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 vrap@state.gov.”

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 pcsaveshelpline.org.

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?

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Sexual Assault Related posts:

Sexual Harassment related posts:

 

 

Decision Window For Federal Long Term Care Insurance With Shocking Premium Hike Closes 9/30/16

Posted: 3:01 am ET

 

Excerpted from CRS Insight (PDF), September 2016 via Secrecy News:

On July 16, 2016, the U.S. Office of Personnel Management (OPM) announced a premium rate increase for long-term care insurance policies purchased through the Federal Long Term Care Insurance Program (FLTCIP). The new rates were established following an open competitive bidding process. That process awarded a new seven-year contract to the prior insurer and sole bidder, John Hancock Life & Health Insurance Company, to continue providing coverage. According to OPM, the higher premiums are based on an analysis that used updated assumptions of industry trends and claims experience. The analysis determined that current FLTCIP premiums were not sufficient to meet projected costs and benefits. Most federal workers enrolled in FLTCIP are affected by the premium increase (an estimated 264,000 of the 274,000 enrollees).

During OPM’s 2016 Enrollee Decision Period, enrollees affected by the rate increase have until September 30, 2016, to decide whether to:

(1) keep their current coverage and pay the increase;
(2) reduce coverage in order to maintain their current premium; or
(3) allow their policies to lapse (i.e., drop coverage in the program).

Rate increases are scheduled to take effect November 1, 2016.
[…]
According to news sources, premiums are expected to increase by 83%, on average. Some Members of Congress have expressed their concerns to OPM leadership and John Hancock about such dramatic increases, calling for more time for enrollees to assess options as well as for congressional hearings on the issue.

Rate Stability and Long-Term Care Insurance

Federal workers are not the only policyholders to face LTCI premium increases. Over the past two decades, annual LTCI premiums have increased significantly overall for both current and new policyholders. Higher average premiums reflect increased demand for more comprehensive benefit packages (including inflation protection) and higher daily benefit amounts. Premium increases have also been driven by inadequate medical underwriting, premiums that were initially set too low, and insufficient growth in reserves to cover future claims. Thus, premium or rate stability depends largely on the ability of insurers to adequately predict future claims. Most policies issued before the mid-2000s have incorrectly predicted claims, necessitating changes to key pricing assumptions. For example, rising claims, lower mortality rates, lower-than-predicted voluntary termination (lapse) rates, and lower-than-predicted rates of return on investments have been cited as key reasons for LTCI premium increases. Nevertheless, large rate increases, such as those proposed by the FLTCIP, are likely to have a continued effect on consumer confidence in these products, possibly leading to further reductions in consumer demand.

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OPM’s Security Clearance Backlog Now At 500,000+ Govt-Wide

Posted: 4:14 am ET

 

The State Department recently sent an agency-wide message from the Under Secretary for Management which provide timelines for job applicants and employees who are in the process of applying or renewing their security clearances. The Bureau of Diplomatic Security adjudicates security clearances and renewals for all State Department employees but we understand that contractors are mostly processed by the Office of Personnel Management (OPM).  The message notes that OPM currently has a backlog of more than 500,000 clearances government-wide.

In terms of length of adjudication, apparently 60% of the Department’s initial Top Secret investigations are completed within six months while 66% of its initial Secret investigations are completed in four months. When compared government-wide, the Department adjudicates security clearances much faster than the government-wide average. So that’s good, except, of course, if you’re the one waiting for it, six months is a loooong time. We don’t know what is the average wait time for the remaining 40% awaiting their TS clearance or the 34% awaiting for their Secret clearance?

But the OPM backlog of more than 500,000 clearances government-wide? Not so good.  With a new administration transitioning in next year, waiting for a security clearance may just be like Beetlejuice waiting at the DMV without an appointment.

Via reactiongifs.com

Via reactiongifs.com

In related news, OPM is also in the news because the House Oversight and Reform Committee released its report yesterday on The OPM Data Breach: How the Government Jeopardized Our National Security for More than a Generation (read PDF or read below).  The report details the  exfiltration by two hacking teams of the security background data on 21.56 million individuals, the personnel files of 4.2 million former and current US government employees and the fingerprints for 5.6 million of them.

