USDOJ Drops US Embassy Yemen Passport Revocation Case Sans Explanation

Posted: 2:16 am ET
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On October 13, 2015, the U.S. District Court of the Northern District of California ordered the State Department to return the U.S. passport of Yemeni-American Mosed Shaye Omar which was revoked “based on the involuntary statement he provided at the U.S. Embassy in Sana’a on January 23, 2013.” (See Court orders @StateDept to return Yemeni-American’s improperly revoked U.S.passport). In February 2016, the U.S. District Court of the Northern District of California issued a cross motions for summary judgment: “This lawsuit presents the question of whether the United States government may revoke a United States citizen’s passport based solely on a purported “confession” that the citizen did not write, dictate, read, or have read to him, but did in fact sign. On the record before the Court, the answer is no.” (see more Omar v. Kerry, et.al: Passport Revocation “Arbitrary and Capricious,” New Hearing Ordered Within 60 Days).

On October 5, 2016, the United States Attorney for the Northern District of California asked to drop the case “without prejudice.”  We’re wondering how many more of these revocation cases would mow be dropped and sealed in court.

Via Politico:

Federal prosecutors — acting abruptly and without public explanation — have moved to drop a controversial criminal passport fraud case that critics alleged stemmed from coercive interrogations at the U.S. embassy in Yemen.

Earlier this year, a grand jury in San Francisco indicted Mosed Omar on passport fraud charges linked to a statement he signed during a 2012 visit to the U.S. diplomatic post in the unstable Middle Eastern nation.
[…]

Thursday afternoon, prosecutors submitted a brief court filing asking to drop the criminal case “without prejudice,” meaning it could be refiled. U.S. District Court Judge Charles Breyer will need to approve the dismissal of the case.

Spokesmen for the U.S. Attorney’s Office in San Francisco did not respond to messages seeking an explanation for the sudden move.
[…]
In response to a query Thursday from POLITICO, a spokesman for State Inspector General Steve Linick confirmed that an inquiry is underway into the allegations about improper passport revocations

“In June 2016, State OIG’s Office of Evaluations and Special Projects initiated a review of the Department’s processes of passport confiscations and revocations at the US Embassy Sanaa, Yemen,” spokesman Doug Welty said. He offered no additional details on the review.

If the case against Omar went forward, prosecutors might have been obligated to turn over to the defense some or all records of the IG review. That prospect may have contributed to the proposed dismissal, but there was no direct indication.

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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.
[…]
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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It Took Awhile But Here It Is — Going After @StateDept OIG Steve Linick With Fake Sleeper Cells

Posted: 2:24 pm EDT
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Politico reported on January 25 about the State Dept. watchdog tied to earlier Clinton probe.   Rep. Steve Israel (D-N.Y.), described by Politico as a Clinton ally questioned the impartiality of the State Department IG’s office. He was specifically targeting OIG Steve Linick’s senior advisor, David Seide, who according to Representative Israel: “You have a guy who used his former position to conduct a wide-ranging investigation into Mrs. Clinton that amounted to nothing, who then continues that work in the State Department. That has fingerprints on it that are just too visible and just lead to all sorts of questions.”

Excerpt below from Politico:

A lawyer overseeing investigations into former Secretary of State Hillary Clinton’s email practices has a history of tangling with the former first lady’s political operation: He was a federal prosecutor involved in a probe that led, a decade ago, to the unsuccessful prosecution of a top Clinton fundraising aide.

David Seide — now the acting senior adviser to the State Department inspector general — gathered evidence that surfaced in the case against David Rosen, the national finance director of Clinton’s 2000 Senate bid.
[…]
While Rosen’s trial was a stinging defeat for the government, after Rosen’s acquittal, the committee that arranged the 2000 gala paid a $35,000 civil penalty to the Federal Election Commission and agreed to amend the relevant campaign finance reports to acknowledge more than $721,000 in unreported spending. Such large in-kind donations to a campaign-linked fundraiser were legal at the time, but they were made illegal by the so-called soft-money ban in the McCain-Feingold law passed in 2002.
[…]
Seide appears to have close ties to State Department Inspector General Steve Linick and to DiSanto. When Linick gave up his position as IG at the Federal Housing Finance Agency to join State in 2013, Seide and DiSanto followed him to the new agency.

