State/OIG: Classified Material Discovered in Unclassified Archives

Posted: 2:09 pm EDT
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The Office of Inspector General’s (OIG) Office of Evaluation and Special Projects is examining the State Department’s records preservation and the use of personal hardware and software by five Secretaries of State (Albright, Powell, Rice, Clinton, and Kerry) and their immediate staff. On March 4, State/OIG posted the OIG (Linick) – M (Kennedy) memorandum on classified material discovered in the archives and its removal for secured storage:

During the course of this evaluation, OIG searched unclassified archives and discovered records suggesting instances in which potentially sensitive material may have been transmitted via personal email accounts or other unclassified means to Secretary Powell or to Secretary Rice’s immediate staff. None of the material was marked as classified, but the substance of the material and “NODIS” (No Distribution) references in the body or subject lines of some of the documents suggested that the documents could be potentially sensitive. On October 19, 2015, OIG transmitted to the Department and separately to the Inspector General for the Intelligence Community (ICIG) for classification review 19 separate Office of the Secretary archival documents. The date range of the documents is from February 2003 through June 2008.
[…]
On December 29, 2015, the Department advised OIG that 12 of the 19 documents contain national security information classified at the Secret or Confidential levels based on a review by 9 Department bureaus and offices. Two of these documents were emails sent to Secretary Powell’s personal email account; the remaining were documents transmitted to personal or unclassified accounts belonging to a member of Secretary Rice’s immediate staff and another senior Department official.
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State’s official response:  Office of the Executive Secretariat (S/ES) staff have removed from the Department’s unclassified network all of the email material identified as classified and placed it in secure storage. Additionally, retired electronic records provided to the Bureau of Administration that were initially stored in an unclassified system have b~enmoved to the appropriate classified system. With regard to paper records relating to former Secretaries Powell and Rice, the Department does not believe any action is warranted because these materials are currently stored in a facility certified to house classified Department record~up to the SECRET level.

Read the memo exchange here:

 

Related post:

Classified Material Discovered in Unclassified Archival Material | Posted On: March 04, 2016 Report Date: March 2016 | Report Number: ESP-16-02

 

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Did We Ship Anyone Off to Timbuktu? Who at Senior Levels Knew What and When About HRC’s Communications

Posted: 2:52 am EDT
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The WSJ called the oldest executive agency in the union, the Department of Hillary, and accused  the entire State Department of “vigorously protecting Hillary Clinton.” It asks, “how it is that the nation’s diplomatic corps has become an arm of the Clinton presidential campaign?”

That is a sweeping accusation and we do not believe that to be true, but whether it’s true or not is immaterial. The perception is widely shared, even by reporters covering the State Department.  Our interest on HRC primarily relates to her tenure at State. We think that her management of the department — whether it relates to her email server, having a deputy chief of staff holding four jobs, special access to certain groups, operation in a bubble of mostly yes-people — was galling and distressing.  We do agree with Prof. Jonathan Turley when he writes that he “consider the decision to use exclusively an unsecure server for “convenience” to be a breathtakingly reckless act for one of the top officials in our government.”

Last month HRC was also quoted as saying, “I’m not willing to say it was an error in judgment.”

Folks will have to make up their own minds whether they agree with her or not, but the State Department is still paying a price for it. And the way this mess has been handled places at risk the institution’s deeply held tradition that the career service stay above the political fray.

The National Security Archive bluntly writes:

[T]he Federal Records Act, federal regulations on the books at the time (36 CFR 1263.22)[Official as of October 2, 2009], and NARA guidance which the State Department received (NARA Bulletin 2011-03), should have prevented Clinton’s actions, requiring her to provide “effective controls over the creation and over the maintenance and use of records in the conduct of current business”. (Read here for our analysis of why Clinton, and hundreds of others at State, including its FOIA shop and IT department, were in the wrong for not blowing the whistle on her personal email usage.) Read more here.

At some point in the near future, there will need to be a reckoning about what the senior officials, the career senior officials in Foggy Bottom knew about what during the Clinton tenure.

On Saturday, January 24, 2009 8:26 p.m. Lewis Lukens sent an email to M/Patrick Kennedy (email released via FOIA lawsuit by Judicial Watch (PDF). Lukens who was then the Executive Secretary (he was subsequently appointed US Ambassador to Senegal and Guinea-Bissau), writes, “I talked to cheryl about this. She says problem is hrc does not know how to use a computer to do email  only bb. But I said would not take much training to get her up to speed.” The email chain talks about setting up “a stand alone PC in the Secretary’s office, connected to the internet” but apparently a separate system not through the State Department system that would allow HRC to “check her emails from her desk.”

What’s the difference between using a State Department system and a stand alone system for somebody who doesn’t know how to use a computer? But more that that, we want to understand why it was necessary to set up a stand alone system. Did previous secretaries of state have their own stand alone systems? Did they have their own private email servers? Can somebody please explain why that was necessary?