You will not be surprised to hear that OPM/OIG has warned since at least 2005 that the information maintained by OPM was vulnerable to hackers. US-CERT had also warned the department of a malware  operating on its servers in 2012, and again in 2014, CERT warned that a hacker had managed to get information out of the OPM servers. The report notes that the damage could have been mitigated if the security of the sensitive data in OPM’s critical IT systems had been prioritized and secured.

Read the report here:

 

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No Drama Obama Gets Lots of Drama in Asia, Plus Special G20 Surprise in South China Sea

Posted: 3:24 am ET

 

President Obama’s trip to Asia this week got off on a wrong foot. See POTUS in China: A ‘Staircase Snub’, Shouting Matches, and an Apology For a ‘Mistaken’ Tweet. Then on Monday, Philippine President Rodrigo Duterte got foul-mouthy with his early warning threat to President Obama potentially discussing the drug killings in the Philippines (also see Philippine President Calls the US Ambassador to Manila WHAT?). According to the CRS,  the Philippines has been one of the largest recipients of U.S. foreign assistance in Southeast Asia in the past decade, including both military and development aid. It also relies heavily upon the United States for its external security.  According to this 2015 piece, “the archipelago’s sailing force is made up of half-century-old antiques—and is falling apart.” And yet, here is President Duterte with his lovely manners.

 

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Nine Latin American Countries Request Review of U.S. “Wet Foot/Dry Foot” Policy For Cuban Migrants

Posted: 3:14 am ET

 

WaPo has a quick explainer on the “wet-foot/dry-foot” policy,  the informal name given to a 1995 agreement under which Cuban migrants seeking passage to the United States who are intercepted at sea (“wet feet”) are sent back to Cuba or to a third country, while those who make it to U.S. soil (“dry feet”) are allowed to remain in the United States. The policy, formally known as the U.S.-Cuba Immigration Accord, has been written into law as an amendment to the 1966 Cuban Adjustment Act. Read more here. Last year, the Miami Herald reported that in FY2015 (Oct. 1, 2014, and Sept. 30, 2015), the U.S. Coast Guard stopped 4,462 Cubans who attempted to illegally enter the United States by sea.  In FY2014 (before normalization) , 2,059 Cubans were apparently caught at sea, according to WaPo citing Coast Guard data. The traffic has more than doubled probably due to fears that with normalization, the policy will soon end.  An ongoing petition to Congress to End Wet foot, Dry Foot Policy currently has 1,682 letters sent to-date.  

Yesterday, the Ecuadoran Embassy in Washington, D.C. delivered a letter signed by nine Latin American countries “expressing their deep concern about the negative effects of U.S. immigration policy across the region.”  The letter sent to Secretary John Kerry was signed by Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama and Peru.  The joint letter also ends with the Foreign Ministers calling on Secretary Kerry to attend a High Level meeting to review this issue.

Below is from the Ecuadoran Embassy’s statement online:

The 1966 U.S. Public Law 89-732, known as the “Cuban Adjustment Act”, and the policy commonly known as “wet foot, dry foot” have encouraged a disorderly, irregular and unsafe flow of Cubans who, risking their lives, pass through our countries in order to reach the US.” 

They add that this is creating a serious humanitarian crisis for Cuban citizens, with the nine Foreign ministers stating that:

“Cuban citizens risk their lives, on a daily basis, seeking to reach the United States. These people, often facing situations of extreme vulnerability, fall victim to mafias dedicated to people trafficking, sexual exploitation and collective assaults. This situation has generated a migratory crisis that is affecting our countries.”

The signatories believe that to reduce the threats faced by Cuban migrants, it is necessary to address “the main cause of the current situation”. Revising the Cuban Adjustment Act and the ‘wet foot, dry foot’ policy “would be a first step to stop the worsening of this complex situation and would form part of a final agreement to ensure orderly and regular migration in our region.”

Addressing the initiative, the Ecuadorian Foreign Minister, Guillaume Long, said:

“The fact that nine foreign ministers have signed this letter shows the strength of feeling in Latin America about how US policy is creating an immigration crisis in our region.

