Trump EO: Executive Authority to Exclude Aliens and the Long Battle Ahead

Posted: 12:31  pm PT
[twitter-follow screen_name=’Diplopundit’]

 

On January 27, President Trump signed an executive order suspending the entry of refugees to the United States for FY2017 for 120 days. The E.O also proclaimed the entry of certain aliens as “detrimental to the interests of the United States” and declared the suspension of their entry into the United States for 90 days.  The aliens referred to are from countries cited under Section 217(a)(12) of the INA, 8 U.S.C.1187(a)(12) according to the executive order.  These are the same countries cited under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015: Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen. (see Trump Bars US Entry of Refugees, and Citizens, Green Card Holders From Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen).

On January 28, a federal court in New York granted a temporary injunction to the ACLU. Statement below:

A federal judge tonight granted the American Civil Liberties Union’s request for a nationwide temporary injunction that will block the deportation of all people stranded in U.S. airports under President Trump’s new Muslim ban. The ACLU and other legal organizations filed a lawsuit on behalf of individuals subject to President Trump’s Muslim ban. The lead plaintiffs have been detained by the U.S. government and threatened with deportation even though they have valid visas to enter the United States. Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project who argued the case, said: 

“This ruling preserves the status quo and ensures that people who have been granted permission to be in this country are not illegally removed off U.S. soil.”

Four days before this executive order was signed, the Congressional Research Service issued a brief on this topic which explains the broad power of the President under the Immigration and Nationality Act. Excerpt from the brief:

The Immigration and Nationality Act (INA) provides that individual aliens outside the United States are “inadmissible”—or barred from admission to the country—on health, criminal, security, and other grounds set forth in the INA. However, the INA also grants the Executive several broader authorities that could be used to exclude certain individual aliens or classes of aliens for reasons that are not specifically prescribed in the INA.

Section 212(f) of the INA is arguably the broadest and best known of these authorities. It provides, in relevant part, that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

The central statutory constraint imposed on Section 212(f)’s exclusionary power is that the President must have found that the entry of any alien or class of aliens would be “detrimental to the interests of the United States.”

The statute does not address:
(1) what factors should be considered in determining whether aliens’ entry is “detrimental” to U.S. interests;
(2) when and how proclamations suspending or restricting entry should be issued;
(3) what factors are to be considered in determining whether particular restrictions are “appropriate”; or
(4) how long any restrictions should last.

Congress, of course, can amend the INA to specifically address these factors. Sen Dianne Feinstein said on Twitter that she will introduce two bills with the first one to “immediately rescind” the executive order.  She also said that the second bill “limits executive authority under the Immigration and Nationality Act.” We’ll have to see where this goes. A companion bill has to be introduced in the House, and both chambers have to agree to it and all its amendments, pass it before it gets to the White House to be signed into law. We doubt it would go very far given the GOP hold on both houses and the White House, but we’ll see.

The CRS report also points to two other sections of the INA:

Beyond Section 212(f), other provisions of the INA can also be seen to authorize the Executive to restrict aliens’ entry to the United States. Most notably, Section 214(a)(1) prescribes that the “admission of any alien to the United States as a nonimmigrant shall be for such time and under such conditions as [the Executive] may by regulations prescribe.” Section 215(a)(1) similarly provides that “it shall be unlawful for any alien” to enter or depart the United States “except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” For example, President Carter cited Section 215(a)— rather than Section 212(f)—when authorizing the revocation of immigrant and nonimmigrant visas issued to Iranian citizens during the Iran Hostage Crisis.

The CRS brief lists the categories of aliens excluded under INA 212(f) going back to President Reagan. There are about 50 such orders but from best we could tell, they are all narrowly constructed restrictions unlike the Trump EO. For example:

On October 10, 1985, Reagan issued Proclamation 5377 “Suspending the entry of specified classes of Cuban nationals as nonimmigrants (e.g., officers or employees of the Cuban government or the Communist Party of Cuba holding diplomatic or official passports).”

On Dec. 14, 1993,  President Clinton issued Proclamation 6636 “Suspending the entry into the United States, as immigrants or nonimmigrants, of aliens who formulate, implement, or benefit from policies that impede Nigeria’s transition to democracy and their immediate family.”

On July 3, 2007, President George W. Bush issued Proclamation 8158 “Suspending the entry into the United States, as immigrants or nonimmigrants, of persons responsible for policies or actions that threaten Lebanon’s sovereignty and democracy (e.g., current or former Lebanese government officials and private persons who “deliberately undermine or harm Lebanon’s sovereignty”)”

On March 19, 2014, President Obama issued Executive Order 13661 “Suspending the entry into the United States, as immigrants or nonimmigrants, of aliens determined to have contributed to the situation in Ukraine in specified ways (e.g., officials of the government of the Russian Federation, or persons who operate in the arms or related materiel sector).”

 The CRS brief includes a discussion of judicial constructions of Section 212 (f): Sale v. Haitian Centers Council, Inc. about the U.S. practice of interdicting persons fleeing Haiti outside U.S. territorial waters, and United States ex rel. Knauff v. Shaughnessy, where the Court rejected a challenge to the exclusion of a German “war bride.”  In reviewing the court cases related to Section 212(f) INA, the CRS brief issued four days before the Trump EO was issued notes that “None of these decisions note any limitations upon the President’s power under Section 212(f). This silence could, however, be seen, in part, to reflect the arguably limited nature of the Executive’s use of its Section 212(f) authority to date.” Also this:

In no case to date, though, has the Executive purported to take certain types of action, such as barring all aliens from entering the United States for an extended period of time or explicitly distinguishing between categories of aliens based on their religion. Any such restrictions could potentially be seen to raise legal issues that were not raised by prior exclusions. For example, if the Executive were to seek to bar the entry of all aliens, as immigrants or nonimmigrants, for an extended time, questions could be raised about whether the President’s action was consistent with Congress’s intent in enacting statutes which prescribe criteria for the issuance of family- and employment-based immigrant and nonimmigrant visas and authorize the issuance of certain numbers of such visas each year.35 Similarly, if the President were to purport to exclude aliens based on their religion, an argument could potentially be made that this action is in tension with U.S. treaty obligations36 or the First Amendment.

