Congress Threatens to Compel Testimony of Ex-@StateDept Career Employee Over HRC’s Email Server

Posted: 3:34 am EDT
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We have not heard this name publicly cited before, but Politico is reporting that John Bentel, a 39 veteran of the State Department has now been snared in the Clinton email server saga. Politico says that according to a letter it obtained, Mr. Bentel has declined to be interviewed by GOP staff on the Senate Judiciary and Homeland Security committees. The chairmen of both committees, Sens. Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.), are reportedly “threatening to consider other ways to compel” Mr.  Bentel to discuss the matter.  Excerpt:

A State Department staffer who oversaw security and technology issues for Hillary Clinton is refusing to answer Senate investigators’ questions about the former secretary of state’s use of a private email server — marking the second time an ex-State employee has declined to talk to lawmakers.

John Bentel, a now retired State employee who managed IT security issues for the top echelon at the department, declined to be interviewed by GOP staff on the Senate Judiciary and Homeland Security committees, according to a letter obtained by Politico.
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The chairmen of both committees, Sens. Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.), are now threatening to consider other ways to compel him to discuss the matter.

“We are troubled by your refusal to engage with the committees even after repeated overtures of accommodation,” the letter to Bentel and his lawyer reads. “We need to speak with you. … We would, of course, prefer that you meet with us in a voluntary and informal manner, but we will consider other options if faced with a continuing lack of cooperation.”
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On Dec. 4, 2015, Judiciary and Homeland investigators reached out to Bentel’s lawyer to schedule an interview. But Turk told them Bentel had already been asked about the matter when he sat before the House Benghazi Committee. Turk said Bentel told the committee he had “no memory of knowledge” of the server issue and there was “little point” in telling another committee the same thing, according to the letter.

But both Senate panels say Bentel may have been aware of the sever, noting that their investigators have been told that some of Bentel’s subordinates knew about the home setup: “It appears that you were an integral figure in the operations of the Executive Secretariat and that you would have particular and unique knowledge relevant to the committees’ inquiry. Indeed, Department personal have noted that your subordinates in the Executive Secretariat’s office, who reported directly to you, had knowledge of Secretary Clinton’s private email server, which leads one to conclude that you were likely made aware of the server.”

Read more:

There does not seem to be an end in sight for these investigations. Certainly not in 2016.  This is a potential conundrum for folks even in the periphery of the former secretary’s orbit.  One can show up to these interviews and become a story, or one can refused to show up for these interviews and still become a story. Beyond becoming the news of the day, click here for what happens if one refuses to testify.

The law firm, MayerBrown says that Congress can compel the production of documents and sworn testimony from almost anyone at almost any time.  It has a good primer (PDF) on the Congress’s investigative authority and subpoena power:

“Although there is no legal obligation that a party comply with such a request, it is typically in the responding party’s best interest to do so, except where privileged or other sensitive information is involved [snip]. These informal requests present an important first opportunity for the responding party to shape the views and perceptions of the committee staff. Congressional staff members are required to work on a wide range of issues. They will rely heavily on a responding party whom they view as trustworthy to educate them on the issues under investigation. In addition, cooperating with an initial request allows the responding party to demonstrate that it is compliant and respectful, favorably influencing the staff and potentially mitigating the risk that members will publicly attack the responding party for noncooperation.”

Even if there is no immediate possibility of getting snared in these investigations, it’s probably a good reminder to review one’s private Professional Liability Insurance coverage. PLI may not just offer coverage on administrative and disciplinary matters, but also congressional, OIG investigations and civil suits. Outside these controversies, there is one very good reason for a PLI.  The Kent Case demonstrates that while FSOs are considered on duty 24/7, the 24/7 rule “. . . only defines the FSO’s duty to the state–not the states duty to the FSO.”  The case is Kashin v Kent dating back to 1998, decided by the Appeals Court in August 2006, and we think, it’s a must read case for FS employees.