Encouraged by the US “wet foot, dry foot” policy, Cuban migrants often become victims of trafficking, sexual exploitation and violence. It is time for the United States to change its outdated policy for Cuban migrants, which is undermining regular and safe migration in our continent.

This policy is also discriminatory. Ecuadorian migrants often have to live for decades with the threat of deportation, whereas Cuban citizens arriving in the US have the opportunity of residency after living there for a year and after five-years of residency they can apply for obtain citizenship. 

This injustice must end for everyone’s benefit.”

The State Department’s spokesperson was asked about this in Tuesday’s Daily Press Briefing, and here is the unexciting response:

QUESTION: Cuba. Nine Latin American countries have sent a letter to the Administration saying that U.S. policy, its wet foot/dry foot policy which guarantees citizenship to Cubans who make it to U.S. soil, is creating an immigration crisis for those countries through which they pass, and asked the Administration to review that policy. Do you have a response to that, and is there any review likely to be made?

MR KIRBY: Well, I’ll tell you a couple things. So we did receive the letter that you’re referring to signed by nine foreign ministers from Latin America about what is known as the Cuban Adjustment Act. Obviously, we are concerned for the safety of all migrants throughout the region, including migrants seeking to journey northward through South and Central America and Mexico. Irregular migration often involves dangerous journeys that illustrate the inherent risks and uncertainties of involvement with organized crime, including human smugglers and trafficklers – traffickers, excuse me, in attempts to reach the United States.

We continue to encourage all countries to respect the human rights of migrants and asylum seekers, and to ensure that they are treated humanely. And we’re going to continue to, obviously, engage governments in the region on this issue going forward. So we did receive the letter. I’d refer you to the authors of the letter for any more specific information on its content. I have no meetings to announce at this time, and the Cuban Adjustment Act remains in place and wet foot/dry foot remains U.S. policy regarding Cuban migration.

 

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

Posted: 3:19 am ET

 

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

Also see:

 

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

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

Via the Daily Press Briefing with official spox John Kirby:

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

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

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

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

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

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

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

With that, I’ll take questions.

Via US Embassy London/FB

You did it?

 

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

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

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

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

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

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

MR KIRBY: Right, but they don’t —

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

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

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

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

QUESTION: (Inaudible.)

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

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

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

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

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

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

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

QUESTION: Okay.

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

James.

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

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

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

MR KIRBY: I would never think that of you.

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

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

QUESTION: But the edit had already been made.

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

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

MR KIRBY: It is.

QUESTION: Okay. And so –

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

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

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

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

MR KIRBY: No, it doesn’t.

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

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

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

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

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

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

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

QUESTION: Did the content factor in?

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

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

QUESTION: I remember it well.

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

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

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

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

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

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

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

MR KIRBY: No, and that wasn’t their —

QUESTION: Okay.

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

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

MR KIRBY: Yes.

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

MR KIRBY: Yes.

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

MR KIRBY: Yes.

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

MR KIRBY: Yes.

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

MR KIRBY: That’s my understanding.

QUESTION: I have no further questions.

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

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

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

MR KIRBY: Let James – let James talk.

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

MR KIRBY: Yeah.

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

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

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

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

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

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

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

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

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

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

QUESTION: Well —

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

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

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

QUESTION: (Off-mike.)

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

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

MR KIRBY: Yeah.

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

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

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

MR KIRBY: Okay.

QUESTION: I have —

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

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

QUESTION: (Inaudible.)

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

QUESTION: Very small one.

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

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

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

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

QUESTION: He said “immediate.”

MR KIRBY: Oh, the immediate group.

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

MR KIRBY: No.

QUESTION: Unable to do it?

MR KIRBY: Unable to do that.

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

MR KIRBY: The technician recalls getting a phone call —

QUESTION: Yes.

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

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

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

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

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

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

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

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

MR KIRBY: Hang on, hang on, hang on.

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

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

QUESTION: Yeah.

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

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

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

QUESTION: Or was that the —

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

QUESTION: Okay.

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

QUESTION: Okay.

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

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

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

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

MR KIRBY: I can’t go back —

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

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

QUESTION: Well —

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

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

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

QUESTION: I did.