No doubt this is just the beginning of a long battle in Congress and in U.S. courts. Of great interest perhaps to our readers is a legal look from Just Security’s ‘s Why Trump’s Executive Order on Refugees Violates the Establishment Clause and ‘s Why a Muslim Ban is Likely to be Held Unconstitutional: The Myth of Unconstrained Immigration Power

 

#

Advertisements

State Dept says enhanced gag rules policy “more protective of employee speech” … no cry, cry, please!

Posted: 5:07 am EDT
[twitter-follow screen_name=’Diplopundit’ ]

On August 17, we wrote about the State Department’s updated and enhanced rules for speaking, writing, teaching and media engagement covering all creatures big and small in Foggy Bottom, and the worldwide diplomatic universe (see State Dept Releases New 3 FAM 4170 aka: The “Stop The Next Peter Van Buren” Regulation).

The Daily Signal picked it up and got an official statement from deputy spox Mark Toner:

State Department Deputy Spokesperson Mark Toner says the reason for the revisions is actually “to underscore that the Department encourages employees to engage with the public on matters related to the nation’s foreign relations.”

“The revised policies and procedures are more protective of employee speech as they establish a higher bar for limiting employees’ writing or speaking in their personal capacity, while also recognizing changing technologies in communication, such as social media,” Toner said in a statement to Daily Signal.

Toner also said the revisions do not change the procedures employees must follow before testifying in court or before Congress but “streamline the review process and also remind employees about existing rules regarding the disclosure of classified and other protected information.”

Streamline-apalooza! Here’s the laugh out loud cry from our favorite Veronica Mars:

“It’s an absolute overreach,” Rep. Jason Chaffetz, chairman of the House Oversight and Government Reform Committee told the Daily Signal:

“They should be able to talk to the media, they should be able to speak to Congress,” the Utah Republican said. “They have an absolute and total right to interact with Congress. There are whistleblower protections. That’s not a balanced approach to current and former employees’ rights.”

No kidding! We imagine that the State Department would say no one is preventing anyone from speaking to the media or Congress, they just want to know what you’re going to say first.  Before you say it. And hey, the agency will even help you clean it up, if needed.

When the ACLU defended Mr. Van Buren in 2012, it made the following argument:

The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the govemment’s interest, as employer, in the orderly operation of the public workplace and the efficient delivery of public services by public employees. Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968). The government bears an even greater burden of justification when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. National Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”).
[…]
The Supreme Court has repeatedly held that public employees retain their First Amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti
v. Ceballos, 547 U.S. 430, 421 (2006).
[…]
Further, the State Department’s pre-publication review policy, as applied to blog posts and articles, raises serious constitutional questions. Through its policy, the State Department is prospectively restricting the speech of Mr. Van Buren as well as all present and future State Department employees. Where, as here, the restriction limits speech before it occurs, the Supreme Court has made clear that the government’s burden is especially heightened. NTE U, 513 U.S. at 468. The State Department must show that the interests of potential audiences and a vast group of present and future employees are outweighed by that expression’s necessary impact on the actual operation of government. Id. Courts have also required careful tailoring of prospective restrictions to ensure they do not sweep too broadly and that they actually address the identified harm. Id. at 475. Given this heightened standard, it is highly unlikely that the State Department could sustain its burden of demonstrating that its policy is constitutional.

In 2012, the ACLU presumably, used the 2009 version of 3 FAM 4170.  The updated version of 3 FAM 4170 issued July 27, 2015 is much tighter and has a much wider reach.  We don’t know how one could argue that this enhanced policy could better sustain constitutional challenge. But then, perhaps, State has a stable of constitutional lawyers at a ready. Besides, those folks outside  the building do not have legal standing to challenge these rules. So.

Oh, wait, perhaps, the State Department is also counting that no one will cross the fine line after Mr. Van Buren, and this policy functions, at its core, as a simple deterrent.

#

Related item:

ACLU Van Buren Letter to U/S Management Patrick Kennedy dtd May 15, 2012

Clinton Email Saga: How do you CTRL+F 55,000 pages of paper?

Posted: 12:43  am EDT
[twitter-follow screen_name=’Diplopundit’ ]

 

Marc Perkel who runs a spam filtering service has an interesting addition to the Clinton email saga, something to do with what happens to emails that go through a  spam filtering service.  But he also wrote this:

But – and this is a very important point – is HOW the emails were turned over. She printed each one out on paper one by one and handed over boxes of paper with the email printed. Thus those email can’t be searched electronically. So if someone wants all emails to some individual or emails about a subject then someone has to hand search these emails and they are likely to miss something.

It would have been far easier to copy all the emails onto a thumb drive and hand that over to the State Department where they could be electronically imported into the system and electronically searchable like all the other emails are. But she chose to go to great trouble to deliberately make things difficult for the State Department to process those emails.  And that indicates an act of bad faith. She’s just giving all of us the virtual finger.

This from a a guy who writes that if Clinton is the candidate,  he “would still vote for her in the general election over any Republican.”

Also see  Attn: Delivery Man Schlepping Boxes With 55,000 Pages of Emails to Foggy Bottom, You’re Wanted at the Podium! (Corrected)

When asked why these documents were not provided to State in electronic format for better searchability, the official spox said, “Well, there is some long precedent here for how this is done.”  I don’t know what kind of precedent she is talking about.  Has anyone ever had to produce  55,000 pages of emails before from a private email server? How do you search that? Control+D for smart not?

