@StateDept may soon get the ‘security clearance suspension without pay’ hammer, it’s a baaad idea

Posted: 1:02 am PT
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In addition to some 40 reports a year mandated by the 2016 authorization bill, it also includes a troubling provision for suspension without pay (SWOP) whenever the security clearance of a Foreign Service member is suspended. Not just for suspension for national security reasons anymore. If this bill is signed into law, won’t the State Department be able to put any employee on suspension without pay, at any time, for any reason?

We blogged about this last year:

The most widely reported FSO with a suspended clearance in recent memory is Peter Van Buren whose TS clearance was suspended for about a year. Under this proposed bill, PVB would not have been assigned to a telework position or paid for the duration of his fight with the State Department. Which means he and others like him would have to quit and find a paying job or starve unless he/she has a savings account that can sustain the investigation for a year or years.

Any FS employee who might dissent or engage in whistleblowing activity, any perceived troublemaker for that matter, can be put on SWOP, and that would be it.  An FSO who experienced first hand the suspension of a security clearance put this in very stark terms:

In practical terms they can remove the employee instantly, without telling anyone why until much later, by which time the employee will have resigned unless they can afford to go for months or years without a salary. And once the employee has resigned, the case is closed, the former employee loses their clearance because they resigned, and with it any right to know the reasons for the suspension. If the employee quits, the Department does not have to justify itself to anyone, and if the Department doesn’t have to pay them, 99.9 percent will quit.

The bill provides for a “reasonable time to respond orally and in writing to the proposed suspension” — members of the Foreign Service assigned to duty in the United States will get 15 days after receiving notice of the proposed suspension; members of the Foreign Service assigned to duty outside the United States will 30 days after receiving notice of the proposed suspension. It also provides for what appears to be a very limited review by the Foreign Service Grievance Board (FSGB).

via reactiongifs.com

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An insider told us that basically any dissenter can be taken off the payroll almost at will, just by putting a national security spin on their dissent – which apparently can be quite easy to do.

Word has it that this has been on the State Department’s wish list since at least the Rice tenure as secretary of state. So now, it’s here and if it’s passed, it will add a new layer of chill to an already risk averse organization.

It is important to note that the investigation to a security clearance suspension can go on for years. A lawyer who has represented FS employees on security clearance cases, J. Michael Hannon writes on FSJ:

Under State Department regulations and established law, the Bureau of Diplomatic Security has the sole authority to determine whether your security clearance should be suspended on the basis of “all facts available upon receipt of the initial derogatory information.” The standard to be applied is to determine whether it is “in the interests of national security” to continue your security status or to suspend it.

The regulations further provide that DS investigations must be “reported in a timely manner” and issues requiring temporary suspension of clearance must be resolved “as quickly as possible (normally within 90 days).” The department is, however, permitted to continue suspension of an individual’s clearance “until the relevant issues have been fully resolved.” If that seems open-ended, it is.

Employees are already afforded just “minimal due process” (typically a notice and an opportunity to respond) in these security clearance investigations.  Apparently, there are “no rules of evidence that pertain to a DS investigation or restrain its conclusions.”  So when investigations can go on for a year, or two, or even several years as in some cases, which employee can sustain on an indefinite no work and no pay arrangement? An employee overseas given 30 days to respond, some with no housing or families in the DC area, will have to deal with the suspension, and relocation of self and family members at the same time.  Posts will have to deal with staffing gaps.

If the organization wants to get rid of an employee — for whatever reason — what’s the incentive to resolve the suspension quickly when given enough time, most employees will be forced to quit under these circumstances?

Not only that, we can already imagine several scenarios where hostile security services can undermine our diplomatic service by a well-placed rumor or allegation here and there while availing of this prospective hammer.

S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 passed the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016).  The House needs to pass it as well, and we haven’t been able to find the House bill.  However, on April 29, the Senate did send a message to the House requesting its concurrence to the FY16 authorization bill.  The bill is currently held at the desk for floor action; it doesn’t look like the House will be back in session until May 10.

