends on the circumstances. It’s a judgment of the trained professionals in DS.

QUESTION: And then how unusual is it that Diplomatic Security – or how unusual is it that this process – that you use this process?

MS TRUDEAU: So I’m not – it’s – I’m not going to talk sort of precedent, but I would say that there is offices within Diplomatic Security, and this is their mandate. All of us within the department – and we’ve spoken about this; Secretary Kerry has spoken about this – have the obligation to safeguard and correctly handle information.

QUESTION: So would this also include former employees? It includes former employees, right?

MS TRUDEAU: As I’ve said.

QUESTION: As you said. Does it include employees that are not part of the State Department but might also be involved in this – in the emails?

MS TRUDEAU: Okay, I’m not going to speak, as I mentioned, to the specifics of any individual, any case. I just want to outline this broadly, bring you guys up to date on it, and give you the references, because it is such a technical and granular matter.

QUESTION: Yeah. But I mean, as you know, Secretary Kerry – Secretary Clinton has been involved in this, and a lot of people are wondering how this could affect her. So would you be able to make some kind of outcome whether it includes her or whether it includes somebody in a lower position? Is everybody going to be looked at equally?

MS TRUDEAU: Again, I just can’t speak to the specifics on who will be reviewed, what incidents will be reviewed. But I will say the review is taking place.

QUESTION: And you can’t tell us when this review is going to start?

MS TRUDEAU: No. No, they – the idea of projecting a timeline on this – we’ll say they’re committed to a fair, impartial, and absolutely rigorous process.

QUESTION: And when you say – just one more question.


QUESTION: When the FBI says that it’s looking at thousands of withheld emails, that it’s going to give State thousands, you don’t know if it’s going to be thousands or if it’s going to be hundreds? You have no idea?

MS TRUDEAU: I couldn’t speak to the FBI documents.
QUESTION: Is Pat Kennedy going to be involved in any of this?

MS TRUDEAU: Okay, so thanks for the question.

QUESTION: I know there’s been some questions about that.

MS TRUDEAU: Yeah. So first, as we’ve said many times, Under Secretary Kennedy did not approve nor was he aware of the extent to which Secretary Clinton was using personal emails. No matter the individual or the conduct involved, the department will conduct and does conduct the security clearance process review in a professional, impartial, and fair manner that takes into account all relevant circumstances.

According to our Foreign Affairs Manual, the Under Secretary for Management Pat Kennedy becomes involved in a security clearance revocation in the event of an appeal. He is a member of a three-person panel that’s at the very end of our process. I’m not going to speculate that it’ll even get that far.

QUESTION: And you said Secretary Kerry is not going to be involved?

MS TRUDEAU: So Secretary Kerry will be informed of the details, the results of the review, after its completion. Again, I’m not going to speculate on outcomes or hypotheticals. As we’ve said many times from this podium, he wants this review done by the book, and the book requires Diplomatic Security lead and conduct this review.

QUESTION: And then just one more small one.


QUESTION: Will the – so FAM is pretty clear that supervisors (inaudible) be held responsible for their subordinates’ actions. How are you going to deal with this? Is this —

MS TRUDEAU: That is – that’s something I think I’m not going to speculate on that. I’m not going – I can’t speak to the details of that. I can’t speak to the review. And honestly, I’m not going to get into hypotheticals on the review.

QUESTION: Yeah. And then are you going to deal it as one big infraction, or are you going to look at several —


QUESTION: You don’t know?

MS TRUDEAU: I can’t speak to how they’ll do it – specific incident, individuals. It’s just the review is happening.

QUESTION: Will they —

MS TRUDEAU: We’ll do it by the FAM.