This is basically 110 reams of paper at 500 sheets per ream, or 11 bales of paper.  And if the Clinton folks instead used a thumb drive for these 55,000 pages of email, it probably could have spared a tree or two!

Reseed’s strategy is prevention and remediation — not only can we curb deforestation by encouraging consumers and retailers to adopt e-receipts, but we can also reverse some of the damage with the money saved. Forgoing 55,000 receipts can spare an entire tree, and it only takes a dollar in donations for Reseed to plant a tree.

Going Paperless: The Hidden Cost of a Receipt
Part of a series produced by The Huffington Post and the Clinton Global Initiative 

Oy! What’s that?

The ACLU writes that the politics swirling around the Clinton email scandal obscure real problems:

As the Committee for Responsibility and Ethics in Washington has documented at length, various Bush White House officials used Republican National Committee accounts to communicate with Attorney General Alberto Gonzales in what would become the scandal over the hiring and firing of United States attorneys that the Department of Justice later found to be the inappropriately politicized.

The decision by Secretary Clinton to use “clintonemail.com” exclusively for official business disregards these historical examples. Unfortunately, officials can face the strong temptation to hide official business out of the reach of Freedom of Information Act requests. And as the new retention rules recognize, that’s unacceptable for our democracy.

 

On March 17, twelve open government organizations also wrote a letter to Secretary Kerry and David S. Ferriero, the Archivist of the United States asking that the Clinton emails containing federal records be transferred to the Department of State in their original electronic form:

Because it is of the utmost importance that all of former Secretary Clinton’s emails are properly preserved and transferred back to the State Department for accountability and historical record purposes, we are asking that you verify that Secretary Clinton’s emails containing federal records are transferred to the Department of State in their original electronic form, so that all such emails may be accessible pursuant to the Freedom of Information Act. The Archivist and State Department are authorized by the Federal Records Act to seek the recovery of records that may have been improperly removed, and the task of determining which emails constitute federal records should not be left solely to Mrs. Clinton’s personal aides. Rather, the Archivist and State Department should oversee the process to ensure its independence and objectivity. To the extent that it is ascertained that any record emails were deleted, they should be retrieved if technically possible.

The letter available online here (pdf) was signed by Cause of Action, Defending Dissent Foundation, Electronic Frontier Foundation, MuckRock, National Coalition for History, National Security Archive, National Security Counselors, OpenTheGovernment.org, Pirate Times, Project on Government Oversight (POGO),  Society of Professional Journalists and The Sunlight Foundation.

 #

US Embassy Yemen: Revocation of U.S. Passports, a Growing Trend?

|| >    We’re running our crowdfunding project from January 1 to February 15, 2014. If you want to keep us around, see Help Diplopundit Continue the Chase—Crowdfunding for 2014  via RocketHub  <||

 

— Domani Spero

Back in August 2013, Yemen Post reported of “more than 20 known cases” of U.S. passports revoked by U.S. Embassy Sana’a in Yemen:

More than 20 known cases of Yemeni-Americans who have tried to renew their passports in Yemen have surfaced in the last four months. The Yemeni American News has learned that the usual scenario is that American citizens of Yemeni descent have had their passports taken away when they go to the American Embassy in Sana’a to either renew their passports or get a visa for an immediate relative. Not only is it common for the embassy to decline a passport renewal or disallow a visa but, in addition, citizens are having their passports confiscated.

Peter Van Buren previously blogged about the U.S. passport revocations at the U.S. Embassy in Sana’a, Yemen here and here. WaPo’s  In the Loop has a Jan.9  item about the rights groups’ warning to U.S. passports applicants visiting the embassy.

Here is what state.gov says about passport revocation:

Passport revocation may be effected when the person obtained the passport fraudulently, when the passport was issued in error, when the person’s certificate of naturalization was cancelled by a federal court, or when the person would not be entitled to a new passport under 22 C.F.R. §§ 51.60, 51.61, or 51.62.

The State Department revokes passports in accordance with Title 22 of the Code of Federal Regulations (CFR) sections 51.60-62, and 51.65. There are also several statutes under which passports may be revoked and that are incorporated into DOS’s regulations, including: 8 U.S.C. 1504 (the passport was illegally, fraudulently or erroneously obtained); 42 U.S.C. 652(k) (for non-payment of child support); 22 U.S.C. 2714 (for certain drug traffickers); 22 U.S.C. 2671(d)(3) (non-repayment of repatriation loan); and 22 U.S.C. 212a (adds authority to revoke passports of persons convicted of sex tourism). Via

You may click here for 22 CFR on the denial and restriction of passports.

There had been talks alleging “500 seized/revoked passport cases.” Our own inside source who is not authorized to speak about this matter tells us that “at least 100 passports were taken” so far in Sana’a.  We were told that most of the individuals concerned were naturalized U.S. citizens.  According to State Department rules which are not published online, individuals remain eligible for U.S. passports until their Certificate of Naturalizations are revoked.

Naturalization certificates are supposed to stand on its own and cannot be questioned.  If the State Department has negative information, it is supposed to send the information to DHS/USCIS for action. But unlike most other immigration proceedings that USCIS handles in an administrative setting, revocation of naturalization can only occur in federal court.

Here is what USCIS says on revocation of naturalization:

If a court revokes a person’s U.S. citizenship obtained through naturalization, the court enters an order revoking the persons naturalization and cancelling the person’s Certificate of Naturalization. In such cases, the person must surrender his or her Certificate of Naturalization. Once USCIS obtains the court’s order revoking citizenship and cancelling the certificate, USCIS updates its records, including electronic records, and notifies the Department of State of the person’s revocation of naturalization. 

