State/OIG Finds @StateDept Revoked Security Clearance in Retaliation For Whistleblowing

 

Via State/OIG

OIG did not substantiate any allegations of whistleblower retaliation related to Department contractors or grantees. However, OIG did substantiate an allegation of a security clearance revocation in retaliation for whistleblowing activity under PPD-19. As required by the Foreign Affairs Manual, OIG reported its findings to the Under Secretary for Management. The report recommended that the whistleblower’s security clearance be reinstated.

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Presidential Policy Directive-19 (PPD-19) PDF

The brief note from State/OIG’s semi-annual report includes little details about a security clearance revocation, not suspension. According to 12 FAM 233.4, suspension is an independent administrative procedure that does not represent a final determination and does not trigger the procedures outlined in 12 FAM 234, which includes revocation.  With revocation, the Department may determine that immediate suspension without pay from employment under 5 U.S.C. 7532 is deemed advisable.

After State/OIG’s referral to “M”, the Under Secretary for Management will reportedly transmit the IG materials to the Security Appeals Panel, “if one is convened in the matter, and to other Department officials as appropriate” according to the Foreign Affairs Manual.

Note that the State Department does not have a Senate-confirmed “M” as of this writing. We want to know if the security clearance is not reinstated per OIG recommendation.

State/OIG’s semi-annual report also does not include information on consequences for the individual/individuals who perpetrated the revocation of this whistleblower’s security clearance in retaliation for whistleblowing activity.

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A Sexual Assault Reporting Process Foreign Service Members Deserve: If Not Now, When? Attn: @JohnKerry #16days

Posted: 2:13 am ET
Updated: 11:47 am PT
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For victims/survivors of sexual assault, please see Sexual Assault in the Foreign Service — What To Do?  Consider below as a follow-up post to The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief.

The following is provided for general information that is intended, but not guaranteed, to be correct and up-to-date. Please do not consider the following legal advice as we are not lawyers; read the full necessary disclaimer below.

The Rape, Abuse & Incest National Network (RAINN) has the following sexual violence statistics:

  • On average, there are 288,820 victims (age 12 or older) of rape and sexual assault each year in the United States
  • Ages 12-34 are the highest risk years for rape and sexual assault
  • 90% of adult rape victims are female
  • 94% of women who are raped experience post-traumatic stress disorder (PTSD) symptoms during the two weeks following the rape.
  • 30% of women report PTSD symptoms 9 months after the rape.
  • 33% of women who are raped contemplate suicide.
  • The majority of perpetrators are someone known to the victim. Approximately 3 out of 4 of sexual assaults are committed by someone known to the victim

Rape notification rates differ depending on whether the victim know the perpetrator — those who knew a perpetrator were often less likely to report the crime, according to RAINN. A report (PDF) published by the National Sexual Violence Resource Center says that many survivors experience great difficulty in disclosing a sexual assault, especially when the perpetrator is known to the victim. The study is focused on rural America where “the propensity to not report may be reinforced by informal social codes that dictate privacy and maintaining family reputation. Sexual assaults in rural areas are mostly hidden crimes, hidden both intentionally and unintentionally by characteristics of a close-knit culture or an isolated lifestyle.”  Rural communities like small towns as places where “everybody knows everybody.” Sounds familiar?

A victim will have little anonymity. It means she, or a friend or family member is likely to be acquainted with or related to the perpetrator and that she may reencounter the perpetrator, even on a regular basis. Furthermore, “the closer the relationship between victim and assailant, the less likely the woman is to report the crime” (Hunter, Burns-Smith, Walsh, 1996). Studies have quite consistently pointed to the importance of the victim-offender relationship in affecting the propensity to report (Pollard, 1995; Ruback, 1993, Ruback & Ménard, 2001). In rural areas, law enforcement is likely to be part of the social network (Sims, 1988; Weisheit, Wells & Falcone, 1994; Weisheit, Wells & Falcome, 1995). This compounds the problem of reporting non-stranger sexual assaults.

We need to point out that in the Foreign Service, particularly overseas, Diplomatic Security law enforcement –as in rural communities and small towns — is part of the social network.