Read the bill via congress.gov, the congressional record in PDF or as TEXT here. Below is the text on the security clearance suspension provision:

SEC. 216. SECURITY CLEARANCE SUSPENSIONS.

(a) Suspension.—Section 610 of the Foreign Service Act of 1980 (22 U.S.C. 4010) is amended—

(1) by striking the section heading and inserting the following:

“SEC. 610. SEPARATION FOR CAUSE; SUSPENSION”; AND

(2) by adding at the end the following:

“(c) (1) In order to promote the efficiency of the Service, the Secretary may suspend a member of the Service without pay when—

“(A) the member’s security clearance is suspended; or

“(B) there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed.

“(2) Any member of the Foreign Service for whom a suspension is proposed under this subsection shall be entitled to—

“(A) written notice stating the specific reasons for the proposed suspension;

“(B) a reasonable time to respond orally and in writing to the proposed suspension;

“(C) representation by an attorney or other representative; and

“(D) a final written decision, including the specific reasons for such decision, as soon as practicable.

“(3) Any member suspended under this subsection may file a grievance in accordance with the procedures applicable to grievances under chapter 11.

“(4) If a grievance is filed under paragraph (3)—

“(A) the review by the Foreign Service Grievance Board shall be limited to a determination of whether the provisions of paragraphs (1) and (2) have been fulfilled; and

“(B) the Board may not exercise the authority provided under section 1106(8).

“(5) In this subsection:

“(A) The term ‘reasonable time’ means—

“(i) with respect to a member of the Foreign Service assigned to duty in the United States, 15 days after receiving notice of the proposed suspension; and

“(ii) with respect to a member of the Foreign Service assigned to duty outside the United States, 30 days after receiving notice of the proposed suspension.

“(B) The terms ‘suspend’ and ‘suspension’ mean placing a member of the Foreign Service in a temporary status without duties and pay.”.

(b) Clerical Amendment.—The table of contents in section 2 of such Act is amended by striking the item relating to section 610 and inserting the following:
“Sec. 610. Separation for cause; suspension.”.

 

Related item:

SECURITY CLEARANCES: KNOW YOUR RIGHTS (PDF)

Related posts:

 

 

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(S.1635) Sec. 604. Protecting the Integrity of Internal Investigations #DOSAA16

Posted: 12:44 am PT
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S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 passed the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016).  The House needs to pass it as well, and we haven’t been able to find the House bill.  However, on April 29, the Senate did send a message to the House requesting its concurrence to the FY16 authorization bill.  The bill is currently held at the desk for floor action; it doesn’t look like the House will be back in session until May 10.

Read the bill via congressional record in PDF or as TEXT here. Below is the section on protecting the integrity of internal investigations and reporting requirements from State Department bureaus, posts and offices to the Office of Inspector General. Note the provisions on investigations as they relate to the Bureau of Diplomatic Security:

 

SEC. 604. PROTECTING THE INTEGRITY OF INTERNAL INVESTIGATIONS.

Section 209(c)(5) of the Foreign Service Act of 1980 (22 U.S.C. 3929(c)(5)) is amended by inserting at the end the following new subparagraph:

“(C) Required reporting of allegations and investigations and inspector general authority.–

“(i) In general.–Each bureau, post or other office (in this subparagraph, an `entity’) of the Department of State shall, within five business days, report to the Inspector General any allegations of–

“(I) waste, fraud, or abuse in a Department program or operation;

“(II) criminal or serious misconduct on the part of a Department employee at the FS-1, GS-15, GM-15 level or higher;

“(III) criminal misconduct on the part of any Department employee; and

“(IV) serious, noncriminal misconduct on the part of any individual who is authorized to carry a weapon, make arrests, or conduct searches, such as conduct that, if proved, would constitute perjury or material dishonesty, warrant suspension as discipline for a first offense, or result in loss of law enforcement authority.

“(ii) Inspector general authority.–The Inspector General may, pursuant to existing authority, investigate matters covered by clause (i).