However, Seide’s résumé doesn’t suggest an anti-Clinton vendetta. After leaving government, he spent a year as an in-house counsel at Morgan Stanley before joining Wilmer Hale, a Washington law firm that has employed many prominent Democrats and former Clinton administration officials.

In 2002, Congress passed the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold. The legislation made changes to the Federal Election Campaign Act of 1971 to limit the use of “soft money.”

Representative Steve Israel voted in favor of the Bipartisan Campaign Reform Act of 2002.  So he was for McCain-Feingold before he was against McCain-Feingold?  Here’s the funny thing.  According to Politico, Doug Welty, the State OIG spox said that Mr. Seide was involved in the prosecution of a case in which a Clinton donor was charged with stock fraud, but not the Rosen case.

Chill out! Those prosecutors, they all look the same, hey?

In November last year, senior Democrats also alleged a “fishy connection” between the release of Huma Abedin-related  information and Senator Grassley’s former top investigator, Emilia DiSanto, who is now the deputy inspector general at the State Department. The NYT notes that “Ms. DiSanto worked for Mr. Grassley for years; she joined the inspector general’s office in late 2013, around the time the inquiry into Ms. Abedin began.”

Ms. DiSanto, in an email, responded angrily to questions about whether there was a connection between her and the information that Mr. Grassley had received.

“Any claim that I have communicated with Senator Grassley about State Department nominations is an outright lie,” she wrote. “There is nothing ‘fishy’ about the fact that I once worked for Senator Grassley about five years ago. Indeed, it is quite common for employees of the legislative branch to join the executive branch to continue their public service.”

Senator Grassley’s inquiry originally started with the Special Government Employee (SGE) arrangement involving Human Abedin in August 2013 (see The Other Benghazi Four: Lengthy Administrative Circus Ended Today; Another Circus Heats Up). Senator Grassley said in his letter to Secretary Kerry that he made inquiries on June 13, 2013 and August 15, 2013 regarding the State Department’s use of Special Government Employee (SGE). We’re not complaining, by the way, that Senator Grassley is looking into this issue. We’d like to know how other State Department employees can get permission to hold three other jobs concurrent with their federal jobs.  Some friends have mortgages, others have kids in college, car payments, student debts, etc…. so an additional job or two would be really helpful.

In any case, Emilia DiSanto was appointed Acting Deputy IG on October 1, 2013 to succeeded Harold Geisel, the Deputy IG who served as OIG boss for the last five years while the State Department did not have a Senate-confirmed Inspector General.  Ms. DiSanto was with the Federal Housing Finance Agency-Inspector General’s Office for two years prior to her move to the State Department.

In 2004, during her work at the Senate Finance Committee, Ms. DiSanto reportedly met with Food and Drug Administration whistleblowers about their concerns that widely used antidepressants were linked to suicidal behavior among teens. According to the WSJ, the scientists told Ms. DiSanto that they believed the agency and companies were ignoring or suppressing that information. Shortly thereafter the senator held the first major congressional hearing on a drug safety issue in years.  They later turned their attention to “medical devices, specialty hospitals, the antibiotic Ketek, ghostwritten medical papers, the FDA’s criminal division, its drug division, its veterinary division and, most notably, the diabetes drug Avandia.” See more here (PDF).

In late 2005, she survived an attack by a man who repeatedly struck her with with an unidentified object believed to be a baseball bat. Reports say no evidence points to DiSanto’s work on the Finance Committee as the cause for the attack, but sources say there are a number of clues that suggest it could be since the assailant “was trying to hide his identity, wearing a hood and black gloves. He also did not make any demands before attacking the 49-year-old staffer. A working assumption among investigators is that he was waiting for her to arrive home.” She reportedly returned to work a week after her attack, and continued to work at the Senate until 2011 when she left and moved to FHFA/OIG.

David Seide was appointed Counselor to the Inspector General on October 18, 2013.  Previously, he served for almost three years as Director of Special Projects in the Office of the Inspector General of the United States Federal Housing Finance Agency.  His title was later changed to Acting Senior Adviser to the Inspector General at the State Department.

Both Ms. DiSanto and Mr. Seide worked with Mr. Linick when he was inspector general at Federal Housing Finance Agency (FHFA). We should note that they worked with the RMBS Working Group and the New York Attorney General’s Office in support of the investigation and prosecution of RMBS fraud cases. In November 2013, when all three have already moved to the State Department, their old office, FHFA/OIG with the Justice Department and other state and federal entities secured a record $13 billion global settlement with JPMorgan for misleading investors about securities containing toxic mortgages.  They did the jobs they were supposed to do there.