Note that State Department regulations allow the reimbursement of up to 50%, or $175, whichever is less of the PLI cost for eligible covered employees (see 3 FAM 3840 – pdf). Membership with AFSA also affords one legal services when needed.  Check with AFSA. Also check with HR for guidance on PLI coverage.

 

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Senators Seek to INTVW @StateDept CIO Taylor; Wait, Wasn’t He Overseas When Pagliano Was Hired?

Posted: 3:05 am EDT
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Two Senate chairmen are pressing the State Department for more information about the staffer who maintained Hillary Clinton’s controversial email server, including requesting an audience with his former supervisor.

Senate Judiciary Chairman Chuck Grassley (R-Iowa) and Homeland Security Chairman Ron Johnson (R-Wis.) asked that Steven Taylor, State’s chief information officer, sit for a closed-door interview about the duties of his former subordinate Bryan Pagliano, according to a letter the senators sent to Secretary of State John Kerry.
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Mr. Taylor is a member of the Senior Foreign Service with the rank of Minister Counselor. He has been the Chief Information Officer of the State Department since April 3, 2013. He was previously appointed as Acting CIO on August 1, 2012. Preceding his assignment as CIO, he was the Department’s Deputy Chief Information Officer (DCIO) and Chief Technology Officer of Operations from June, 2011.

We should note that Secretary Clinton left the State Department on February 1, 2013, two months before Mr. Taylor was appointed CIO. In fact, according to this official biography, prior to his DCIO assignment in 2011, he served as Management Counselor in Cairo and Athens. So we’re guessing that between 2005 to 2011, this poor man was posted overseas and nowhere near the hiring desk when Mr. Pagliano was brought into the IT bureau of the State Department in 2009.

Not that it’s going to matter. The senators will probably drag Mr. Taylor before a closed-door interview still the same. Pagliano joined the State Department in May 2009. Maybe the senators should try the Bureau of Human Resources for their hiring and work duties questions?

Foggy Bottom’s Email Debacle Spreads Beyond Clinton Inner Circle

We don’t think this is going to stop at Mr. Taylor.  On September 14, conservative group Judicial Watch has also released a heavily redacted email, obtained through its FOIA lawsuit, between State Department official Eric F. Stein and Margaret P. Grafeld, dated April 21, 2015, with the subject “HRC Emails.”  Stein is deputy director of Global Information Systems (GIS) at the State Department and Grafeld is deputy assistant secretary of Global Information Systems (GIS). Stein reports to Grafeld that the “gaps” in Clinton’s emails include:

  • Jan. 21 – March 17, 2009 (Received Messages)
  • Jan. 21 – April 12, 2009 (Sent Messages)
  • Dec. 30, 2012 – Feb. 1, 2013 (Sent Messages)

Screen Shot 2015-09-15

On September 14, the State Department spox was asked about these gaps during the DPB and he maintained that there is no gap. Here is the exchange:

QUESTION: There was a release today by Judicial Watch from its lawsuit, and it cited several email gaps it claims existed in the former secretary’s list of ledger – full ledger of work-related correspondence.

MR KIRBY: Yep, seen the press report, Brad. We’re not aware of any gaps in the Clinton emails set with the exception of the first few months of her tenure when Secretary Clinton used a different email account that she has already advised she no longer has access to. And as I understand it, Secretary Clinton’s representatives have publicly stated that she used a separate email account in those first few months of her tenure. But beyond that, there’s no gap that we have seen or are aware of in Secretary Clinton’s email messages.

QUESTION: In that early part, you mentioned there was a gap of, I think, one month before – from the first received email to the first sent email. Now, I realize it’s fully possible she didn’t send an email that was work-related in that first month – that first month when she had that account, but is that your understanding or is that still an incomplete – you’re still fully researching all of those emails or unearthing them?

MR KIRBY: I know of no research attempt to deal with those first few months, Brad, because, as I said, former Secretary Clinton’s representatives already indicated that they were aware this gap existed and that she had – no longer had access to them. So it’s difficult if not impossible to do any particular research or forensics to get at those first few months. And as for how many were sent and received in that timeframe, I just don’t know. But this is not something that hasn’t been addressed before by her representatives. And beyond that first couple of months, those first four months, we have seen no gaps.