We should also note that a 2002 study by Lisak-Miller indicates (PDF) that a majority of the undetected rapists were repeat rapists. The repeat rapists averaged 5.8 rapes each.

According to the Callisto Project, which provides survivors with a confidential and secure way to create a time-stamped record of an assault in American campuses less than 10% of survivors will ever report their assault. Survivors wait an average of 11 months to report their assault to authorities and up to 90% of assaults are committed by repeat perpetrators.  Callisto’s CEO Jess Ladd told us that someday she would like to make available their product within other institutions (including companies and agencies) and to have a free version that anyone can use to store what happened.  But Callisto is not there yet.


Foreign Service Victims’ Concerns

Among the concerns we’ve heard so far are: 1) lack of clear reporting process, 2) confidentiality, 3) sexual assault response training, 4) potential conflict/undue pressure on investigators/managers who may be friends, colleague, or subordinates of perpetrators, and 5) lack of sexual assault data.

As we’re written here previously DOD and Peace Corps provide restricted and unrestricted reporting for victims, but that does not appear to be the case in the Foreign Service.  The State Department has over 275 posts in about 180 countries. The agency’s Diplomatic Security has Regional Security Offices in most locations but not all.  The State Department has previously told this blog that Diplomatic Security’s Office of Special Investigations  “receives and catalogues allegations and complaints. Allegations are neither categorized by location nor by alleged offense.” Which begs the question, how will the State Department know if it has sexual predators living among its various communities particularly overseas if it does not track these types of offenses?

Due to the lack of clear reporting process — except “report to RSO” or “contact OSI,” victims (as well as this blog) have no way to independently assess what reporting entails. We don’t know what kind of confidentiality is afforded the victims. Among other concerns and questions:

  • When we asked an FS assault victim if there is any good option for reporting sexual assault, we were told bluntly, “There is no good option. That’s what the predator knows.” 
  • When a victim reports to RSO overseas, we know that the RSO is supposed to contact State/OSI, but who else has access to that information?   Embassy/post leadership? Which officials in the embassy hierarchy?  Will the local Health Unit be informed? The CLO? State/MED? DS Command Center?  And will reporting victims be informed in advanced who their information will be shared with and the specific reason for sharing their information?
  • Do DS/OSI investigators travel to the location of the assault to investigate? Time and evidence collection are of the essence in sexual assault reporting.  If yes, how quickly?  Is there a have rapid response team? What should the victim do while waiting for the arrival of DS/OSI investigators? Not shower? Not go to work?
  • In countries where sexual assault victims are jailed for “promiscuity”, what is the State Department’s policy and recommendation to someone assaulted in a place where requesting a rape kit means going to jail? Would the Department work with local authorities to actually protect the victim from prosecution while DS investigates or would they just allow an already traumatized victim to get PNG’d and force them to pack up and leave?
  • How will the victim’s report be transmitted to DS/OSI? Via unclassified email? Via fax? Via phone? In the case of emails, what restricts that information from being forwarded with a click of a mouse, or the record being compromised intentionally or unintentionally?
  • How are victims’ reporting records protected?  What are the consequences for an employee/s with access to the victim’s report who shares it with an unauthorized entity or individual? What if it is shared with a colleague, or a friends, or a family member?
  • What kind of training do RSOs get to enable them to assist sexual assault victims overseas? “Does every single RSO in the world know a designated medical facility to process a rape kit?” Or for that matter, do Health Units at overseas posts even have this information available?
  • Victims who report to RSO or DS/OSI would like to know if the officers receiving their sexual assault reports represent the victims’ interests or State Department interests?
  • What support is available to victims? What can victims expect after they report their assaults?  What consequences will their reporting have on their medical clearance and assignments? What kind of work accommodation will be extended to them, if needed? Who will be their effective has the responsibility to advocate for them if they need to file workers’ comp from the Department of Labor?
  • How are perpetrators — who are not strangers — handled by the State Department?  This is not a hypothetical question.  An OIG investigation indicates that one security officer’s alleged sexual misconduct spanned 10 years and 7 posts.  In that case, the Department never attempted to remove the RSO from Department work environments where the RSO could potentially harm other employees.  DS agents investigating the 2011 allegations reported to DS management, in October 2011, that they had gathered “overwhelming evidence” of the RSO’s culpability.  These agents encountered resistance from senior Department and DS managers as they continued to investigate the RSO’s suspected misconduct in 2011. The OIG found that the managers in question had personal relationships with the RSO.  Folks who work at the State Department should ask questions like who are these senior Department and DS managers who allowed this to happen for 10 years and 7 posts?  Do they have other friends that they have similarly protected? What happened to the victims at 7 posts? What support were available to them?  What responsibility does the State Department have for not removing that employee despite overwhelming evidence of culpability?