Now they’re doing the jobs they’re supposed to be doing at the State Department.

And some politician is trying to convinced us that they are at fault for doing their jobs by peddling “all sorts of questions” and citing  “fingerprints.”

Mr. Seide is one of the two team leaders and 10 OIG staffers who looked into the Department of State’s FOIA Processes for Requests Involving the Office of the Secretary (PDF).  Is the good congressman from New York also digging up the backgrounds of the 10 OIG staffers involved in that project? That is, by the way, a distressing report to read but nobody asked how come no one had ever done this review before? What happened to the OIG during the Clinton tenure? What’s that? There was no Senate confirmed IG during that entire tenure?

Too bad, there was no IG with major brass balls before now to look under the rugs.

We do think that the real target of these allegations of bias is Mr. Linick. Because, hey … if his closest aides are political sleeper cells, who somehow manage to lay low in the bureaucracy and a decade later they turned the screws at their first opportunities, then by golly, he must be, too!  And if you can smear the messengers badly enough, then, of course, all those reports his office issued and will issue in the future can simply be ignored or dismissed as partisan.

This is predictable babble and the good congressman from New York and friends must now find a vomitorium so they can throw up all this crap.

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Be On The Lookout Alert: State/OIG’s Inspection Reports FY2015 (Corrected)

Posted: 12:43  am EDT
Corrected: 1:19 pm EDT
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The Office of Evaluations and Special Projects (ESP) in the Office of Inspector General (OIG) was established in 2014 “to strengthen OIG’s oversight of the Department and BBG, and to improve OIG’s capabilities to meet statutory requirements of the Whistleblower Protection Enhancement Act of 2012.”  ESP is also responsible for special evaluations and reviews, including responses to congressional inquiries. The work of this new office reportedly complements the work of OIG’s audits, investigations, and inspections by developing a capacity to focus on broader, systemic issues.

Note: We are correcting this post to indicate that the following reports are done by OIG’s Office of Inspection (ISP). That directorate is focused on three broad areas set forth in the Foreign Service Act of 1980: policy implementation, resource management and management controls. The following reports fall under OIG/ISP’s Special Projects and Areas of Emphasis. 

With the end of the fiscal year just two weeks away, here is a recap of the scheduled evaluations by OIG’s Office of Inspection for FY2015 (pdf). The start date of these evaluations was this fiscal year but the final reports may not necessarily be released this month.   We don’t know when these reports will be available and if all will be available publicly, but we’re on the lookout for them. State/OIG says that “our folks are committed to posting them and making them public as soon as we can.”

Cross-Functional: Program Evaluation | Inspectors will determine whether Department bureaus and missions have conducted program evaluations of foreign assistance programs, consistent with OMB Memorandum M-11-29 and the Foreign Affairs Manual (FAM), 18 FAM 300.

Executive: Annual Statement of Assurance on Management Controls | Inspectors will determine whether Chiefs of Mission and Assistant Secretaries understand statement-of-assurance guidance; conduct reviews consistent with guidance; and demonstrate their support for controls verbally and through other means, communicating the importance of ethical behavior and management controls.

Political/Economic: Foreign Assistance Oversight  | Inspectors will determine whether oversight responsibilities are clearly reflected in the position descriptions, work requirement statements, and evaluations of grant officer representatives or contracting officer representatives that spend more than 25 percent of their time overseeing foreign assistance programs.

Public Diplomacy: Social Media Guidance and Clearances | Inspectors will determine whether missions have a strategic plan to guide missions’ use of various types of social media and the level of policy content in that media with respect to target audiences.

Consular: Eligible Family Member Employment in Consular Sections  | Inspectors will examine the effectiveness of eligible family member employment in consular sections and its impact on mission morale.

Information Technology: Key-Loggers  | Inspectors will determine if missions and bureaus have controls in place to detect the existence of key-loggers on mobile computing devices used with the fob.

Security: Regional Security Officer Access to Threat Information  | Inspectors will determine whether Regional Security Officers have access to all required sources of threat information, as recommended in the classified Benghazi Accountability Review Board report.

Security: Department of Defense Support for Embassy Personnel Emergencies  | Inspectors will determine whether DoD is complying with Benghazi Accountability Review Board recommendations related to supporting mission personnel in emergencies.

