FSGB Case: Revocation of Top Secret Security Clearance and Separation

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Via FSGB Case No. 2020-002:

Held – The Grievance Board found that because the security clearance of the charged employee had been revoked after final agency review, the Department of State established that the proposed separation of the charged employee was for such cause as will promote the efficiency of the Foreign Service.

Case Summary The charged employee, a Diplomatic Security Special Agent, was notified that his Top Secret security clearance was suspended for failure to cooperate in certain medical assessments. The charged employee’s clearance subsequently was revoked. The charged employee appealed the revocation to the Department’s Security Appeals Panel, which sustained the revocation after consideration of the written submissions of both the charged employee and the Department. Because a Top Secret security clearance is a condition of employment for the charged employee and because the revocation of his clearance was final, the Department proposed to separate the employee for cause. After a hearing on the issue, the Board concluded that the Department had established cause for the separation and evidence that the separation would promote the efficiency of the Service.

Background

On July 11, 2014, the Director of the Office of Personnel Security and Suitability, Bureau of Diplomatic Security (DS/SI/PSS), notified the charged employee, via memorandum that his “continued access to classified information was not clearly consistent with the interests of national security.”1 Accordingly, his Top Secret security clearance was suspended pending the outcome of “ongoing Department medical review.” 2 The charged employee held a position as an FS-02 DS Special Agent who required a Top Secret security clearance to perform his duties.

On October 7, 2015, the Deputy Assistant Secretary for Domestic Operations notified the charged employee by letter that his Top Secret security clearance was revoked. The employee was afforded 30 days to request a review of this decision. It appears that a review was requested because on March 13, 2019, the Principal Deputy Legal Adviser, on behalf of the Security Appeals Panel (Panel) notified the employee by letter that the Panel voted to sustain the decision of DS to revoke his Top Secret security clearance. This letter noted that the Panel had convened on February 19, 2019; that the charged employee had appeared and answered questions; and that the Panel took into account his responses, as well as written materials provided by the employee, his private counsel, DS.3

On August 20, 2019, the Director General notified the charged employee that the Department proposed to separate him for cause, under Section 610 of the FSA as amended, in order to promote the efficiency of the Service. The separation proposal stated that all Foreign Service positions require a Top Secret security clearance because all FS positions are “critical sensitive.” 4 Thus, because his security clearance had been revoked after all final reviews, the charged employee could no longer maintain a condition of his employment.

The charged employee responded by email on September 3, 2019 to the proposed letter of separation, stating, “Separating me from the Department does not seem right to me.” 5 The charged employee offered no other written or oral response to explain, rebut, or mitigate the separation proposal.

On January 6, 2020, the Department submitted the transmittal containing the separation proposal to the FSGB. On February 25, 2020, the Board conducted a pre-hearing conference (PHC) with the parties by telephone, during which the Board, the charged employee and the Department agreed upon procedural ground rules and a schedule of events prior to the hearing.6

The Department indicated at the PHC that beyond the documents submitted with the Department’s separation file in this case, the agency did not intend to submit any other exhibits or call any witnesses at the hearing. The charged employee indicated that he did not wish to call any witnesses or submit any documentation to the Board at the hearing. Thereafter, the parties reached an agreement on joint stipulations of fact to be presented at the hearing.7

On April 2, 2020, a hearing was convened by the Board on the separation proposal. The hearing was held telephonically, due to the CoVid 19 coronavirus pandemic, the President’s order to maximize the use of telework and the Governor of Virginia’s “stay at home” emergency order. At the start of the hearing, the Board advised the parties that it had determined that there was no need for a video-conferenced hearing because the parties had advised that they intended to offer no witness testimony. Neither the charged employee nor the Department objected to the use of a telephonic hearing process.

The Board found that a Top Secret security clearance is required for the employee’s position; therefore, the agency established that the charged employee failed to maintain a mandatory condition of employment. The Board concluded that the Department established cause for the separation on a single charge of Failure to Maintain a Condition of Employment and that separation of the charged employee will promote the efficiency of the Foreign Service.

3 According to the Principal Deputy Legal Adviser’s letter, “the Panel focused in particular on concerns relating to guideline I (‘Psychological Condition’). … [T]he Panel took note of the fact that [the charged employee] did not appear at the medical evaluation which [he] had agreed to undergo, [his] email of November 2, 2018, and [his] unwillingness during [his] appearance before the Panel to offer information that it could use to determine whether DS’s concerns had been mitigated.” The record does not reveal any additional information about the predicate for the security clearance suspension or revocation.