FOIA Diplomatic Security’s sexual assault cables?

As readers here know, there is no official guidance in the FAM on reporting sexual assault in the Foreign Service (see The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief). We’ve requested the unclassified cables that were released by DS/OSI in 2015 and earlier this year on sexual assault reporting (15 State 71370;  15 State 79760;  and 16 STATE 5647all reportedly available at DS/OSI intranet). Since the information is unclassified and it could be useful information, we thought we could save time and money by requesting these through regular channels without having to FOIA them. We appreciate the efforts of those who were trying to obtain these for us through regular channels; we understand some folks worked through the weekend to attend to this requests. Thanks, folks!  Late Monday, we got word from a State Department spokesperson:

“Our thanks for your patience while the Department reviewed the practice of releasing State Department internal cables to members of the public or media. At this stage, a decision has been made that we are unable to release cables in this manner.”

Unbelievable! But it is what it is.  We need, therefore, to FOIA these unclassified cables. Given State’s FOIA processing record, we don’t expect to see these cables until 1-2-3-4 years down the road. We might be dead of heartbreak by then.


State/OIG Hotline and Office of Special Counsel

State/OIG has reiterated to us that that their office takes allegations of rape and sexual harassment very seriously and repeated the response they provided us back in August here.  Note that we have already been told that cases like this should not be reported to the OIG Hotline.  Read more here: Another Note About the Burn Bag–There’s No Easy Way of Doing This, Is There?.  State/OIG told us that Department employees who believe they have been subjected to whistleblower retaliation may contact OIG or the Office of Special Counsel (OSC). OIG can help the individual in understanding their rights and may investigate the retaliation, as well as alert the Department to any illegal reprisal.  State/OIG also said: “By no means do we want to discourage anyone from contacting our Hotline, but such a serious crime as a rape needs to be dealt with immediately and that’s why we recommend a call to local law enforcement.”

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

Posted: 4:14 am ET
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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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Domestic Assault, Reporting Requirement Under 2 FAM 272, and a Troublesome Comma

Posted: 4:22 am ET
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This is a grievance case about a domestic assault, an arrest, and a punctuation:

Grievant is a tenured FP-02 Financial Management Specialist, employed by the Department of State as a Regional Financial Management Officer at the REDACTED at the Executive Office of the REDACTED. He has been employed by the Department since 1997, serving both overseas and domestically.

On June 29, 2013, grievant was arrested in REDACTED on a charge of domestic assault against his wife. Grievant’s former wife reported this arrest to the Department; however, when grievant’s current spouse told authorities that the incident was a misunderstanding, the charges were dropped on July 22, 2013. On August 6, 2013, the Department of Diplomatic Security (DS) obtained a copy of the arrest report and began investigating grievant’s failure to report the incident.

DS issued a Report of Investigation (ROI), dated January 14, 2014 and on December 12, 2014, the Director of the Office of Employee Relations (HR/ERCSD) notified grievant of a proposal to suspend him for a period of five (5) calendar days without pay on a charge of Failure to Follow Policy, citing 12 FAM 272. Grievant submitted a written response to the proposal on February 20, 2015, claiming that he did not realize that he had to report the arrest because the regulation is not clear. In any event, he claimed, the arrest was reported by his ex-wife and the charges were dropped within weeks of the arrest. Finally, he claimed that the penalty was too harsh, in light of his confusion about the mandate. After reviewing grievant’s response, the Deciding Official concluded that grievant knowingly failed to report his arrest immediately after it occurred and that he was on notice of his obligation to report the arrest, both because of the “clarity” of the regulation and because grievant had previously made a mandatory report under this same provision in 2010. In the end, the Deciding Official did not credit the reasons offered by grievant and sustained the charge on April 3, 2015.