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State Dept’s Wibbly Wobbly Jello Stance on Use of Private Email, Also Gummy Jello on Prostitution

Posted: 1:38 am EDT
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We’ve added to our timeline of the Clinton Email saga (see Clinton Email Controversy Needs Its Own Cable Channel, For Now, a Timeline).

On August 24, 2015, State Dept. Spokesman John Kirby told CNN:  “At The Time, When She Was Secretary Of State, There Was No Prohibition To Her Use Of A Private Email.” Below is the video clip with Mr. Kirby.

Okay, then. Would somebody please get the State Department to sort something out. If there was no prohibition on then Secretary Clinton’s use of a private email, why, oh, why did the OIG inspectors dinged the then ambassador to Kenya, Scott Gration for using commercial email back in 2012? (See OIG inspection of US Embassy Kenya, 2012).

Screen Shot 2015-08-25

Oh, and here’s a more recent one dated August 25, 2015. The OIG inspection of U.S. Embassy Japan (pdf) says this:

In the course of its inspection, OIG received reports concerning embassy staff use of private email accounts to conduct official business. On the basis of these reports, OIG’s Office of Evaluations and Special Projects conducted a review and confirmed that senior embassy staff, including the Ambassador, used personal email accounts to send and receive messages containing official business. In addition, OIG identified instances where emails labeled Sensitive but Unclassified6 were sent from, or received by, personal email accounts.

OIG has previously reported on the risks associated with using commercial email for official Government business. Such risks include data loss, hacking, phishing, and spoofing of email accounts, as well as inadequate protections for personally identifiable information. Department policy is that employees generally should not use private email accounts (for example, Gmail, AOL, Yahoo, and so forth) for official business.7 Employees are also expected to use approved, secure methods to transmit Sensitive but Unclassified information when available and practical.8

OIG report referenced two cables, we’ve inserted the hyperlinks publicly available online: 11 STATE 65111 and 14 STATE 128030 and 12 FAM 544.3, which has been in the rules book, at least since 2005:

12 FAM 544.3 Electronic Transmission Via the Internet  (updated November 4, 2005)

“It is the Department’s general policy that normal day-to-day operations be conducted on an authorized [Automated Information System], which has the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of the resident information.”

This section of the FAM was put together by the Office of Information Security (DS/SI/IS) under the Bureau of Diplomatic Security, one of the multiple bureaus that report to the Under Secretary for Management.

Either the somebodies were asleep at the switch, as the cliché goes, or somebody at the State Department gave authorization to the Clinton private server as an Automated Information System.

In any case, the State Department’s stance on the application of regulations on the use of private and/or commercial email is, not wobbly jello on just this one subject or on just this instance.

gummy-bears-o

dancing jello gummy bears

On October 16, 2014, State/OIG released its Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security. This review arose out of a 2012 OIG inspection of the Department of State (Department) Bureau of Diplomatic Security (DS). At that time, OIG inspectors were informed of allegations of undue influence and favoritism related to the handling of a number of internal investigations by the DS internal investigations unit. The allegations initially related to eight, high-profile, internal investigations. (See State/OIG Releases Investigation on CBS News Allegations: Prostitution as “Management Issues” Unless It’s NotCBS News: Possible State Dept Cover-Ups on Sex, Drugs, Hookers — Why the “Missing Firewall” Was a Big Deal).

One of those eight cases relate to an allegation of soliciting a prostitute.

The Foreign Affairs Manual (FAM) provides that disciplinary action may be taken against persons who engage in behavior, such as soliciting prostitutes, that would cause the U.S. Government to be held in opprobrium were it to become public.1

In May 2011, DS was alerted to suspicions by the security staff at a U.S. embassy that the U.S. Ambassador solicited a prostitute in a public park near the embassy. DS assigned an agent from its internal investigations unit to conduct a preliminary inquiry. However, 2 days later, the agent was directed to stop further inquiry because of a decision by senior Department officials to treat the matter as a “management issue.” The Ambassador was recalled to Washington and, in June 2011, met with the Under Secretary of State for Management and the then Chief of Staff and Counselor to the Secretary of State. At the meeting, the Ambassador denied the allegations and was then permitted to return to post. The Department took no further action affecting the Ambassador.

