@StateDept Updates Its Polygraph Policy: Are Results Shared For Security Clearance/Assignment Purposes?

Posted: 1:26 am ET
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On September 1, 2016, the State Department updated its 12 FAM 250 policy on the use of the polygraph to examine Department employees (including employees on the General Schedule, the Foreign Service, on Personal Service Contracts, Limited NonCareer Appointees, and Locally Employed Staff).  

Per 12 FAM 251.2-2, the Office of Investigations and Counterintelligence (DS/DO/ICI) Counterterrorism Vetting Unit (CCV) administers the polygraph program and is responsible for hiring polygraph examiners, responding to requests for polygraph support, deploying polygraph examiners, and maintaining relevant records.

The update includes the following:
  • Streamlines the polygraph examination process by removing a requirement to seek pre-approval before a DS or OIG agent can ask an employee if s/he is willing to submit to a polygraph.
  • Authorizes a DS agent or Department OIG investigator to alert an employee or contractor, currently subject to a criminal, personnel security, or counterintelligence investigation, that s/he has the option to undergo an exculpatory polygraph examination, rather than limiting exculpatory polygraphs to cases where it is initiated by the individual under investigation.
  • Allow polygraphs of Department employees detailed to federal agencies (in addition to the NSA, CIA, and DIA) when the relevant agency requires a polygraph to be detailed to the position. Polygraphs of employees detailed to agencies other than the NSA, CIA, or DIA will be considered on a case-by-case basis and will require approval from the Under Secretary for Management.
  • Limits the scope of polygraph examinations of Department detailees to other federal agencies to counterintelligence topics for all detailees.
  • Formalize existing processes for polygraph examination of certain locally employed staff, in accordance with the approvals specified in the polygraph policy

Back in May 2015, we questioned the use of the CIA’s polygraph exams of State Department employees (see AFSA Elections: What’s Missing This Campaign Season? Fire, Ice and Some Spirited Debates, Please).

Do you know that Department employees who take the CIA’s polygraph examination for detail assignments will have the  results of their polygraph provided to DS and HR for security  clearance and assignment purposes?  A source told us that “In and of itself, it does no  harm if the CIA retains them for its clearance purposes, but it can  have an unanticipated negative impact when indiscriminately released  by the CIA to third parties, like DS and HR, who use them in violation of the CIA’s restrictions to the Department  and assurances to the examinees.”  If this affects only a fraction of the Foreign Service, is that an excuse not to do anything about it, or at a minimum, provide an alert to employees contemplating these detail assignments?

We’ve recently discovered a newly posted grievance case dated March 2010. We don’t know why this is currently on display upfront on fsgb.gov.  In any case, this is related to the subject of polygraph examination.

On June 24, 2009, grievant, a retired Senior Foreign Service Officer, appealed to the FS Grievance Board the State Department’s (Department) denial of his grievance with respect to the use of the results of a polygraph exam he took in 2003 in conjunction with a detail to the Central Intelligence Agency (CIA). Grievant claims the improper handling and use of the results of that exam violated the Department’s own regulations (12 FAM 250) and resulted in his having been denied a Presidential Appointment as a Chief of Mission (Ambassador).  The ROP includes some interesting interrogatories:

#1: Has the Department ever obtained a Department employee’s polygraph examination results from the CIA for a personnel security background investigation based on the employee’s SF-86 signed release? If so, please describe the circumstances under which this would occur.

The Department objected to answering this interrogatory on the grounds that is was overbroad, immaterial, and irrelevant.

IR #6e for Diplomatic Security Case Officer for the second background investigation: Have you ever requested an employee’s polygraph results from the CIA before? If so, under what circumstances‘?

The Department found this interrogatory overbroad, irrelevant, and immaterial.

Ruling on IR #6e: Under the more ample concept of relevance applied at the discovery stage, the Board finds that the information requested is sufficiently relevant to grievant’s claims or likely to lead to the discovery of information relevant to such claims to compel discovery. The information requested may help to clarify the Department’s practice in applying the regulations governing the use of polygraphs that are issue in this case. We do not find the request to impose such a burden on the Department as to outweigh the potential usefulness of the information requested. The Department is directed to respond.

IR # 7h for Diplomatic Security: Does DS routinely request and receive polygraph examination results on all Department employees who have taken polygraph examinations at the CIA as part of their routine background security investigations?

The Department objected to this interrogatory as irrelevant and immaterial in all respects.

The Department was directed to respond to grievant’s Interrogatories 6e and 7h not later than 20 days after receipt of the order but we have been unable to find the decision on this case.