Grievant argues that the wording of 12 FAM 272 is “far from clear.” He contends that the Department’s construction of the regulation is unfair because it relies on either removing or ignoring punctuation that totally changes the meaning of the provision.

12 FAM 272 states in pertinent part:

b. Employees must immediately report information of a potentially . . . derogatory nature . . . concerning their . . .

(2) Adverse involvement with law enforcement agencies to include:

(a) Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed, or
(b) Arrests for “driving under the influence” [DUI] or “driving while intoxicated [DWI].

c. Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

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The Department argues that 12 FAM 272 b should be interpreted to require disclosures by cleared employees of any and all arrests, including two traffic offenses — DUI and DWI. The only exception to this rule of mandatory disclosure, according to the Department, is that an employee is not required to disclose “minor traffic violations for which a fine or forfeiture of $150 or more is imposed.”

The agency contends that this regulation required grievant to disclose the fact of his arrest for domestic assault because it was not for a minor traffic violation. The Department concedes that “the specifics of 12 FAM 272(b) could be more precisely worded,” and “the wording of 12 FAM 272(b) could be improved,” but insists that grievant had sufficient notice that he was  required to report his arrest. The Department lastly argues that under both sections 272 b and 272 c, grievant should have reported his arrest immediately, that is, within 72 hours of his “adverse involvement with law enforcement.”

Here is the full section of the Foreign Affairs Manual:

12 FAM 272  REPORTING ADVERSE FINANCIAL SITUATIONS AND CERTAIN ARRESTS
(CT:DS-143;   02-12-2009)

a. Employees should use good judgment and discretion in recognizing and avoiding situations and/or behavior that would call into question their judgment, reliability, and trustworthiness to safeguard information and to hold a position of trust and responsibility.

b. Employees must immediately report information of a potentially derogatory nature to the Director, Office of Personnel Security and Suitability (DS/SI/PSS) concerning their:

(1)  Wage garnishments, credit judgments, repossessions, tax liens, bankruptcies, and/or intentions to file for bankruptcy; or

(2)  Adverse involvement with law enforcement agencies to include:

(a)  Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed; or

(b)  Arrests for “driving under the influence” or “driving while intoxicated.”

c.  Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

d. Employees with information they believe may have a bearing on another individual’s eligibility for access to classified information, as listed in 12 FAM 233.2, should report that information to the Director, DS/SI/PSS.

e. Reporting pursuant to this section should be in writing and directed to the Director, DS/SI/PSS, and may be either faxed to (571) 345-3191 or sent by mail to DS/SI/PSS, Attn: Director, 11th floor, SA-20.  Reports may also be emailed to DSDirectorPSS@state.gov.

f.  Cleared contractors must report information listed in paragraphs b, c, and d of this section to the Industrial Security Division (DS/IS/IND).  See 12 FAM 576.4 for additional adverse information reporting requirements.

The FSGB disagrees with the Department interpretation:

The critical language is “[a]rrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed. . . .” The Department argues that this language should be interpreted as if the second comma were not there. That is, the agency would have us read the provision to require disclosure of: “(a) [All] arrests, other than minor traffic violations for which a fine or forfeiture of $150 or more was imposed. . . .” We find that while this may have been what was intended, the first rule of statutory construction is to give the words of the enactment their plain and ordinary meaning, presumably as punctuated, unless there is a clear contrary intent expressed.
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We conclude that whatever the intent of the drafters, a clear delineation of what arrests are required to be reported was not captured in the language of the section 272 b(2)(a). We also conclude that both parties’ interpretations leave serious questions about which arrests were intended to be disclosed and which ones did not have to be reported.

12 FAM 270 was last updated on March 9, 2015.

Read the FSGB case below:

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