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

QUESTION: John —

QUESTION: Can we go to Syria?

QUESTION: No, I just have —

QUESTION: No.

QUESTION: Can we move to Syria?

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

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

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

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

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

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

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

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

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

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

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

QUESTION: Okay.

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

QUESTION: Well —

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

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

MR KIRBY: I don’t know.

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

MR KIRBY: The Secretary was not interviewed for this.

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

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

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

MR KIRBY: I know of no refusals.

QUESTION: Thank you.

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

QUESTION: Thank you.

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GOP National Security Heavyweights Warn Potential POTUS Would Be “Most Reckless”

Posted:2:22 am ET

 

The signatories to the open letter published in the New York Times include John Negroponte, the former Director of National Intelligence; former Deputy Secretary of State; former Deputy National Security Advisor and James Jeffrey, former Deputy National Security Advisor, The White House. It also includes Michael Hayden, the former Director, Central Intelligence Agency; former Director, National Security Agency.  The two former Secretary of Homeland Security, Tom Ridge and Michael Chertoff have also signed the letter along with a good number of familiar names who previously served in the State Department, Defense

This is in addition to the 121 GOP natsec folks who did a letter in March 2016. And the former Acting CIA Director, Michael Morell, who Donald Trump called a “lightweight” and  “a total Clinton flunky!”

“President must be willing to listen to his advisers and department heads; must encourage consideration of conflicting views; and must acknowledge errors and learn from them. A President must be disciplined, control emotions, and act only after reflection and careful deliberation. A President must maintain cordial relationships with leaders of countries of different backgrounds and must have their respect and trust.

In our judgment, Mr. Trump has none of these critical qualities. He is unable or unwilling to separate truth from falsehood. He does not encourage conflicting views. He lacks self-control and acts impetuously. He cannot tolerate personal criticism. He has alarmed our closest allies with his erratic behavior. All of these are dangerous qualities in an individual who aspires to be President and Commander- in-Chief, with command of the U.S. nuclear arsenal.”
[…]
Missing from the signatories are any of the living Republican former secretaries of state: Mr. Kissinger, George P. Shultz, James A. Baker III, Colin L. Powell and Condoleezza Rice.

Read the letter here:

 

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Familiar Names For Foggy Bottom in a Potential Clinton White House

Posted: 3:01 am ET

The names on who might be coming or coming back to Foggy Bottom in a Clinton Administration are not unexpected. Ambassador Wendy R. Sherman, former Under Secretary of State for Political Affairs and Ambassador Nicholas Burns, also a former Under Secretary of State for Political Affairs have been with her through the primary season. The two were part of a group of former top government officials who issued a joint statement raising questions about Senator Bernie Sanders’ proposals for countering ISIS and dealing with Iran. Probably the only surprising name in this round is James Stavridis, a retired U.S. Navy admiral and former Supreme Allied Commander Europe (SACEUR) who is the current dean of the Fletcher School of Law and Diplomacy at Tufts University.

Via Politico:

Secretary of State

For obvious reasons, this is seen as the job Clinton will think about most — potentially empowering the pick, or potentially leading to an extra level of oversight at Foggy Bottom from the West Wing. Clinton’s seen as being intrigued by having a person in the role who has experience in elected office, but there’s no obvious contender from the House and Senate (except for current Secretary of State John Kerry, whom people expect would leap at the chance to stay on, though probably would suffer from Clinton wanting to have her own pick in this job most of all). People at the State Department and elsewhere are pulling for Wendy Sherman, the former undersecretary of state for political affairs and a key player in the Iran nuclear deal, and Bill Burns, a career diplomat who was deputy secretary of state. Nick Burns is seen as being in the mix as well, a career foreign officer who rose to undersecretary of state for political affairs in Bush’s second term and has been a strong defender of Clinton in the campaign. Kurt Campbell, Clinton’s assistant secretary for East Asian and Pacific Affairs, has expressed interest to several people. Strobe Talbott, the friend of the Clintons and a deputy secretary of state during Bill Clinton’s first term and now the president of the Brookings Institute, is also seen as a possibility. Or Clinton might go for a surprise like James Stavridis, the admiral who was the only nonpolitician to be vetted for her running mate.