QUESTION: And in the last part of – in the last part of her tenure, there was what they cited was another gap in January 2013, which I’m guessing you’re saying is not a gap, in fact.

MR KIRBY: That’s correct.

QUESTION: Can you – they produced an email which showed an official saying there’s a gap or listing it as a gap. Do you understand what happened? Were those emails then later recovered or found?

MR KIRBY: Right. So we continue to maintain there’s no gap. I think you’re talking about this period of December 2012 through the end of January 2013.

QUESTION: Right.

MR KIRBY: And upon further review – so originally when they all came in, a cursory sort of preliminary look, a very quick look at the documents by an official here at the State Department revealed a potential gap of about a month or so in emails. But in going through them in a more fulsome manner after that, we’ve determined that in fact, there was no gap – that that time period is covered quite well by the emails that have been provided.

QUESTION: So you have emails from that period and —

MR KIRBY: We do.

QUESTION: — when you get to that point, they’ll be public.

MR KIRBY: We do, and I think you will continue to see – and we’ve been roughly rolling these out – roughly temporally and you will see – as we get to the remainder of the tranches, that you will see emails that were sent and received during that December ’12 to January ’13 timeframe.

That’s not going to end there.  The “gaps” will be too tantalizing to ignore.

This email released by Judicial Watch also includes a few more names, including Richard C. Visek, the State Department’s Deputy Legal Adviser and also the Designated Agency Ethics Official (DAEO). We suspect that it’s only be a matter of time before the somebodies in Congress would request the official apperance and interview with Margaret P. Grafeld, Eric F. Stein, and heaven knows, who else.

Related item:

Senate Report on Benghazi Cites “Grievous Mistake” for Non-Suspension of Operations Despite Vulnerabilities

The Senate Committee On Homeland Security And Governmental Affairs on December 30, 2012 issued its Benghazi report, Flashing Red: A Special Report On The Terrorist Attack At Benghazi.

The report says that the State Department’s Under Secretary for Management Patrick Kennedy noted in a briefing for the Committee, that Libya and Benghazi were “flashing red” around the time of the attack.

And?

The follow-up query and the response must have fallen off the, well, what else, the cliff!

The “flashing red” went kaboom !!!

… and four men were dead.

Here is one of the findings:

“Despite the inability of the Libyan government to fulfill its duties to secure the facility, the increasingly dangerous threat assessments, and a particularly vulnerable facility, the Department of State officials did not conclude the facility in Benghazi should be closed or temporarily shut down. That was a grevious mistake.”

The Senate report refers to the Benghazi post as the “Temporary Mission Facility in Benghazi.”  The ARB refers to the Benghazi post as the “The U.S. Special Mission in Benghazi” or the “U.S. Special Mission compound (SMC) and Annex.”

According to the ARB, the U.S. Special Mission in Benghazi, established in November 2011, was the successor to Chris Stevens’ “highly successful endeavor as Special Envoy to the rebel-led government that eventually toppled Muammar Qaddafi in fall 2011.”

2 FAM 411.1 dictates that the assistant secretary for the requesting regional bureau prepares a written proposal requesting authorization to open, close, or change the status of a Foreign Service post.

Presumably, the request to open the SMC in Benghazi originated from State’s NEA bureau, which has jurisdiction over Libya.

According to 2 FAM 400, the final decision to open, close, or change the status of a consular post, consular agency, branch, or special office is made by the Under Secretary for Management.  The same person who noted the “flashing red.”

There are 18 factors to consider in the books when opening or closing or changing the status of an overseas post. One of those factors, as may have been the case here considering the presence of OGA, is this:

(9) Expressed interest of U.S. Government agencies (other than the Department) in the maintenance of a post in the locality;

If you’re interested on how the final decision is arrived at, read up on 2 FAM 411.4.