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FSO Jennifer Davis’ Security Clearance Revocation, a Very Curious Leak

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On April 9, Politico published an odd piece about the revocation of a Foreign Service officer’s security clearance.

“A top aide to the U.S. envoy to the United Nations has stepped aside after her security clearance was revoked, according to two people familiar with the matter.

Jennifer Davis, the de facto chief of staff to Amb. Linda Thomas-Greenfield, is a career Foreign Service officer who has worked at the State Department for 18 years, with previous postings in Colombia, Mexico and Turkey.”

The report says that the revocation came after a three-year investigation by the Bureau of Diplomatic Security. Davis served a three year tour as Consul General in Istanbul, Turkey from August 2016 to August 2019.

“In that role, she had a conversation with a reporter, Amberin Zaman of the Middle Eastern-focused news outlet Al-Monitor, about the problem of local staff being hassled and detained by Turkish authorities, according to the person close to her.

Zaman reported at the time that the Turkish pressure campaign was likely to expedite U.S. government plans to use visa sanctions to block certain Turkish officials from visiting the U.S. and said that a list of such officials had been drafted, citing “sources close to the Donald Trump administration.” Not only did she speak to Zaman with the knowledge and at the direction of her superior, according to the person close to Davis, the information she shared was “not at all sensitive” and was declassified soon after their discussion.”

The report further states that Davis spoke to Zaman “with the knowledge and at the direction of her superior” citing a person close to Davis. And that the information Davis shared “was not at all sensitive”  and it was reportedly declassified soon after the discussion occurred.
Security clearance revocations do not make news very often. The investigating office is often mum about the revocation and the subject of the security clearance investigation/revocation is often not able to talk about it. Unless they write about it. Or unless officials leaked it to the press, of course.
At least three people spoke to Politico: the “two people familiar with the matter” and “a person close to Davis who said that “Davis will “strongly contests the determination” and is “going to aggressively appeal this decision as quickly as possible.”
Nearly 1.4 million people hold “top secret” clearance. So why is the Davis case news?  We do not know, as yet, who stands to gain by the public revelation of this revocation. But see, this is making us well, perplexed and very curious.
Let’s try and see a public timeline of what happened prior to the reported revocation.
October 2017: In the fall of 2017, Turkey arrested a local national working at the US Consulate General Istanbul.
The U.S. Ambassador to Turkey during the first two arrests of US Mission employees (one in Adana, one in Istanbul) was John Bass who served from October 2014 to October 2017. Prior to the conclusion of his tenure in Turkey, the US Mission suspended visa services, a specific action taken by the U.S. Government over the Turkish Government’s treatment of U.S. Mission employees in Turkey. Ambassador Bass issued a statement about the arrests of two veteran employees of the U.S. Government in Turkey.
October 2017 – Chief of Mission to Chargé d’Affaires in Turkey
Philip Kosnett assumed the duties of Chargé d’Affaires in October 2017 upon the conclusion of Ambassador John Bass’ assignment in Turkey. He began his assignment as Deputy Chief of Mission at the U.S. Embassy in Ankara, Turkey in July 2016.  In July 2018, he was nominated by Trump to be U.S. Ambassador to Kosovo.  He was confirmed by the U.S. Senate in September 2018, and presented his credentials in Pristina in December 2018. That’s still his current assignment. Kosnett’s tenure as Chargé d’Affaires at US Mission Turkey was from October 2017 to on/around July 2018.
November 2017: Michael Evanoff was confirmed as Assistant Secretary of State for Diplomatic Security under the Trump Administration. He served in that capacity until his resignation in July 2020.
December 2017: U.S., Turkey mutually lift visa restrictions, ending months-long row
January 2018: A second local employe of U.S. Consulate General Istanbul was arrested.
On January 31, 2018, USCG Istanbul local employee Nazmi Mete Cantürk turned himself in to Turkish authorities and was placed under house arrest.  It was previously reported that in 2017, his wife and child were detained Oct. 9 in the Black Sea province of Amasya for alleged links to the Gülen network. He was the third USG employee arrested by the Government of Turkey.
The two arrests in Istanbul followed a previous arrest of a local employee at the U.S. Consulate in Adana in February 2017. Turkish authorities detained Hamza Uluçay, a 36-year veteran Turkish employee of the U.S. Consulate on unsubstantiated terrorism charges.
February 2018: Journalist Amberin Zaman published an article via Al-Monitor.
On February 1, 2018, a day after a second Consulate employee was put under house arrest by the Turkish Government,  Zaman published “Turkey resumes pressure on US Consulate staff” for Al-Monitor. This  was the article that reportedly spurned the investigation. Excerpt below:

“Turkey has reneged on its pledge to not hound locally employed staff at US missions on its soil, with police interrogating a Turkish citizen working for the US Consulate in Istanbul yesterday, Al-Monitor has learned. The move could likely accelerate the US administration’s plans to apply targeted visa sanctions against Turkish officials deemed to be involved in the unlawful detentions of US Consulate staff, provided that Secretary of State Rex Tillerson gives final approval, sources close to the Donald Trump administration told Al-Monitor.”