So — if true that most of the revocation cases concerned naturalized Yemeni-Americans, is the US Embassy in Yemen performing passport revocations without prior action from the U.S. Citizenship and Immigration Service (USCIS)?  Is this a case of a new policy?  Or is this a case of a Consular Section running “wild” with “minimal supervision” an allegation made by a State Department insider to this blog?

We asked around for an official comment and could only get one from a State Department official speaking on background:

“This Department is aware of the reports concerning these passports, and the situation has been reviewed.  Regarding the Department’s policy for passport revocation, the Department may revoke a passport, regardless of location, for reasons set forth in federal law and in federal regulations.  U.S. passports are the property of the United States Government and upon revocation must be returned to the Department of State.  A passport bearer is notified of the revocation and the reasons for revocation and must surrender the passport.  Depending upon the circumstances, the bearer may be provided with a limited validity passport for a direct return to the United States.”

The State Department refused to confirm or deny the number of passport revocations to date.

In response to reports that the U.S. Embassy in Sanaa has been taking U.S. passports away from a large number of U.S. citizens in Yemen, civil rights and community organizations like the ACLU, ALC, AROC, CAIR and CLEAR have published a booklet to raise awareness about the constitutional rights of people whose passports have been taken away, or who are interviewed or “interrogated” at the U.S. Embassy in Sanaa.

Screen Shot 2014-01-04

Click on image to view the PDF document

A little more digging around indicates a few court cases involving the US Embassy in Sana’a.

Abdo Hizam v. Hillary Clinton

Plaintiff Abdo Hizam brought action against defendants Hillary Clinton, the United States Department of State, and the United States of America (collectively the “State Department”) seeking a judgment declaring that he is a citizen of the United States and an order compelling the defendants to re-issue his Consular Report of Birth Abroad for a Citizen of the United States (“CRBA”) and passport.

On April 18, 2011, the State Department informed Mr. Hizam by letter of its opinion that it had committed an error in calculating the physical presence requirement for his acquisition of citizenship at birth. Subsequently, the State Department informed Mr. Hizam that his CRBA had been canceled and his passport revoked and requested the return of those documents. On May 19, 2011, he complied.

The July 27 Order found that the State Department did not have the authority to revoke Mr. Hizam’s citizenship documents and ordered the return of Mr. Hizam’s CRBA. The State Department contended that absent a stay it will suffer irreparable injury because the July 27 Order undermines its “sole discretion” to withhold passports. The Court says that “being required to comply with a court order is insufficient in and of itself to constitute irreparable harm.” In September 2012, the Court ruled that the stay is denied on the condition that Mr. Hizam not seek derivative status for his family members until an appeal, if lodged, is resolved.” The appeal is ongoing on this case.

The Hizam case was covered by NYT in 2012 here. This case bears watching as no fraud is alleged here; instead, the CRBA was issued due to the error of the adjudicating officer.

 Nashwan Ahmed Qassem v. Holder et. al. | CIVIL DOCKET FOR CASE #: 6:13-cv-06041-DGL

Complaint for writ of mandamus & declaratory judgment against Department of State, Bureau of Consular Affairs, Consular General, US Embassy, Sana’a Yemen, and Chief, Immigrant Visa Branch, US Embassy, Sana’a Yemen, Eric Holder, The United States Department of Justice, filed by Nashwan Ahmed Qassem. In October 2013, the Clerk of the Court was directed to close the case by Hon. David G. Larimer.  This case reportedly involved Embassy Sana’as  revocation of a passport and was settled by issuing the passport.

All documents sealed except for order granting motion to withdraw.

Alarir et al v. Holder et al.|  CIVIL DOCKET FOR CASE #: 1:12-cv-07781-AKH

Complaint in the nature of mandamus against Gerald Michael Feierstein, Eric H. Holder, Janice L. Jacobs, Alejandro Mayorkas, Janet Napolitano, Hillary Rodham Clinton by Abdallah Alarir aka Aiyahs, Nasser A. On or about October 18, 2012, seeks order compelling Defendants to (a) issue an immigrant visa to plaintiff Abdallah Alarir and (b) issue United States passports and Consular Records of Birth Abroad to plaintiffs Alaa AJarir and Rawan Alarir.  After a sixth request for an extension, on 10/31/2013, the Clerk was directed to close the case by Judge Alvin K. Hellerstein. The case endorsement says “A suggestion of settlement having been made, this case is dismissed, subject to restoration by either party within 30 days on notice. All pending court dates are cancelled.”

The case was settled with issuance of an immigrant visa to Abdallah Alarir and United States passports and Consular Records of Birth Abroad to Alaa Alarir and Rawan Alarir according to the dismissal order dated November 2013.

Mousa v. United States of America et. al.| CIVIL DOCKET FOR CASE #: 3:13-cv-05958-BHS

COMPLAINT filed (sealed) on November 2013 against defendant(s) United States of America, U.S. Consulate for the Country of Yemen, David Doe, John Doe by Hashed Naji Mohamed Mousa, Fekriah Abdulwahab and minor children, A.H.M., B.H.M. As of 12/05/2013, this case reportedly involving the passport applications of minor children is ongoing. Some files are sealed.

Passport Applications Pending at Post

According to 7 FAM 1368 — “If the passport applicant does not have sufficient evidence to establish a claim to U.S. citizenship, post must provide the applicant with written notification that his/her application has been denied, but will be held by post for 90 days pending submission of additional evidence. If an applicant requests additional time to submit evidence within the 90 day period, posts may grant an additional 90 days or other reasonable period of time based upon the circumstances. In general, passport applications may not remain pending at a post for more than six months.”