Would be interesting to see who might be coming to Foggy Bottom in a potential Trump administration. GOP national security folks, all 121 of them, recently published an open letter  saying “… we are united in our opposition to a Donald Trump presidency.”

The letter was coordinated by Dr. Eliot A. Cohen, former Counselor of the Department of State (2007–8) under Secretary Rice, and Bryan McGrath, Managing Director of The FerryBridge Group, a defense consultancy. Lots of familiar names. All saying, “as committed and loyal Republicans, we are unable to support a Party ticket with Mr. Trump at its head. We commit ourselves to working energetically to prevent the election of someone so utterly unfitted to the office.”  These folks have effectively ruled themselves out from working in a Trump Administration.  Which begs the question, who are still left in the tent?

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Rainey v. @StateDept: Attention Whistleblowers — Rules and Regs Are Not Laws

Posted: 2:14 am ET

 

Last year, we blogged about a decision by the Merit Systems Protection Board concerning a Whistleblower Protection Act case where a State Department employee, Timothy Allen Rainey, alleged that the agency stripped him of certain job duties and gave him a poor performance rating after he refused to follow an order that would have required him to violate federal acquisition regulations (FAR) and training certification procedures. See Rainey v. State Department: “Right-to-Disobey” (Precedential Decision).

On June 7, 2016, the U.S. Court of Appeals for the Federal Circuit upheld the Merit Systems Protection Board ruling in a precedent-setting opinion — agreeing that the term “a law” in section 2302(b)(9)(D) refers only to a statute, and not to a rule or regulation.

In this IRA appeal, Rainey claimed that his duties as contracting officer had been taken away from him because he refused to obey his supervisor’s order to tell a contractor to rehire a terminated subcontractor.  Rainey contended that he refused to obey the order because dong so would have required him to violate a provision of the Federal Acquisition Regulation.  The issue was whether the right-to-disobey provision of the Whistleblower Protection Act, 5 U.S.C. §  2302(b)(9)(D), which protects covered employees from retaliation “for refusing to obey an order that would require the individual to violate a law,” applied to the appellant, who alleged that he had suffered retaliation for refusing to obey an order that would require him to violate a regulation.  The Board, relying on a recent Supreme Court decision, Department of Homeland Security v. MacLean, 135 S. Ct. 913 (2015), which held that the word “law” in the “right-to-disclose” provision of the WPA, 5 U.S.C. §  2302(b)(8), refers only to statute, and not to a rule or regulation, ruled that the term “a law” in section 2302(b)(9)(D) should also be interpreted to refer to a statute, and not to a rule or regulation.  122 M.S.P.R. 592 (2015).

The Court writes:

Dr. Rainey makes a final argument that the FAR is a particularly important regulation that has the full force and effect of law and therefore should be regarded as “a law” within the meaning of section 2302(b)(9)(D) even if other regulations do not qualify as “laws” for purposes of that statute. The first problem with that argument is that substantive agency regulations that are promulgated pursuant to statutory authority typically have the “force and effect of law,” see Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015); Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979), so that feature does not distinguish the FAR from other more quotidian legislative rules. The second problem with the argument is that, as noted, there is nothing in the section 2302(b)(9) that even hints at a distinction between important regulations and less important regulations; to the contrary, the statute distinguishes between “a law” and “law, rule, or regulation,” and the FAR clearly falls on the “regulation” side of that divide.

What now?  Court says “Congress is free to alter the scope of the statute”:

Dr. Rainey’s arguments are heavy on policy reasons why Congress likely would not have wanted to confine the scope of section 2302(b)(9)(D) to statutes. Those policy considerations are not without force, and it may be that the statute should be extended to cover rules, regulations, and other sources of legal authority. If so, Congress is free to alter the scope of the statute. But we are not so free. Between the restrictive language chosen by Congress and the closely analogous decision of the Supreme Court in MacLean, we are constrained to hold that the protection granted by section 2302(b)(9)(D) is limited to orders that are contrary to a statute, and does not encompass orders that are contrary to a regulation.