Here are some other interesting parts of the Senate report:

  • U.S. government security personnel who were based in Tripoli had deployed to Benghazi by chartered aircraft after receiving word of the attack, arriving at the Benghazi airport at 1:15 a.m. They were held at the airport for at least three hours while they negotiated with Libyan authorities about logistics. The exact cause of this hours-long delay, and its relationship to the rescue effort, remains unclear and merits further inquiry. Was it simply the result of a difficult Libyan bureaucracy and a chaotic environment or was it part of a plot to keep American help from reaching the Americans under siege in Benghazi?

The host country government failed in its obligation to protect accredited members of the diplomatic corps, the least they can do is answer a few questions as to why security personnel were held at the airport for at least three hours.

A side note here. A second secretary at the Saudi embassy in Bangladesh was killed last March. Five men had just been sentenced to death for the diplomat’s murder. Saudi Arabia is a work destination for many Bangladeshis, so Bangladesh did not foxtrot around the death of a Saudi Arabian diplomat.

  • General Ham did not have complete visibility of the extent and number of government personnel in Benghazi in the event that a NEO was required. 88 If sufficient time had been available for such an evacuation, we are concerned that this limitation could have impeded AFRICOM’s ability to respond and fulfill its mission responsibility.

NEO interoperability between DOD and State has some challenges but we’ll have that for a separate post.

The Senate report further says:

States whose governments do not exercise full control over their sovereign territory, or that have a limited security capability, cannot be counted on to safeguard U.S. diplomatic personnel and facilities. This is usually true, of course, in the aftermath of a revolution or civil war – as was the case in Libya – where the provision of protective services by the host nations is unpredictable at best. In those instances, the Department of State must improve one or more of the other three protectors of mission security within its control: Marine Corps Security Guards, Diplomatic Security agents, or private security contractors.

There is already a move in Congress to increase the number of Marines to almost double its current size (1,200 Marine security guards currently assigned to more than 130 countries).

The State Department is also reportedly asking Congress for an additional $750 million to hire about 150 more security officers.

And the private security contractors could not be far behind.  Wired.com recently had a piece on the potential financial bonanza for security contractors for U.S. embassy security in the post-Benghazi era. The decision whether to continue spending cash on hired guards or to bolster the ranks of State Department employees that protect diplomats themselves will be one that must be tackled by the next secretary of state and soon.

The Senate report also has the following on funding and how they impact priorities:

Resourcing for security is a joint responsibility of the Executive Branch and the Legislative Branch. The Department of State’s decisions regarding security at the Benghazi facility were made in the context of its budget and security requirements for diplomatic facilities around the world. Overall, the Department of State’s base requests for security funding have increased by 38 percent since Fiscal Year (FY) 2007, and base budget appropriations have increased by 27 percent in the same time period. Other security funding provided beyond that in supplemental appropriations bills has been nearly entirely for diplomatic facilities in just three countries—Iraq, Afghanistan, and Pakistan.63 Less has gone elsewhere and very little is available to the temporary facilities such as the one in Benghazi.

Congress’ inability to appropriate funds in a timely manner has also had consequences for the implementation of security upgrades. RSO Nordstrom stated that Continuing Resolutions had two detrimental effects on efforts to improve security in Benghazi. First, the Department of State would only allow funds to be expended at a rate of 80 percent of the previous year’s appropriations level, so as not to risk a violation of the Anti-Deficiency Act. Second, in the absence of a supplemental appropriations or reprogramming request, security funds for Benghazi had to be taken “out of hide” from funding levels for Libya because Benghazi was not included in previous budget requests.

To the congressional reps and their friends who insist that the Benghazi tragedy has nothing to do with funding, the conclusion is simple: Congress’ inability to do its job has real deadly consequences.

Mistakes were made that’s for sure.  But no one honorable has yet come forward to claim those mistakes as his or her own.

And so we are painfully reminded that success has many parents. But a mistake is an orphan, conceived in a vacuum with neither father, mother or extended relatives present at creation. 😥

domani spero sig