If passport applications have been pending at post for six months or even longer (WaPo says that some cases are pending for two years), and American citizens had to get lawyers, and go to court to compel the embassy to decide on their cases, then there is something problematic with the process. Absent an official explanation from the CA Bureau, we can only speculate on what is going on here: 1) Is there is a new policy on passport applications/revocations that the State Department is using without appropriate announcement? 2)  Is there is a new policy on passport applications/revocation that State is using specific to Yemeni-American passport applications? 3) Are there Citizenship/Passport/Fraud staffing issues at Embassy Sana’a that impacts this trend? 4) Is the lengthy waiting time and backlog due to fraud overload at post?

Isolated Cases or a New Trend?

We could not locate any new guidance publicly available on U.S. passport revocations. Is there one available  that supersedes 7 FAM 1368?  If there is one, it would have been published in the Federal Register, not just the changes but the propose changes to the rules. There appears to be several proposals for information collection related to passport applications published on the Federal Register but nothing on passport revocations.

If true that over 100 passports were taken away, revoked or pending revocation, these are no longer isolated cases but  may now constitute a trend.  In 2010, a State/OIG report on Yemen includes this:

“The failed attempt by a Yemeni-trained Nigerian terrorist to blow up a Detroit-bound jet on Christmas Eve 2009 and the Yemeni links to the U.S. Army major who, in November 2009, allegedly killed 13 of his countrymen in Fort Hood, Texas, have raised the public consciousness of Yemen as a center for terrorism. This awareness has underscored the importance to homeland security of all consular activities. Issuing a passport or visa to a terrorist is a real risk, and Embassy Sanaa works hard to make sure that their product is free of fraud.”

But if that’s the basis for this “new” trend in passport processing at post, how about  the fact that 15 of the 19 hijackers who perpetrated the 9/11 attacks were from Saudi Arabia, Egypt, Lebanon, and the UAE?  Are U.S. embassies in those countries also revoking passports of Americans of local origins? The Times Square plot involved Faisal Shahzad, an American of Pakistani origin. Shoe bomber and self-proclaimed Al Qaeda member Richard Reid is a British citizen. If there is a new passport policy, is it universally applied to every country where there were terrorist plots hatched or where the attackers trained or originated?  (A side note — A couple of years ago, the UK stripped British citizenship from 16 individuals who had dual nationality because they were considered to pose a threat to the UK. In 2011, more than 50 Australians have had their passports revoked or refused to prevent them from going overseas for “terrorist training holidays).”

But — that does not seem to be the case here or we would have heard more about this. So what is it? Why Yemen in particular? And how come this appears to be happening only in the last year or so?

Fraud Overload?

In 2010, the State Department estimated the number of U.S. citizens in Yemen at  over 55,000. According to State/OIG, U.S. citizenship is highly valued in Yemen. “Fathers can receive up to $50,000 (45 times the per capita Gross Domestic Product) as a bride price for a U.S.-citizen daughter. As a result, parents often claim children as their own who are in fact from other families, in order to fraudulently document the children as U.S. citizens and use them as a potential source of income.”

A 2009 Fraud Summary floating around the net describes Yemen as having a “pervasive fraud environment.” At that time, the embassy estimated that two-thirds of  its immigrant visa cases (IV) were fraudulent and  that the embassy considered all cases fraudulent until proven otherwise.  Post also used DNA testing and bone age testing to ensure that only qualified children of U.S.citizens receive passport benefits.  So is the passport processing time, lengthly and complicated in Yemen exacerbated by fraud overload?

Muckrock.com, by the way, has filed an FOIA of the Fraud Summary for Sanaa last year and we’re still waiting for that to show up online.

Staffing Shortages?

The American Citizen Services Unit of an embassy handles among other things Emergency Services to U.S. Citizens Abroad, and Citizenship and Nationality cases.  Due to the more complicated nature of these cases, the unit is typically staff by a mid-level officer and local employees.  The unit, almost always, depending on the workload include one entry level officer who is typically on a 3-6 month job rotation in the ACS unit.  Another component of the consular operation is the Fraud Manager, who often times, is also a first or second tour officer, complemented by local staff and in some cases a Regional Security Officer-Investigator (RSO-I). At the time of the IG inspection, the Fraud Unit was staffed by two LE staff members, a part time ARSO-I, a part-time, first-tour vice consul, and no full-time Fraud Manager.

The State/OIG 2010 report on Yemen especially noted that “staffing shortages and backlogs increase the risk to U.S. homeland security caused by pervasive fraud and the threat of terrorism.” Subsequent to the inspection, we understand that the embassy hired an eligible family member as a Fraud Manager and also hired a local fraud analyst.  The situation in Yemen has progressively become more difficult in the last several years. Sana’a has been designated a 30% danger post since 2008.  In 2013, it became a 30% hardship post.  Under the circumstances, can you imagine the staffing shortages improving significantly?

Anyway, we don’t know exactly what’s going on here except that the “situation has been reviewed.” It is doubtful that the Bureau of Consular Affairs will provide some clarity on what’s going on with passport revocations in Yemen but we think it should.  It ought to also provide guidance on how to file an appeal in revocation cases.  Embassy Yemen does not provide any instruction online on this regard.  If limited staffing at post has exascerbated  the processing backlog, perhaps CA who has tons of consular funds should consider additional temporary staffing at a nearby post to help address the problem.

Maybe State’s ace in a hole is  Haig v. Agee, (1981) which upheld the right of the executive branch to revoke a citizen’s passport for reasons of national security and the foreign policy interests of the U.S. under the Passport Act of 1926.  But — if these revocation are only happening in Yemen, might not all this end up in court as individual lawsuits or as a potential class action depending on actual number of people impacted?  

* * *

Enhanced by Zemanta

State Dept Restores Blog, But All’s Not Well – Whatareyougoingtodoaboutit?