This is bad.  So basically State Department employees will not be able to get whistleblower protection for refusing orders that violate rules or regulations in the Foreign Affairs Manual/Foreign Affairs Handbook.  If a supervisor orders an employee to break the rules/regs in the FAM/FAH, the employee must comply or be subjected to disciplinary action/s?  How nutty is that?

Click here to contact your congressional representatives.

Read the ruling below or read it via mspb.gov here (PDF). 

 

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Throwback Thursday: An Election, an FOIA, and @StateDept in the Eye of the Storm

Posted: 1:48 pm EDT

 

In November 1992, Sherman Funk, the Inspector General at that time was joined at the State Department podium by Lawrence Eagleburger who was then Acting Secretary of State for a special briefing on the investigation into the passport files of then Democratic presidential nominee Gov. Bill Clinton, his mother, and independent presidential candidate Ross Perot.

The report blamed lower level State Department employees for beginning the search, with the assistant secretary for consular affairs as the highest bureaucratic casualty. The OIG report notes that “The genesis of the search may have been ordinary FOIA requests; the manner in which it was carried out was anything but ordinary. Although aspects of the search made headlines for a month and a half, the entire search lasted but two days.”

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Click on image to watch the 1992 video via c-span.

Mr. Funk did an oral history interview for ADST (PDF) where he talked about his investigation of this incident. Quick excerpt below:

[I]n view of the enormous political potential of this, I called Eagleburger and said, I think this should be turned over to the FBI. Not that we couldn’t do it, but because of the unbelievable sensitivity in an election year when Bush was starting to run further and further behind, that this could look like a dirty trick like what was pulled back in the ‘72 campaign with Mr. Nixon. I also sent later that day a memo for record. I said this could be the October surprise to end all October surprises. We talked about it on the phone, as we did first thing in the morning, I pointed out that for the Republicans this could be a no-lose situation. If a letter like that could be found, Clinton was dead. There was no way he could become President if he at one time said he renounces his American citizenship, just impossible. On the other hand, if no letter could be found, and a charge could be made that the files had been tampered with, and that charge could have validity, that would make it appear that he had removed the letter surreptitiously from the files with the power of the presidency behind him. So therefore, whether or not the letter was written, if the story got out that we were looking at a tampering investigation, it would be a very dicey situation, particularly inasmuch as Jim Baker, the former Secretary of State, was now running the campaign for Bush. And I said I would not want to be in that position because obviously I had worked closely with Baker while he had been Secretary. So Eagleburger, personally I don’t think he was too happy, but he didn’t argue, he said Sherman you call it the way you want to. So I called the Attorney General, Bill Barr, whom I knew rather well, I had worked with him on a number of things before, and in fact helped him get the deputy attorney generalship. It’s a long story, but I had some working relationship with him. And I told him something that I had only read about in books before. He said is it important? I said, “Yes, Bill, this is a matter of national moment.”
[…]
[T]he Department was really coming to pieces. I’ve never seen anything quite like it. People would stop me in the halls with tears in their eyes, and say, “You’ve got to do something about this. We’re being taken over by politicians.” Because every day there were different leaks in the newspaper. Newspaper reporters are very aggressive, particularly during a campaign. So they go to some GS-4 clerk in the national archives and say, “If you don’t tell me what’s going to happen, we’ll put you all over the paper and your career will be dead.” Somebody actually told me this, and they’d be crying when they talked to the reporter. And some of the reporters, who were absolute shits on this thing, unbelievable bastards in the way they operated. There were some noble people. There were some excellent reports, particularly in the Wall Street Journal and to some extent the New York Times, and by and large, the Post wasn’t too bad. But the Washington Times, the Daily News, the New York Post. It wasn’t a matter of politics, it was a matter of just scandals and little journalism. And every night there was something on the evening news about this. And people honestly in the State Department began to think that the Department had been totally corrupted and had been taken over. I’ve never seen a man as devastated in my life as Eagleburger, who was a lame duck until the election was over, who wanted to end his career on a high note, had been a brilliant officer, I think. I happen to think immensely of the man. And here he was leaving on a note that was so low that he was totally despondent.

State/OIG was kind enough to dig up the 1992 report for us which should be required reading:

 

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