“(iii) Limitation on investigations outside of office of inspector general.–No entity in the Department of State with concurrent jurisdiction over matters covered by clause (i), including the Bureau of Diplomatic Security, may initiate an investigation of such matter unless it has first reported the allegations to the Inspector General as required by clause (i), except as provided in clause (v) and (vi).

“(iv) Cooperation.–If an entity in the Department of State initiates an investigation of a matter covered in clause (i) the entity must, except as provided in clause (v), fully cooperate with the Inspector General, including–

“(I) by providing to the Inspector General all data and records obtained in connection with its investigation upon request of the Inspector General;

“(II) by coordinating, at the request of the Inspector General, such entity’s investigation with the Inspector General; and

“(III) by providing to the Inspector General requested support in aid of the Inspector General’s oversight and investigative responsibilities.

“(v) Exceptions.–The Inspector General may prescribe general rules under which any requirement of clause (iii) or clause (iv) may be dispensed with.

“(vi) Exigent circumstances.–Compliance with clauses (i), (iii), and (iv) of this subparagraph may be dispensed with by an entity of the Department of State if complying with them in an exigent circumstance would pose an imminent threat to human life, health or safety, or result in the irretrievable loss or destruction of critical evidence or witness testimony, in which case a report of the allegation shall be made not later than 48 hours after an entity begins an investigation under the authority of this clause and cooperation required under clause (iv) shall commence not later than 48 hours after the relevant exigent circumstance has ended.

“(vii) Rule of construction.–Nothing in this subparagraph may be interpreted to affect any duty or authority of the Inspector General under any provision of law, including the Inspector General’s duties or authorities under the Inspector General Act.”.

The bill’s other provisions related to the OIG and SIGAR are below:

Sec. 602. Competitive hiring status for former employees of the Special Inspector General for Iraq Reconstruction.
Sec. 603. Assurance of independence of IT systems.

Sec. 604. Protecting the integrity of internal investigations.

Sec. 605. Report on Inspector General inspection and auditing of Foreign Service posts and bureaus and operating units Department of State.

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S.1635: Title VI – Management and Accountability (FY2016)

Posted: 5:50 pm PT
Updated: May 3, 10:14 pm PT
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S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 passed the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016).  Below is Part 6 of 6 extracted from thomas.gov congress.gov for easier reading (oh, joy, the links timeout!). See below on what’s included but read the bill via congressional record in PDF or as TEXT here as alternative sources.


Sec. 601. Short title.

Sec. 602. Competitive hiring status for former employees of the Special Inspector General for Iraq Reconstruction.

Sec. 603. Assurance of independence of IT systems.

Sec. 604. Protecting the integrity of internal investigations.

Sec. 605. Report on Inspector General inspection and auditing of Foreign Service posts and bureaus and operating units Department of State.

 

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Related sections:

Part 1: S.1635: Title I – @StateDept Authorities and Activities (FY2016)
Part 2: S.1635: TITLE II–Organization and Personnel of the Department of State (FY2016)
Part 3: S.1635: TITLE III – International Organizations (FY2016)
Part 4: S.1635: Title IV – Consular Authorities (FY2016)
Part 5: S.1635: Title V – Embassy Security (FY2016)

Related posts:

 

S.1635: Title V – Embassy Security (FY2016)

Posted: 5:47 pm PT
Updated: May 3, 10:12 pm PT
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S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 passed the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016). Below is Part 5 of 6 extracted from thomas.gov congress.gov for easier reading (oh, joy, the links timeout!). See below on what’s included but read the bill via congressional record in PDF or as TEXT here as alternative sources.


Sec. 501. Worldwide security protection.

Sec. 502. Embassy security, construction and maintenance.


Sec. 511. Local guard contracts abroad under diplomatic security program.

Sec. 512. Disciplinary action resulting from unsatisfactory leadership in relation to a security incident.

Sec. 513. Management and staff accountability.

Sec. 514. Security enhancements for soft targets.


Sec. 521. Additional reports on expansion and enhancement of Marine Corps Security Guard Program.


Sec. 531. Designation and reporting for high threat, high risk posts.