When I left to run errands around noon yesterday, Jen’s blog, The Dinoia Family has been restored in the blog roll of careers.state.gov.

By the time I was back online briefly late afternoon, there’s this note from  Jeffrey Levine, the outgoing Director of Recruitment, Examination and Employment(HR/REE).  Mr. Levine is also President Obama’s nominee to be the next Ambassador to Estonia.

To our Bloggers:
As you can see, we have re-linked to Jen Dinoia’s blog and sincerely regret any offense we caused. We appreciate all your efforts to share your personal Foreign Service experiences (writ large) and are pleased to offer them a wider audience. We will certainly try to be more sensitive in future decisions regarding placements. Thanks again for your efforts and your service.
– Jeff Levine, Director of Recruitment, Examination and Employment

WaPo has already picked up this blog restoration story, and has updated its article with Mr. Levine’s note and a quote from the State Dept’s spokesman Mark Toner:

Earlier, in a statement to The Post, State Department spokesman Mark C. Toner said the blog “has been restored” on the State Department’s recruitment page. “It had been taken down as part of a periodic effort by a contractor to review and freshen the blog links on the site.”

But the statement was at odds with what Dinoia was told in an e-mail early this week by a recruiting and marketing consultant for the agency when she discovered her blog had been removed from the State Department blogroll.

So this tempest should be done already, yes? I think – folks of a certain pay grade over at Foggy Bottom are betting that if Nipplegate, to borrow the term from another blogger, can be the FS bloggers’ quick win, then it will go swiftly away by the next news cycle.  The less than 24-hour restore time is quite amazing, but then, that’s the idea of a rapid response; so folks stop blogging about nipples already and you over there can stop snickering, too.

Hold on … not so fast, I’m trying to catch my breath here.

First, an FSO who commented in this blog politely writes, “I don’t get how “censorship” was introduces into Ms. Dinoia’s case. No one is telling her to stop talking. She was taken off a blog roll.”

And I have to agree he has a point.  It is the State Department’s blog. And like the blog roll I have in Diplopundit’s side bar, I have my bloggy reasons for selecting the links I’ve put up there.   Jen herself writes:

“No, it’s not my list.  Yes, they can update the list anytime they want.  However, they came to me.  They asked me to participate and I felt a little notice or a reasonable explanation as to why I was removed was not out of the question.”

So while “nipple” may have been the offending word, no one from the State Department actually told Jen to stop blogging about nipples, no one actually censored or prevented her from exercising her right to free speech. I should make that clear.  Will you buy that? Okay, fine, let’s not call it censorship.  They just ditched her blog, a catalog of a Foreign Service life that is so personal it would not — what’s the word? resonate. Would not resonate. More than being removed from the blog roll, I think that’s the one that was most hurtful.

FS spouses who at one time or another have heard themselves referred to as “just a spouse” were struck by online lightning. And so, the reactions were immediate and not at all surprising.

But we also know that even if we don’t call this incident an act of censorship by the State Department, the State Department has selectively censored blogs for various reasons.  They refused to call it censorship, of course, because that is such a bad word.  Censorship is something that Iran, or China or North Korea does, but not the oldest cabinet agency of the United States.  Such BS. They clubbed this one twice. Twice. Others do not need more career-aches, so will not be dragged across this blog.

And because the State Department does not do censorship, it will not tell FSOs in writing to shut down their blogs (Van Buren excepted). Adverse actions are paperless, warnings are behind closed doors, and in its wake, some folks were nudged into retirement, some assignments broken, spouses scared out of their wits on what this would do the careers of their loved ones. And the “chilling effect” is just that, chiiillllll out! One could vigorously argue that if you don’t like the free speech restrictions imposed on you, then you can find a job elsewhere. I imagine that’s a similar argument given to women who complained of discrimination not too long ago and we know how that turned out.

Here is another FSO who blogged specifically about the larger picture:

What State did with Jen’s blog – and especially the response sent to her email – may have been insensitive and ill-advised, but it wasn’t censorship. Jen’s blog will live on and delight its readers whether State links to it or not. However, that doesn’t mean censorship isn’t a problem in the FS blogging world. People DO get pressured to stop blogging by bosses or coworkers. Their jobs, their livelihoods get threatened because of their blogs. Not mine thank god, at least not yet, but it happens. Those blogs go dark, and that’s where the censorship charge starts to be more realistically applied. THAT’s where the risk is. THAT’s where the battle is. Let’s not make a mountain out of a molehill when the mountain’s already there.

And she is right, of course. In fact, that mountain is right there – it’s called Peter Van Buren. Until he wrote that critical book, he was a respectable member of the Foreign Service community.  He followed the book clearance procedure in the regs, and State broke its own rules. Instead of admitting this mistake, it went after him. Instead of addressing the content of his book, it went after him. Since he is retiring in September, what other reason is there for pursuing him in such dedicated fashion except to make him a memorable example? He is by no means, the only one, he’s just the most public one willing to put up a fight.

The ACLU says that it is easy to defend freedom of speech when the message is something that many people find reasonable. I think that’s right on target.  But also when the speaker is cuddly, likeable, not abrasive as emery board — that defense is easy.

But of course, we cannot defend freedom of speech then pick and choose which parts of speech we want to protect. But … but, he writes about the dirtiest laundry, and he seems always angry and he uses such colorful, offensive language and etc. etc… and that all may be true but isn’t the defense of freedom of speech most critical when the message is one most people find disagreeable?  In Mr. Van Buren’s case, a message that most members of the Foreign Service find disagreeable.  Still, Mr. Van Buren’s protected speech is every FSO’s protected speech.