 

On June 24, 2009, grievant filed a grievance appeal, claiming improper use by the Department (Department, agency) of the results of a polygraph examination he had taken in conjunction with a detail from the Department to the Central Intelligence Agency (CIA).  The grievant makes several specific claims:

1) that the CIA provided the results of the polygraph to a Diplomatic Security (DS) agent in the Department, in violation of Department regulations and CIA policy;
2) that the Department requested and/or received the polygraph results from the CIA, in violation of its own regulations;
3) that the Department improperly used the polygraph results in the course of security update investigations; and
4) that the Department improperly provided information drawn from the polygraph to the Director General (DG), which resulted in the DG withdrawing grievant’s nomination to be a chief of mission. The FSGB Board finds that it has jurisdiction over the claims presented by the grievant.

 

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Robin Raphel, Presumption of Innocence and Tin Can Phones for Pak Officials

— Domani Spero
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Late on November 6, WaPo published the following Robin Raphel story:

Here is a link to the NYT story:

 

On November 7, an unnamed official cited by the Associated Press said the FBI investigation was related to access to classified materials:

 

NYT did a follow-up report over two weeks later reporting that an eavesdropping on a Pakistani official led to the Raphel inquiry:

 

A follow-up report from WaPo includes a statement from Amy Jeffress, Ambassador Raphel’s attorney (she is also the former chief of the National Security Section in the U.S. Attorney’s Office for the District of Columbia).

“Ambassador Raphel is a highly respected career diplomat who has dedicated her life to serving the United States and its interests,” said Amy Jeffress, Raphel’s attorney and the former chief of the National Security Section in the U.S. Attorney’s Office for the District of Columbia. “She would never intentionally do anything to compromise those interests. She, and we as her counsel, are cooperating with the investigation, and we are confident that she will be cleared of any suspicion.”

What do we know about this case?  Below is a list of “known” items out there according to media reports:

  • The federal investigation reportedly is part of a counterintelligence probe.
  • Ambassador Raphel’s security clearances reportedly was withdrawn.
  • She reportedly was placed on administrative leave last month, and her contract with the State Department was allowed to expire.
  • The FBI reportedly searched her Northwest Washington home, and her State Department office  also was examined and sealed.
  • Agents reportedly “discovered classified information” during a raid at her home.
  • In an intercepted conversation this year “a Pakistani official suggested that his government was receiving American secrets from a prominent former State Department diplomat,” reportedly setting off the espionage investigation.
  • Apparently,Ambassador Raphel has not been told she is the target of an investigation, and she has not been questioned according to her spokesman.
  • Ambassador Raphel now has a lawyer.
  • Over two weeks after the original report surfaced, she has not been formally accused or charged with a crime. Since she has not been formally charged, she has no way to defend herself from allegations.

The Indian media has had a field day with this investigation, throwing in a bunch of name calling, and well, it looks like she is considered a national nemesis over there. The view from Pakistan (read this) is thoughtful and more wait and see.  We’re also now starting to see Raphel’s name being linked to Hillary Clinton; she has been described as a “close Clinton family friend,” a  “Hillary donor” and a “powerful Clinton ally.”

In any case, we understand from a source inside the building that the FBI would “never investigate” a State employee without coordinating with Diplomatic Security’s Office of Investigations and Counterintelligence. Apparently, there is an FBI liaison in DS/IC to assist with the sharing of case information but whatever role Diplomatic Security played in this case, the bureau is not advertising it.

We’ve compiled a list of the things we don’t know about this case and the questions we have:

  • According to WaPo, two U.S. officials described the investigation as a counterintelligence matter, which typically involves allegations of spying on behalf of foreign governments. Who are these officials and what are their motive for leaking a counter-intel probe to the news media?
  • The investigation reportedly is ongoing; does the media spotlight not jeopardize the investigation?
  • According to NYT, it is unclear exactly what the Pakistani official said in the intercepted conversation that led to this investigation. Apparently, it is also not/not clear “whether the conversation was by telephone, email or some other form of communication.” Does this mean all discrete discreet Pakistani officials in the U.S. now are limited to discussing their lunch menu and tourist opportunities in their host country to using tin can telephones for official subjects?
  • Who is the  Pakistani official? Was he/she aware that USG agents were eavesdropping? If he/she/they were not aware before of the eavesdropping, are they aware now?  We’re seriously perplexed, how is this helpful?
  • We understand that by the time a case like this goes overt, the government has  all the information it needs.  It is not not apparent if that is the case here. If we presume that the USG went overt because it has all the evidence it needs, how come there are no charges to-date?

One of our most sacred principles in the United States is the presumption of innocence until proven guilty.   The government not only must charge an individual suspected of a crime, it also must prove,beyond a reasonable doubt, each essential element of the crime charged. That has not happened here.