Sec. 532. Designation and reporting for high-risk counterintelligence threat posts.

Sec. 533. Enhanced qualifications for Deputy Assistant Secretary of State for high threat, high risk posts.

Sec. 534. Security environment threat list briefings.

Sec. 535. Comptroller General of the United States report on implementation of Benghazi Accountability Review Board recommendations.

Sec. 536. Foreign Affairs Security Training Center.

Sec. 537. Language training.


Sec. 541. Provision of copies of accountability review board reports to Congress.

Sec. 542. Staffing.

 

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Related sections:

Part 1: S.1635: Title I – @StateDept Authorities and Activities (FY2016)
Part 2: S.1635: TITLE II–Organization and Personnel of the Department of State (FY2016)
Part 3: S.1635: TITLE III – International Organizations (FY2016)
Part IV: S.1635: Title IV – Consular Authorities (FY2016)

Related posts:

S.1635: Title IV – Consular Authorities (FY2016)

Posted: 5:41 pm PT
Updated: May 3, 10:07 pm PT
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S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 passed the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016).  Below is Part 4 of 6 extracted from thomas.gov congress.gov for easier reading (oh, joy, the links timeout!). See below on what’s included but read the bill via congressional record in PDF or as TEXT here as alternative sources.


Sec. 401. Visa ineligibility for international child abductors.

Sec. 402. Presumption of immigrant intent for H and L visa classifications.

Sec. 403. Visa information sharing.

 

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Related sections:

Part 1: S.1635: Title I – @StateDept Authorities and Activities (FY2016)
Part 2: S.1635: TITLE II–Organization and Personnel of the Department of State (FY2016)
Part 3: S.1635: TITLE III – International Organizations (FY2016)

Related posts:

S.1635: TITLE III – International Organizations (FY2016)

Posted: 5:37 pm PT
Updated: May 3, 9:57 pm PT
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S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 passed the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016).  Below is Part 3 of 6 extracted from thomas.gov for easier reading (oh, joy, the links timeout!). See below on what’s included but read the bill via congressional record in PDF or as TEXT here as alternative sources.


Sec. 301. Reports concerning the United Nations.

Sec. 302. Annual report on financial contributions to international organizations.

Sec. 303. Report on peacekeeping arrears, credits, and contributions.

Sec. 304. Assessment rate transparency.


Sec. 311. Preventing abuse in peacekeeping.

Sec. 312. Inclusion of peacekeeping abuses in country report on human rights practices.

Sec. 313. Evaluation of United Nations peacekeeping missions.


Sec. 321. Encouraging employment of United States citizens at the United Nations.

Sec. 322. Ensuring appropriate United Nations personnel salaries.

 

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Related sections:

Part 1: S.1635: Title I – @StateDept Authorities and Activities (FY2016)
Part 2: S.1635: TITLE II–Organization and Personnel of the Department of State (FY2016)

 

Related posts:

 

 

S.1635: TITLE II–Organization and Personnel of the Department of State (FY2016)

Posted: 5:31 pm PT
Updated: May 3, 9:57 pm PT
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S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 passed the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016).  Below is Part 2 of 6 extracted from thomas.gov for easier reading (oh, joy, the links timeout!). See below on what’s included but read the bill via congressional record in PDF or as TEXT here as alternative sources.

 


Sec. 201. Rightsizing accountability.

Sec. 202. Integration of foreign economic policy.

Sec. 203. Review of Bureau of African Affairs and Bureau of Near Eastern Affairs jurisdictions.

Sec. 204. Special envoys, representatives, advisors, and coordinators.

Sec. 205. Conflict prevention, mitigation and resolution, and the inclusion and participation of women.

Sec. 206. Information technology system security.

Sec. 207. Analysis of embassy cost sharing.

Sec. 208. Parent advisory committee to the Interagency Working Group to Prevent International Parental Child Abduction.

Sec. 209. Improving research and evaluation of public diplomacy.

Sec. 210. Enhanced institutional capacity of the Bureau of African Affairs.


Sec. 211. Review of Foreign Service Officer compensation.