But you say, you’re nothing like him. Or you will never be like Peter Van Buren, described in one blog as “the most recent State Department “white blood cell” looking to do to some institutional housecleaning at Foggy Bottom.” I’m sure Mr. Van Buren did not imagine himself like this 20 years ago.  How can you see what life is like 20 years down the road? It bears repeating that what the State Department is doing to Mr. Van Buren, it can easily do to anyone in the Foreign Service. As Madam le Consul used to say, repeat, rinse.

So here’s some food for thought — if we were offended that the word “nipple” caused Jen’s blog to be ditched from the official blog list, shouldn’t all of us be concerned that State requires clearances for every blog post, every tweet, every sneeze coming from Mr. Van Buren, and Mr. Van Buren alone?

To paraphrase Chomsky — if you believe in freedom of speech, you believe in freedom of speech even for views you don’t like.

Mr. Van Buren’s late and sudden non-adherence to a shared social code of Foreign Service life never to wash dirty laundry in public, and for crossing the boundaries of polite expression so valued in the diplomatic service makes him an FSO-non grata in most parts of the Foreign Service community.  But if the members of the community are only willing to defend the views that they like, wouldn’t they, too, be guilty of censorship by consensus?

Domani Spero

Breaking News: State Dept Does Not/Not Like Nipples Nor Damn ACLU Letter

The Foreign Service blog community lit up today with the State Department’s brainless judgement and censorship in action.

A community manager or two running the blog roll at careers.state.gov (managed by the Bureau of Human Resources) has removed the blog of EFM, Jen Dinoia from the list (see The Dinoia Family).

Brainless.  Not only is Jen a spouse of a Diplomatic Security Officer whose family have been in the Service for 14 years, she was diagnosed with breast cancer while her FS husband was in Iraq. She blogged about about her brave fight in her blog, about having a spouse on an unaccompanied tour, and more. Oh, and her husband will soon be on his second unaccompanied tour.

When she asked about the removal of her blog from the list, she received the following response:

Hopefully, you can understand that some topics covered in your blog are very personal in nature, e.g. nipple cozies, and wouldn’t necessarily resonate with the majority of potential candidates who are interested in learning about the FS life overseas. Through our years of recruitment experience, we found that FS prospects want to learn more about the work that’s conducted, the people and cultures with whom they will interact, the travel experiences, and the individual stories our employees* have to share.  

Hopefully, you can see the bureaucratic idiocy on display here. These community managers excuse me, recruitment experts, do not/not know what massive beehive they’ve wandered into.

Nipples (album)

Nipples (album) (Photo credit: Wikipedia)

So the State Department folks do no like talk about nipples on the FS blogs it puts in its blog roll. Dammit, who’s giving these folks guidance over there?

If there’s one blog that shows how the State Department has taken care of an employee and his family in a medical emergency, or how the FS community rallied and supported one of its own during one of the most challenging times in a woman’s life, or how a diplomatic spouse juggles life when the employee is off on a year-long assignment in a war zone,  that’s Jen’s blog.  So if these recruitment experts with blog roll pruning scissors actually got beyond the N-word, they wouldn’t have ditched this excellent recruitment material. But they did, which calls into question their expertness.

Dear State Department, if you need to ditch a blog due to offending words like “nipple”, don’t do it the day after you get an ACLU letter talking about first amendment rights.

Because there’s that item about the ACLU writing a letter to the State Department on behalf of FSO, Peter Van Buren, who posted it in the Secretary’s Sounding Board, where it was reportedly flagged with the following:

The State Department has classified the ACLU letter and issued a warning to its busy workers in the hive not to read the letter: “federal employees and contractors who believe they may have inadvertently accessed or downloaded this letter without prior authorization, should contact their information security offices for assistance.”

Here’s what the moderator said:

“The Sounding Board wasn’t designed to handle individually-specific cases, or cases that are under formal review of any sort. Our publishing guidelines state this, but more honestly, there are issues that are much bigger than our two moderators can handle. And yours is one of them. We have to let the procedures set in place, that you’re exercising, run their course.”

This is what happens when you take that slippery slope, it’s like a humongous snowball with no brakes implanted.  If nipples and the ACLU are no good, what’s next, toucans?

One of our blog readers sent this piece with her gotcha quiz:

I see little evidence that this is anything but a cultural difference anchored time. Whereas Defense moved forward, State has remained in the past. Look at the advanced relationship Defense has with social media and even empowerment of its people to engage directly. Compare that with State’s increasing attempts to centralize control of social media and overall public engagement.

In Defense, authorities and lanes are clear. In State, they are fuzzy and mostly dependent on personalities and relationships. Which agency is more effective?

Which agency is more effective?

Why, that’s a no brainer, of course. The one that scrubbed nipples and damn nosy ACLU with its eye-opening letter to bureaucrats from the Internets!

Domani Spero

Updated @14:38 corrections on apparent grammar, spelling bo-bos added.

Updated @22:27 with additional material

 

 

State Dept v. Peter Van Buren: ACLU Gets Into the Ring Over First Amendment Right

If you have been reading this blog for a while, you know that I’ve been following Peter Van Buren’s case for some time.  While I do not always agree with everything that Mr. Van Buren says and writes, I am offended by his selective treatment by the State Department that can only be described as retaliatory.

Mr. Van Buren, of course, is not the only recipient of such selective treatment in the State Department.  He’s just the loudest and the most vocal Exhibit A under the 21st Century Statecraft tab.  Other FSOs and family members have been similarly penalized for running afoul of  the department’s movable blogging and social media rules. One I know for sure, have been pushed into retirement, others suffer consequences in future assignments. Even non-blogging FSOs were threatened for the blogging activities of their spouses. For sure, very few threats come in written form but in a culture where corridor reputation is key to every assignment, no written memo is needed to screw up a future assignment in the Foreign Service.

