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

Posted: 4:22 am ET
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The State Department has reportedly resumed its internal review related to the Clinton emails.  The spox refused to confirm “what specific materials” the State Department will consider or “what individuals may or may not be evaluated for possible employment or security clearance-related actions.” Note that this internal review is conducted by Diplomatic Security; perhaps due to public interest the results of the review may be released to the public, but that is not a given.

Via DPB dated July 15, 2016

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

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

QUESTION: What can you tell us?

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

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

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

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

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

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

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

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

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

QUESTION: Okay.

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

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

MS TRUDEAU: Yeah.

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

MS TRUDEAU: Yeah.

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

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

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

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

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

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

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

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

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

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

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

MS TRUDEAU: As I’ve said.

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

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

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

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

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

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

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

MS TRUDEAU: Sure.

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

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

MS TRUDEAU: Okay, so thanks for the question.

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

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

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

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

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

QUESTION: And then just one more small one.

MS TRUDEAU: Sure.

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

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

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

MS TRUDEAU: Again —

QUESTION: You don’t know?

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

QUESTION: Will they —

MS TRUDEAU: We’ll do it by the FAM.

#

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Dear @StateDept, You Need Bond. Michele Bond at the Daily Press Briefing

Posted: 4:08 am EDT
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In case you missed this:

 

We’ve just read the Daily Press Briefing from last week with the press corps asking questions about K-1 visas related to the San Bernardino attack.

Oh, holy mother of goat and her stupid nephews!

It should have been all hands on deck to know absolutely everything about this case.  Instead we have Mark Toner, the deputy spokesperson of the State Department on December 3, either asking to take the question, or guessing his response. “I don’t know “…. “I would presume …”

Then the next day, Elizabeth Trudeau, the Press Office director did the DPB and seriously underwhelmed our video player. She refused to confirm that the K-1 visa was issued in Islamabad, something that Mr. Toner already talked about just the day before. 

Folks, haven’t you learned anything at all?  Anything? It’s not like this case is locked in a file cabinet in the catacombs of Foggy Bottom..  That’s why you have your consular systems.

 

Her name is Bond, Michelle Bond.

The State Department need to put its Consular Affairs Assistant Secretary of State Michele Bond up there at the podium to answer these questions.  Help the journalists understand the K-1 process, and the roles State and DHS play in the systems currently in place.  PA officials who have not done visa work in 15-20 years should not be left on the podium guessing about the process and unable to answer questions about this case.

When the press asks, “Can Americans have confidence in this visa processing system?”, Ms. Bond should be able to say “Absolutely, and here’s why.”  And she should be able to explain clearly the whys.  Hopefully, she’s not going to say because “it’s an adaptable system” or  that “We continue to improve it.” Because people are not really interested whether it’s an adaptable system. They want an assurance that the systems in place work; and if it did not work in the visa issuance process for Tashfeen Malik, they want to know what had been done to update that process.

We were going to suggest that the State Department convene an Accountability Review Board per 12 FAM 030. The ARB Permanent Coordinating Committee, where the Deputy Assistant Secretary for Visa Services sits as one of its seven members, by the way, can make that recommendation to the Secretary:

“The ARB process is a mechanism to foster more effective security of U.S. missions and personnel abroad by ensuring a thorough and independent review of security- related incidents. Through its investigations and recommendations, the Board seeks to determine accountability and promote and encourage improved security programs and practices. In addition, the ARB mechanism enhances the integrity of the visa issuing process by determining accountability in certain instances in which terrorist acts in the United States are committed by aliens.”

Except that current regulations are quite clear that “a Board will be convened with respect to a visa incident only if the following three determinations are made:”

(1)  That the incident involved a terrorist act causing serious injury, loss of life, or significant destruction of property in the United States;

(2)  That there is probable cause to believe that a specifically identified alien was a participant in the terrorist act; and

(3)  That the alien was issued a visa on or after May 1, 1996; at the time of visa issuance, the alien’s name was included in the Department’s Consular Lookout and Support System (CLASS) and that the visa was issued as a result of a failure by the consular officer to adhere to the procedures required to be followed by the inclusion of the name in such visa lookout system.