Despite what the Indian media says, and even if Pakistani officials in the U.S. now are using tin-can telephones to communicate, the current status of the Raphel case amount to allegations from unnamed officials, and an ongoing investigation.  That is far from clear evidence of guilt.

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Updated on 11/25/14 at 1546 PST to correct grammatical errors and for clarity. 

 

 

 

 

 

 

 

Former Ambassador and Pakistan Expert Under Federal Investigation as Part of CounterIntel Probe

— Domani Spero
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Late breaking news today concerns Robin Raphel, a retired Foreign Service officer, former ambassador, and most recently, a senior coordinator at the State Department’s  Af/Pak shop as being under federal investigation as part of a counterintelligence probe.

Via WaPo:

A veteran State Department diplomat and longtime Pakistan expert is under federal investigation as part of a counterintelligence probe and has had her security clearances withdrawn, according to U.S. officials.

The FBI searched the Northwest Washington home of Robin L. Raphel last month, and her State Department office was also examined and sealed, officials said. Raphel, a fixture in Washington’s diplomatic and think-tank circles, was placed on administrative leave last month, and her contract with the State Department was allowed to expire this week.
[…]
Details of federal counterintelligence investigations are typically closely held and the cases can span years. Although Raphel has spent much of her career on Pakistan issues, it was unknown whether the investigation, being run by the FBI’s Washington Field Office, was related to her work with that country.
[…]
“We are aware of this law enforcement matter,” State Department spokeswoman Jen Psaki said. “The State Department has been cooperating with our law enforcement colleagues.”
[…]
“She is no longer employed by the State Department,” Psaki said.

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Her appointment at the S/RAP office did not come without some controversy. Here is an article from 2009:

 

We were able to locate two previous posts here from 2009 (see A Strategy for that $7.5 billion Pakistan Aid) and 2010 (see BLT on Former Ambassador Robin Raphel). In 2010, the Blog of Legal Times was tracking the news on lobbying disclosures concerning Ambassador Raphel.  She was at the time, already a member of Richard Holbrooke‘s team as the Special Representative to the Af/Pak region.  Her formal title was Senior Coordinator for Economic and Development Assistance.  Ambassador Raphel is a career diplomat who served as Ambassador to Tunisia (1997-2000).  In August 1993, during the Clinton Administration she was named the first Assistant Secretary of State for South Asian Affairs (1993-1997). Her Wikipedia entry says she retired from the State Department in 2005 after 30 years of service. Below is her outdated bio from her tenure as A/S for South Asian Affairs from the 1990s:

Ms. Raphel was sworn in as the first Assistant Secretary of State for South Asian Affairs on August 6,1993.

Ms. Raphel was born in Vancouver, Washington, and spent all of her childhood on the West Coast. Graduating from high school in Longview, Washington in 1965, she went on to the University of Washington to study history and economics. She spent her junior year at the University of London studying history. She returned to England after graduating for a year at Cambridge University before taking a teaching job at a woman’s college in Tehran, Iran. After leaving Iran in 1972, Ms. Raphel returned to the U.S. to study economics at the University of Maryland. After finishing her Masters of Arts degree, she first went to work for the federal government as an economic analyst at the CIA. From there she went to Islamabad, Pakistan, where she joined the Foreign Service and worked on detail to USAID as an economic/financial analyst.

Upon returning to Washington in 1978, Ms. Raphel worked in the State Department in several capacities — Economist in the Office of Investment Affairs, Economic Officer on the Israel Desk, Staff Aide for the Assistant Secretary for the Near East and South Asian Affairs, and Special Assistant to the Under Secretary for Political Affairs. In 1984 she was posted to London where she served in the U.S. Embassy as a Political Officer covering Middle East, South Asia, African and East Asian issues. She moved to South Africa in 1988 as Counselor for Political-Affairs at the U.S. Embassy. From August 1991 until August 1993, Ms. Raphel was the Counselor for Political Affairs at the U.S. Embassy in New Delhi, India.

Ms. Raphel is married to Leonard Ashton. They have two young daughters.

 

The WaPo report cites the FBI’s Washington Field Office as the entity running the investigation. Makes one wonder what is Diplomatic Security’s Office of Investigations and Counterintelligence role in this investigation. It is the State Department office tasks with conducting “a robust counterintelligence program designed to deter, detect, and neutralize the efforts of foreign intelligence services targeting Department of State personnel, facilities, and diplomatic missions worldwide.”

We should also note that two U.S. officials described the federal investigation to WaPo as a counterintelligence matter, which typically involves allegations of spying on behalf of foreign governments. The report, however, also  says that “the exact nature of the investigation involving Raphel remains unclear” and that “she has not been charged.”

We’ll have to wait and see how this investigation ends.

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