On May 15, the American Civil Liberties Union (ACLU) got into the ring in Mr. Van Buren’s public fight with the State Department.  ACLU, the 92 year old institution told the State Department, the first agency created under our Constitution that “public employees don’t give up their First Amendment rights in exchange for a job with the government.”

The ACLU writes in its blog:

[T]he State Department has proposed firing Mr. Van Buren under the guise of a procedural rule, creating the strong appearance of unlawful retaliation. Government employees have the First Amendment right to speak as private citizens on matters of public concern. There’s no question that the subject of Mr. Van Buren’s book, blog posts, and news articles — the reconstruction effort in Iraq — is such a matter. And, government employees are often in the best position to know what ails the agencies that they work for.
[…]
The State Department is attempting to justify the firing by claiming that Mr. Van Buren failed to comply with the agency’s prepublication review policy. The State Department’s policy requires all employees to submit everything they write for prepublication review, regardless of whether they are writing in their official or personal capacity. This policy, especially as applied to blog posts and articles, raises serious constitutional questions. By forcing employees to submit all their writings for prepublication review — even articles and blog posts written on their own time — the State Department is effectively shutting its employees out of any meaningful participation in critical public debates. There is no justification for such an expansive prior restraint.

Continue reading, The First Amendment Applies to Foreign Service Officers, Too.

But writing a blog post is not enough.  The ACLU also wrote a letter to Patrick F. Kennedy, the Under Secretary for Management with courtesy copies to Linda Thomas-Greenfield, the Director General of the Foreign Service and Director of Human Resources; Jesselyn Radack & Kathleen McClellan, Government Accountability Project (who represents Mr. Van Buren in his Office of Special Counsel case) and Raeka Safai of the American Foreign Service Association.

Below is an excerpt from ACLU’s letter to Mr. Kennedy:

This proposed termination for Mr. Van Buren’s speech raises substantial constitutional questions and creates the appearance of impermissible retaliation for Mr. Van Buren’s criticism of the State Department. The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the government’s interest, as employer, in the orderly operation of the public workplace and the efficient delivery of public services by public employees. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

The government bears an even greater burden of justification when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”). By those standards, the State Department’s actions here appear to be unconstitutional.
[…]
The Supreme Court has repeatedly held that public employees retain their First Amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). In his book, blog posts, and articles, it is clear that Mr. Van Buren is speaking in his own voice and not on behalf of the State Department. Writing blog posts and articles from home, on his own time and on his personal computer, is a paradigmatic example of speech that public employees may legitimately engage in as private citizens. Pickering, 391 U.S. 563 (unconstitutional to discipline teacher for writing letter to the editor); Garcetti, 547 U.S. at 423 (citing op-eds as private citizen speech).

On prospective restrictions for all present and future diplomats, the ACLU writes:

[T]he State Department’s pre-publication review policy, as applied to blog posts and articles, raises serious constitutional questions. Through its policy, the State Department is prospectively restricting the speech of Mr. Van Buren as well as all present and future State Department employees. Where, as here, the restriction limits speech before it occurs, the Supreme Court has made clear that the government’s burden is especially heightened. NTEU, 513 U.S. at 468. The State Department must show that the interests of potential audiences and a vast group of present and future employees are outweighed by that expression’s necessary impact on the actual operation of government. Id. Courts have also required careful tailoring of prospective restrictions to ensure they do not sweep too broadly and that they actually address the identified harm. Id. at 475. Given this heightened standard, it is highly unlikely that the State Department could sustain its burden of  demonstrating that its policy is constitutional.

There is no justification for such an expansive prior restraint on State Department  speech. The State Department’s policy affects all employees and is broadly written to include all “matters of official concern.” This encompasses a vast amount of speech – including Mr. Van Buren’s and that of numerous other State Department bloggers – that would in no way harm the “actual operation of the government.” The overbreadth of the State Department’s policy is abundantly clear when compared with the practice of the Department of Defense. Hundreds of active-duty soldiers, many with access to classified and sensitive information, post articles and maintain personal blogs without pre-clearance and without posing any harm to military operations.

Further, the State Department’s pre-publication requirement covers even more speech than necessary to serve the government’s stated interests –to protect classified information and to prevent views of employees from being improperly attributed to the government. 3 FAM 4172.1-1. As such, the policy is not carefully drawn to ensure that it does not unnecessary chill a vast amount of protected speech, nor is it tailored to address the identified harm. See Harman v. City of New York, 140 F.3d 111, 123 (2d Cir. 1998).

You can read the entire letter from the ACLU to Mr. Kennedy here.

The ACLU makes a very compelling argument and I think for the first time, the constitutionality of that broad umbrella of all “matters of official concern” take center stage. It’s a good thing to shine a light on that dark folder. Let’s see what happens.

On a related note, the American Foreign Service Association (AFSA) in February released its guidance for personal use of social media.   The union represented Mr. Van Buren in his grievance case within the State Department but has been largely silent in this very public fight.  Mr. Van Buren has now asked  AFSA if the union is willing to press State into a rational set of regulations on social media:

“We all know that many FSOs and their spouses/partners have been unofficially penalized for blogging, and pushed into going off line. At the same time, we also know there are many, many blogs out there by FSOs and others and that the number grows. Anyone think social media is going to be less a part of life in the next ten years?

I have taken an extreme position on these issues, and know that you have not always (or often?) agreed with what I wrote. That is in fact how it should be, because the issue at hand should not be about the content per se, but the right to write it.

I fully agree that State needs rules about social media; they currently really have none that are realistic and implementable and in fact are considered unconstitutional by America’s leading First Amendment group.

Would AFSA now be willing to make a public statement along these lines and use my case to press State into a rational set of regulations on social media?

So — I’m sitting here, after midnight, pondering — is AFSA up for this challenge? Guess, we’ll have to wait and see …

Domani Spero