OIG found that, based on the limited evidence collected by DS, the suspected misconduct by the Ambassador was not substantiated. DS management told OIG, in 2013, that the preliminary inquiry was appropriately halted because no further investigation was possible. OIG concluded, however, that additional evidence, confirming or refuting the suspected misconduct, could have been collected. For example, before the preliminary inquiry was halted, only one of multiple potential witnesses on the embassy’s security staff had been interviewed. Additionally, DS never interviewed the Ambassador and did not follow its usual investigative protocol of assigning an investigative case number to the matter or opening and keeping investigative case files.

Department officials offered different justifications for handling the matter as a “management issue,” and they did not create or retain any record to justify their handling of it in that manner. In addition, OIG did not discover any guidance on what factors should be considered, or processes should be followed, in making a “management issue” determination, nor did OIG discover any records documenting management’s handling of the matter once the determination was made.

The Under Secretary of State for Management told OIG that he decided to handle the suspected incident as a “management issue” based on a disciplinary provision in the FAM that he had employed on prior occasions to address allegations of misconduct by Chiefs of Mission. The provision, applicable to Chiefs of Mission and other senior officials, states that when “exceptional circumstances” exist, the Under Secretary need not refer the suspected misconduct to OIG or DS for further investigation (as is otherwise required).2 In this instance, the Under Secretary cited as “exceptional circumstances” the fact that the Ambassador worked overseas.3

DS managers told OIG that they viewed the Ambassador’s suspected misconduct as a “management issue” based on another FAM disciplinary provision applicable to lower-ranking employees. The provision permits treating misconduct allegations as a “management issue” when they are “relatively minor.”4 DS managers told OIG that they considered the allegations “relatively minor” and not involving criminal violations.

Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.5

OIG questions the differing justifications offered and recommends that the Department promulgate clear and consistent protocols and procedures for the handling of allegations involving misconduct by Chiefs of Mission and other senior officials. Doing so should minimize the risk of (1) actual or perceived undue influence and favoritism and (2) disparate treatment between higher and lower-ranking officials suspected of misconduct.6 In addition, OIG concludes that the Under Secretary’s application of the “exceptional circumstances” provision to remove matters from DS and OIG review could impair OIG’s independence and unduly limit DS’s and OIG’s abilities to investigate alleged misconduct by Chiefs of Mission and other senior Department officials.

In the SBU report provided to Congress and the Department, OIG cited an additional factor considered by the Under Secretary—namely, that the Ambassador’s suspected misconduct (solicitation of prostitution) was not a crime in the host country. However, after the SBU report was issued, the Under Secretary advised OIG that that factor did not affect his decision to treat the matter as a “management issue” and that he cited it in a different context. This does not change any of OIG’s findings or conclusions in this matter. 

After the SBU report was issued, the Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)). 

During the course of that review, State/OIG said it discovered some evidence of disparity in DS’s handling of allegations involving prostitution. Between 2009 and 2011, DS investigated 13 prostitution-related cases involving lower-ranking officials.

The OIG apparently, found no evidence that any of those inquiries were halted and treated as “management issues.”

.

Also, have you heard?  Apparently, DEA now has an updated “etiquette” training for its agents overseas.

That’s all.

Is there a diplomatic way to request that the responsible folks at the State Department culture some real backbone in a petri-dish?

No, no, not jello backbone, please!

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NYT: Criminal Inquiry Sought Over Clinton Emails? Read the Inspector Generals Memos

Posted: 9:45 am PDT
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Related to The New York Times report Thursday night, Criminal Inquiry Is Sought in Clinton Email Account, here are the memos from the inspectors generals of the State Department Steve Linick and Intelligence Community Inspector General I. Charles McCullough, III.  The memos include the response from Under Secretary for Management Patrick Kennedy. The memos from the IGs are cc’ed to Heather Higginbottom, the Deputy Secretary for Management and Resources (D/MR). The response from U/S Management contains no courtesy copies. Trying to read as fast as I could to find that section where the IGs have requested a criminal inquiry.

ESP-15-04-05 | Potential Issues Identified by the Office of the Inspector General of the Intelligence Community Concerning the Department of State’s Process for the Review of Former Secretary Clinton’s Emails under the Freedom of Information Act (pdf)

Summary:

Intelligence Community Inspector General (ICIG) staff conducted a preliminary assessment of the Department’s ongoing Freedom of Information Act (FOIA) process for the Clinton emails, including 296 emails publicly released by the Department on May 22, 2015. This preliminary assessment identified four areas that require immediate attention by Department leadership.