This email was sent three days after HRC took the oath of office of Secretary of State (see starting page 6 below or see PDF here).

So, if they were considering setting up a stand alone PC on the 7th Floor and that did not happen, how could anyone in the top ranks of the career service not know when HRC’s people set up a private server away from the building? If they did not know, they were not doing their jobs. But if they did know, what does that mean?  Did anyone speak up and consequently suffer career purgatory? Please help us  understand how this happened. Email us, happy to chat with anyone in the know because this is giving us ulcers.

A related item about communications — in March 2009, the then Assistant Secretary for Diplomatic Security, Eric Boswell sent a memo to HRC’s Chief of Staff Cheryl Mills concerning the use of Blackberries in Mahogany Row. In that memo, also released via FOIA litigation with Judicial Watch, Boswell writes that “Our review reaffirms our belief that the vulnerabilities and risks associated with the use of Blackberries in Mahogany Row [redacted] considerably outweighs the convenience their use can add to staff that have access to the unclassified OpenNet system on their desktops. [redacted] We also worry about the example that using Blackberries in Mahogany Row might set as we strive to promote crucial security practices and enforce important security standards among State Department staff.”

The last paragraph of the memo says “If, after considering the vulnerabilities that I describe above and the alternatives that I propose, the Secretary determines that she wants  a limited number of staff to use Blackberries in Mahogany Row …. [redacted].” (See below or see PDF here)

What the  career professionals proposed can, of course, be ignored or dismissed by the political leadership. How much of it can one tolerate? Some of it, all of it?

Below is an August 30, 2011 email between then HRC deputy chief of staff Huma Abedin and Steve Mull, who we believed succeeded Lukens as Executive Secretary of the State Department. Following that assignment, he was appointed U.S. Ambassador to Poland, and last year, he was appointed Lead Coordinator for Iran Nuclear Implementation.  The Daily Caller obtained the emails through a Freedom of Information Act lawsuit filed on its behalf by Cause of Action and has reported about the emails here.  It shows the top officials who were loop in on the secretary’s communications setup, but it also points to what we suspect has always been the rationale on the server and email setup that now has consequential repercussions for the agency.  In one part of the email, the executive secretary writes, “We’re working with …. to hammer out the details of what will best meet the Secretary’s need.” (See below or see ScribD file here).

It is not surprising that the career folks worked to accommodate the needs of their principals.  We doubt anyone would last long in any assignment if they simply tell their boss blah, blah, blah can’t be done.

But — no individual in the upper ranks, career or noncareer, has so far been shown to stand up to a principal by saying “no, this is not allowed” or “this is not acceptable,” or even something like  — “this is not against the rules but it looks bad.” 

Does one draw a line between public service and service to a political leadership? Are they one and the same? What would you do?

Last September 2015, WaPo reported this:

But State Department officials provided new information Tuesday that undercuts Clinton’s characterization. They said the request was not simply about general rec­ord-keeping but was prompted entirely by the discovery that Clinton had exclusively used a private e-mail system. They also said they first contacted her in the summer of 2014, at least three months before the agency asked Clinton and three of her predecessors to provide their e-mails.
[…]
But the early call from the State Department is a sign that, at the least, officials in the agency she led from 2009 to 2013 were concerned by the practice — and that they had been caught off guard upon discovering her exclusive use of a private account.

Well, we’re sure the rank and file was caught off guard but which State Department officials were actually caught off guard? At least according to the Mull-Mills email exchange of August 2011, S/ES and M were aware of the existence of Secretary Clinton’s personal email server.

So when unnamed State Department officials talked to the Washington Post journalists last year, dammit, who did they say were actually caught off guard?

If anyone at M who has oversight over IT, Diplomatic Security, FOIA and federal records cited the Federal Records Act between 2009-2013 was shipped to Timbuktu for bringing up an inconvenient regulation, we’d like to hear about it.

Make no mistake, the perception that the Service had picked a side will have repercussions for the Foreign Service and the State Department.  If there is an HRC White House, we may see old familiar faces come back, or those still in Foggy Bottom, may stay on and on and just never leave like Hotel California.

But if there is a Trump or a Whoever GOP White House, we imagine the top ranks, and who knows how many levels down the bureaus will be slashed gleefully by the incoming administration. And it will not be by accident.

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OPM Issues Guidelines For Incentive Awards During 2016 Election Period

Posted: 12:55 am EDT
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On January 11, Acting Director Beth F. Cobert issued the  OPM guidelines for Appointments and Awards During the 2016 Presidential Election Period. Below is an excerpt on the prohibition of awards  from June 1, 2016 – January 20, 2017:

Under 5 U.S.C 4508, an incentive award may not be given during the period beginning June 1, 2016, through January 20, 2017, to a senior politically appointed officer, defined as:

  1. An individual who serves in an SES position and is not a career appointee as defined in 5 U.S.C. 3132(a)(4), or
  2. An individual who serves in a position of a confidential or policy determining character as a Schedule C employee.