Sec. 212. Repeal of recertification requirement for senior Foreign Service.

Sec. 213. Compensatory time off for travel.

Sec. 214. Certificates of demonstrated competence.

Sec. 215. Foreign Service assignment restrictions.

Sec. 216. Security clearance suspensions.

Sec. 217. Economic statecraft education and training.

Sec. 218. Report on diversity recruitment, employment, retention, and promotion.

Sec. 219. Expansion of the Charles B. Rangel International Affairs Program, the Thomas R. Pickering Foreign Affairs Fellowship Program, and the Donald M. Payne International Development Fellowship Program.

Sec. 220. Retention of mid- and senior-level professionals from underrepresented groups.

Sec. 221. Review of jurisdictional responsibilities of the Special Representative to Afghanistan and Pakistan and the Bureau of South and Central Asian Affairs.

Sec. 222. Congressional notification of countries compliance with minimum standards for the elimination of trafficking.

Sec. 223. International religious freedom training program.
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Related sections:

Part 1: S.1635: Title I – @StateDept Authorities and Activities (FY2016)

 

Related posts:

 

 

 

S.1635: Title I – @StateDept Authorities and Activities (FY2016)

Posted: 5:27 pm PT
Updated: May 3, 9:57 pm PT
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S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 passed the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016).  Below is Part 1 of 6 extracted from thomas.gov for easier reading (oh, joy, the links timeout!). See below on what’s included but read the bill via congressional record in PDF or as TEXT here as alternative sources.


Sec. 101. American spaces review.

Sec. 102. Identifying bilateral investment treaty opportunities.

Sec. 103. Reinstatement of Hong Kong report.

Sec. 104. Interagency hostage recovery coordinator.

Sec. 105. United States-China Strategic and Economic Dialogue review.

Sec. 106. Report on human rights violations in Burma.

Sec. 107. Combating anti-semitism.

Sec. 108. Biotechnology grants.

Sec. 109. Definition of “use” in passport and visa offenses.

Sec. 110. Science and technology fellowships.

Sec. 111. Name changes.

Sec. 112. Anti-piracy information sharing.

Sec. 113. Report reform.

Sec. 114. Sense of Congress on the United States alliance with Japan.

Sec. 115. Sense of Congress on the defense relationship between the United States and the Republic of India.

Sec. 116. Sense of Congress on the United States alliance with the Republic of Korea.

Sec. 117. Sense of Congress on the relationship between the United States and Taiwan.

Sec. 118. Report on political freedom in Venezuela.

Sec. 119. Strategy for the Middle East in the event of a comprehensive nuclear agreement with Iran.

Sec. 120. Department of State international cyberspace policy strategy.

Sec. 121. Waiver of fees for renewal of immigrant visa for adopted child in certain situations.

Sec. 122. Sense of Congress on anti-Israel and anti-Semitic incitement within the Palestinian Authority.

Sec. 123. Support for the sovereignty, independence, territorial integrity, and inviolability of post-Soviet countries in light of Russian aggression and interference.

Sec. 124. Russian propaganda report.

Sec. 125. Approval of export licences and letters of request to assist the Government of Ukraine.


Sec. 131. Atrocities prevention board.

Sec. 132. United States engagement in the Indo-Pacific.

Sec. 133. Joint action plan to combat prejudice and discrimination and to foster inclusion.

Sec. 134. Report on developing country debt sustainability.

Sec. 135. United States strategy to prevent and respond to gender-based violence globally.

Sec. 136. International corruption and accountability.

Sec. 137. Quadrennial diplomacy and development review.

Sec. 138. Disappeared persons in Mexico, Guatemala, Honduras, and El Salvador.

Sec. 139. Report on implementation by the Government of Bahrain of recommendations from the Bahrain Independent Commission of Inquiry.

Sec. 140. Report on United States humanitarian assistance to Haiti and whether recent elections in Haiti meet international election standards.

Sec. 141. Sense of Congress with respect to the imposition of additional sanctions against the Democratic People’s Republic of Korea.

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