Since State is confident of its vetting process, it appears right now that subject was not in the CLASS.  Which would make the ARB not a requirement under these regs.

Nonetheless, it would be helpful to know if the State Department has reviewed its internal processes or that it plans to do so. This individual got through  — despite the vetting, the interagency sharing of information, fingerprints, etc, and the face to face interview —  it is not unreasonable to ask how she got in. Maybe there are no cracks, but the public needs to understand the process, which will never with 100% fault-free.

As our consular blog pal told us, “It will never be fault-free because humans aren’t.” People can get away with lying, or can change their minds. Unless the USG has come up with a precognition system similar to Philip K. Dick’s in the Minority Report, there is no way to determine an individual’s action in the future. What do you do with a culprit that has not yet committed a crime? Do you arrest him or her before he/she commits a future crime thereby protecting the public from all prospective harm?  What regulations apply to that?


Daily Press Briefing excerpts:

On December 3, Mr. Toner, the State Department’s deputy spox took a stab at the K-1 questions.  If you want to beat your head against the wall, hard … well, we can understand the feeling, but wear your helmet first, okay?

QUESTION: — of the suspects in the San Bernardino mass shooting that happened yesterday? There are various statements and reports out there about Tashfeen Malik, the alleged female shooter suspect who was killed yesterday. Some are saying that she lived in Saudi Arabia before coming to the U.S. And what I wonder is the extent to which the State Department has been pulled into this investigation. Can you give us some kind of guidance on whether those reports are accurate? And if so, what type of visa was she in the United States on? Is there anything about the citizenship status of her that you can share with us?

MR TONER: Sure. Well, since it’s already been reported out in the press, I can confirm that she did receive or was issued a K-1 so-called fiancee visa, I believe in 2012. Is that correct? 2015 – 2000 – help me here. Okay, we’ll get that number for you. Unfortunately, it’s not in front of me here. But she did receive that from Pakistan. That allowed her to travel here to the United States.
[….]
QUESTION: Does that require an interview?

MR TONER: If that petition is approved, the case is forwarded to the U.S. consulate abroad in order to verify the qualifying relationship and vet the applicant for any derogatory information. I’m virtually sure that, as in any visa – as in any visa processing, that that involves an interview. I don’t know if —

QUESTION: But not a joint interview, right? They don’t have to appear together at the consular office, wherever that is?

MR TONER: Not – that I’ll have to – I’ll have to take that question. I’m not sure. I’m not sure.

[….]

QUESTION: And can you also check on the – that before getting that given visa, where did they meet? Because I’m not sure, but if I’m remembering correctly, there is a clause that they should have met or like – it’s not just on the —

MR TONER: Again, no, that wouldn’t – so that wouldn’t – again, I would refer those kinds of questions to the FBI who’s conducting the investigation into this.

QUESTION: Well, what happens if they don’t get married within 90 days?

MR TONER: I would presume that the – that would invalidate the visa.

QUESTION: And if – okay. And then if they do, does that mean that the visa is extended or they have to apply for something else?

MR TONER: Unclear to me whether that would be – that would be automatically extended. I would somewhat doubt that. There may be – again, I’m – I’d have to get you the full facts on it. I mean, if there’s extenuating circumstances, perhaps. I don’t know in this particular case and can’t really speak to it, but there’s a 90-day window because there’s a 90-day window. So, I mean —

QUESTION: Right. But one doesn’t automatically become a U.S. citizen —

MR TONER: No, not at all.

QUESTION: — simply because one married one. So clearly —

MR TONER: Not at all. So any individual would have to provide for legal residency or a green card after living here, I guess, in – it’s one year, I think.
[…]

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