Because Limited Term/Limited Emergency appointees are not “career appointees,” they meet this definition of senior politically appointed officer and cannot receive incentive awards during the 2016 election period.

In addition, all political appointees continue to be covered by a freeze on discretionary awards, bonuses, and similar payments.  This freeze was established by Presidential Memorandum on August 3, 2010 (https://www.whitehouse.gov/the-press-office/presidential-memorandum-freeze-discretionary-awards-bonuses-and-similar-payments) and continues to remain in effect until further notice (https://www.chcoc.gov/content/guidance-awards-fiscal-year-2014). Agencies should continue to apply this freeze in accordance with OPM’s guidance at https://www.chcoc.gov/content/guidance-freeze-discretionary-awards-bonuses-and-similar-payments-federal-employees-serving.

For additional guidance regarding appointments of current or former political appointees to competitive service, non-political excepted service, or career SES position, contact Ana A. Mazzi, Deputy Associate Director for Merit System Accountability and Compliance, at (202) 606-4309 or PoliticalConversions@opm.gov.  For guidance on awards during the 2016 Presidential election period, contact Steve Shih, Deputy Associate Director for Senior Executive Services and Performance Management, by calling (202) 606-8046 or Performance-Management@opm.gov.

Read more here.

 

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About Time For That Washington Ritual: Watch Out For Political Appointees “Burrowing In”

Posted: 12:53 am EDT
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Late last year, WaPo wrote about the watchdogs being in the lookout for Obama appointees ‘burrowing in’:

As each administration winds down, some political appointees traditionally seek to continue their government service as career employees beyond the administration they served. Also known as “conversions,” the practice has attracted skepticism from government watchdogs and experts but has become known as something of a Washington ritual.
[…]
In 2010, GAO reviewed 26 federal departments and agencies that converted 139 people from political to career positions from May 2005 through May 2009. While the majority of the conversions followed proper procedures, GAO said at least seven might have violated the merit-based system, including a Department of Veterans Affairs appointee who lacked the required experience and a Justice Department employee who received a career position despite unfavorable recommendations from government interviewers.

A separate WaPo report notes that in May 2006, investigators found that 23 agencies hired 144 political appointees from the G.W.Bush administration into career positions from May 2001 to April 2005. “In at least 18 cases the agencies did not follow proper procedures, the GAO found, citing problems such as hiring appointees with limited qualifications, creating positions for specific individuals and disregarding veterans’ preference laws.”

It also cites a report from 2002 where apparently between October 1998 and April 2001, 111 political appointees and congressional aides from the Clinton administration landed career jobs in 45 executive-branch agencies.

On January 11, 2015, OPM also issued guidelines for processing certain appointments during the 2016 presidential election period.

I.  Appointment of Current or Former Political Appointees to Career Civil Service Positions

Agencies must seek prior approval from OPM before appointing a current or recent political appointee to a competitive or non-political excepted service position at any level under the provisions of title 5, United States Code.  A former or recent political appointee is someone who held a political appointment covered by OPM’s policy within the previous five-year period.  OPM reviews these proposed appointments to ensure they comply with merit system principles and applicable civil service laws.  OPM’s memo and instructions regarding political appointees and career civil service positions is available at https://www.chcoc.gov/content/political-appointees-and-career-civil-service-positions.  The memo includes pre-appointment review checklists to assist agencies in preparing their submissions for review.

Note:  Schedule C employees may not be detailed to competitive service positions without prior OPM approval [see 5 CFR 300.301(c)], and no competitive service vacancy should be created for the sole purpose of selecting a Schedule C or Noncareer SES employee. 

OPM prepared a series of questions and answers (Q&As) to respond to agency inquiries about its policy for pre-appointment reviews and to provide additional details that will help agencies meet the policy’s requirements.  These Q&As, which follow, are also available at http://www.opm.gov/FAQs/topic/ppa/index.aspx?page=1

II.  Appointing Employees to the Senior Executive Service

OPM will continue to conduct merit staffing reviews of proposed career SES selections that involve a current or former political, Schedule C, or Noncareer SES appointee before such cases are formally presented to a Qualifications Review Board (QRB).  Agencies should carefully review all actions that would result in the career SES appointment of a political, Schedule C, or Noncareer SES before forwarding such cases to OPM.

Note:  All SES vacancies to be filled by initial career appointment must be publicly announced (5 CFR 317.501).  Only a career SES or career-type non‑SES appointee may be detailed to a Career-Reserved position (5 CFR 317.903(c)).  