March 2018: Rex Tillerson, the 69th Secretary of State was fired.
A few weeks after the publication of the Zaman article, Rex Tillerson was fired from the State Department and left Foggy Bottom for the last time on March 22, 2018. His inner circle staffers followed him to the exit by end of that month. Also see Trump Dumps Tillerson as 69th Secretary of State, to Appoint CIA’s Pompeo as 70th SoS.

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@StateDept’s Retaliatory Security Clearance Revocation Now Punishable By [INSERT Three Guesses]

 

In July, we blogged about a short item in the latest State/OIG Semi-Annual Report to Congress that indicates it substantiated an allegation of a security clearance revocation in retaliation for an employee’s whistleblowing activity under PPD-19. State/OIG recommended that the whistleblower’s security clearance be reinstated. See State/OIG Finds @StateDept Revoked Security Clearance in Retaliation For Whistleblowing

On July 20, 2018, an unclassified memo jointly signed by Deputy Secretary John Sullivan and State/OIG Steve Linick was released by the Deputy Secretary’s office (with a Whistleblower Info flyer). The memo says in part:

Whistleblowers perform a critically important service to the Department of State and to the public when they disclose fraud, waste, and abuse. The Department is committed to protecting all personnel against reprisal for whistleblowing.

The attached memorandum describes how to make a whistleblowing disclosure and the legal protections that exist for whistleblowers, including Foreign and Civil Service employees and employees of Department contractors and grantees. The memorandum also describes how to file a complaint if you believe you have been subject to improper retaliation.

The memo also identifies the Whistleblower Ombudsman for the State Department as  Jeff McDermott:

The Whistleblower Protection Enhancement Act of 2012 requires Inspectors General to designate a Whistleblower Protection Ombudsman. Jeff McDermott has been designated as the Whistleblower Ombudsman for the Department. He is available to discuss the protections against retaliation and how to make a protected disclosure, but he cannot act as your legal representative or advocate. You may contact him atWPEAOmbuds@stateoig.gov.

The memo concludes with a reminder that State Department employees “have a right” to communicate directly with the OIG, and provides contact details:

Remember that Department employees always have a right to communicate directly with OIG. The OIG hotline number is 800-409-9926, and the hotline website is https://oig.state.gov/hotline. OIG’s main website is https://oig.state.gov/.

We suspect that this memo may have been prompted by the IG report to the Congress that an employee had his/her security clearance revoked in retaliation for whistleblowing.

So we wrote to the Whistleblower Ombudsman Jeff McDermott with our congratulations, and, of course to ask a couple of simple questions:

Citing the Sullivan-Linick memo, we asked how is this going to discourage retaliation on whistleblowers when we don’t know what consequences officials face when they are the perpetrators of such retaliation?

Given the latest example of an employee whose security clearance was revoked in retaliation for whistleblowing, we asked if anyone at the State Department has disciplined for doing so?

Since we did not get a response from the Whistleblower Ombudsman, we asked State/OIG for comment last month and was told the following:

Please note that there are different disclosure and review processes for contractor and employee whistleblower retaliation allegations. There is also a different review process for allegations of whistleblower retaliation in the form of actions that have affected an employee’s security clearance. OIG primarily reviews contractor whistleblower and security clearance retaliation allegations, while the Office of Special Counsel generally reviews employee retaliation allegations.

Congress enacted a new provision last year that requires an agency to suspend for at least 3 days a supervisor found to have engaged in a prohibited personnel practice, such as whistleblower retaliation, and to propose removal of a supervisor for the second prohibited personnel practice. OIG believes that these new provisions will demonstrate that there are serious consequences for whistleblower retaliation.

The case you are referring to is a retaliatory security clearance revocation case, and the decision about what action to take has not yet been determined by the Department.

So it’s now September. If the State Department believes, as the memo states that “Whistleblowers perform a critically important service to the Department of State and to the public” we really would like to know what the State Department has done to the official/officials responsible for this retaliatory security clearance revocation.

 

Related posts:

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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