In addition, OPM will suspend the processing of QRB cases when an agency head leaves office or announces his or her intention to leave office, or if the President has nominated a new agency head.  OPM imposes a moratorium on QRB cases as a courtesy to a new agency head when it learns of an agency head’s planned departure.  However, OPM will consider requests for exceptions to such a moratorium on a case-by-case basis.  When a presidential transition occurs, OPM will determine the disposition of QRB cases based upon the policy of the new administration.

In the same announcement, OPM released its Do’s and Don’t’s with burrowing employees:

Effective January 1, 2010, OPM conducts on-going pre-appointment reviews of current or former political appointee, Schedule C employee, and Noncareer SES member appointments to the competitive or exceptive service.  OPM seeks to ensure that the merit system principle of fair and open competition is protected.  With this in mind, these are the two most common reasons for OPM not to approve an appointment or a conversion:

  1. the new position appears to have been designed solely for the individual who is being converted, and/or
  2. competition has been limited inappropriately.

Below are “Do’s” that will help agencies with the conversion approval process:

  • Do make a public announcement through OPM’s USAJOBS when filling competitive or excepted service vacancies from candidates outside your own agency’s workforce.
  • Do carefully consider the Interagency Career Transition Assistance Plan for Displaced Employees regulations (5 CFR 330, Subpart G) before making selections.
  • Do ensure the Chief Human Capital Officer and Human Resources Director closely review all such proposed actions to determine if they meet the test of merit.
  • Do ensure the Chief Human Capital Officer and Human Resources Director gather all necessary internal agency approvals before presenting a case to OPM for review.

And “Don’ts”:

  • Don’t create or announce a competitive or excepted service vacancy for the sole purpose of selecting a current or former political appointee, Schedule C employee, or Noncareer SES member.
  • Don’t remove the Schedule C or Noncareer SES elements of a position solely to appoint the incumbent into the competitive or excepted service.

Read more here.

 

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Snapshot: @StateDept Processing Time for FOIA Requests From Albright to Kerry

Posted: 12:48 am EDT
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Via State/OIG:

The Department has been particularly late in meeting FOIA’s timelines for requests involving the Office of the Secretary. Table 1, which is based on IPS data provided to OIG, shows the processing time for FOIA requests that were tasked to S/ES and involved the current and past four Secretaries of State. Only 14 of the 417 FOIA requests were completed within the statutory timeframe. Fifty-five of the requests took more than 500 days to process. The majority of the requests, 243 of 417, are still pending; several of these pending requests were received years ago. For example, 10 of the 23 pending requests relating to former Secretary of State Colin Powell are at least 5 years old.

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Officially In: Stephen D. Mull – from Foggy Bottom (S/ES) to Poland

On July 10, President Obama announced his intent to nominate Ambassador Stephen D. Mull as the next Ambassador to the Republic of Poland. The WH released the following brief bio:

Ambassador Stephen D. Mull, a career member of the Senior Foreign Service, Class of Career-Minister, is Executive Secretary at the Department of State, a position he has held since June 2010.  Prior to this position, he was Senior Advisor to the Under Secretary for Political Affairs from 2008 to 2010, and Principal Deputy Assistant Secretary for Political Military Affairs from 2006 to 2008.  From 2007 to 2008, he served concurrently as Acting Assistant Secretary for Political-Military Affairs.  Ambassador Mull served as U.S. Ambassador to the Republic of Lithuania from 2003 to 2006, and as Deputy Chief of Mission at the U.S. Embassy in Indonesia from 2000 to 2003.  With over 30 years of service at the State Department, Ambassador Mull’s previous positions include: Deputy Executive Secretary (1998-2000); Director of the Office of Southern European Affairs (1997-1998); Political Counselor at the U.S. Embassy in Poland (1993-1997); and Deputy Director of the State Department Operations Center (1991-1993).

Ambassador Mull received a B.S. from Georgetown University.

Secretary Clinton (right) and Ambassador Stephen D. Mull (center) at the U.S. Embassy London. Photo by SJ Mayhew via US Embassy London

If confirmed, Ambassador Mull would succeed political ambassador, Lee A. Feinstein who was appointed to Warsaw by President Obama in 2009.  Ambassador Feinstein issued a statement saying it has been “a tremendous honor and privilege to represent the United States in Poland during the past three years.”

“Living in Poland has been a great gift to my family and me.  While we are looking forward to returning home, Poland will always remain dear to us.”

“I am proud of what we have accomplished, and I remain committed to advancing our common security and prosperity, while I continue to serve in Warsaw and thereafter.

In March 2012, Secretary Clinton asked that ambassadors remain at their posts until either the Senate has confirmed a replacement or specific departure instructions are given.

Domani Spero

Related item:

July 10, 2012 | President Obama Announces More Key Administration Posts