  • Attachment #A contains OIG’s and ICIG’s Memorandum, dated June 19, 2015, which makes four recommendations related to these areas.
  • Attachment #B contains U/S Patrick Kennedy’s June 25, 2015, and July 14, 2015, responses. Based on these responses, OIG and ICIG consider two of these recommendations to be closed, whereas the other two remain unresolved.
  • Attachment #C contains more detailed information about the status of each recommendation.

On June 29, 2015, OIG and ICIG sent U/S Patrick Kennedy a follow-up memorandum providing additional information supporting their concerns about the FOIA process used for the Clinton emails (see Attachment #D). Since then, ICIG has received confirmation from lC FOIA officials that several of these emails contained classified IC information, though they were not marked as classified. In addition, at least one of these emails has been released to the public and can be accessed on the Department’s FOIA website.

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Rabbit Hole News: State Dept’s Private Email Usage Policy, Plus Attn: State/OIG – Firecracker Coming Your Way

Posted: 01:47 EST
Updated: 11:19 EST
Updated 15:14 EST
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Shortly after the NYT broke the story about the former secretary of state’s exclusive used of a personal email account to conduct government business, we sent an inquiry to the State Department’s Office of Inspector General. We don’t know if they could comment about it but we wanted to ask anyway.  We’ve looked at the regs but the FAM is silent on the use of private email, or at least we thought it was. It almost seem as if the rule makers presumed that all employees will be using official email, thus, the rules only spell out the requirement for the preservation of records.

If Secretary Clinton was using a private email account and if her close advisers were also using private email accounts, we wanted to know how is this reconciled with the ability of individuals to FOIA government documents. We were also interested how this would keep other senior or even regular employees from using Yahoo or Gmail to conduct official business.

State/OIG’s response was, “we are not in a position to comment at this time.”

Actually, we asked the wrong questions.

In 2012, we blogged about the OIG inspection report of the U.S. Embassy in Kenya. (See State/OIG Releases Ambassador Scott Gration’s Embassy Report Card – And Look, No Redactions!). We mentioned in passing the ambassador’s use of commercial email for official government business. In light of these news reports that Secretary Clinton exclusively used nongovernment email during her four year tenure as secretary of state, the old 2012 report is getting some legs again.

 

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Below is an excerpt from that 2012 report specifically addressing the ambassador’s use of commercial email for daily communication of official government business. The ambassador was also slammed for using “a government-owned laptop that is not physically or electronically connected to the Department’s OpenNet network.”  

Mission Leadership Challenge 

Very soon after the Ambassador’s arrival in May 2011, he broadcast his lack of confidence in the information management staff. Because the information management office could not change the Department’s policy for handling Sensitive But Unclassified material, he assumed charge of the mission’s information management operations. He ordered a commercial Internet connection installed in his embassy office bathroom so he could work there on a laptop not connected to the Department email system. He drafted and distributed a mission policy authorizing himself and other mission personnel to use commercial email for daily communication of official government business. During the inspection, the Ambassador continued to use commercial email for official government business. The Department email system provides automatic security, record-keeping, and backup functions as required. The Ambassador’s requirements for use of commercial email in the office and his flouting of direct instructions to adhere to Department policy have placed the information management staff in a conundrum: balancing the desire to be responsive to their mission leader and the need to adhere to Department regulations and government information security standards. The Ambassador compounded the problem on several occasions by publicly berating members of the staff, attacking them personally, loudly questioning their competence, and threatening career-ending disciplinary actions. These actions have sapped the resources and morale of a busy and understaffed information management staff as it supports the largest embassy in sub-Saharan Africa.

Authorized Automated Information Systems 

The Ambassador uses a government-owned laptop that is not physically or electronically connected to the Department’s OpenNet network. Authorized Department OpenNet email systems are available on the Ambassador’s office desktop. According to 12 FAM 544.3 and 11 State 73417 (from the Assistant Secretary for Diplomatic Security to the Ambassador), it is the Department’s general policy that normal day-to-day operations be conducted on an authorized information system, which has the proper level of security controls. The use of unauthorized information systems increases the risk for data loss, phishing, and spoofing of email accounts, as well as inadequate protections for personally identifiable information. The use of unauthorized information systems can also result in the loss of official public records as these systems do not have approved record preservation or backup functions. Conducting official business on non-Department automated information systems must be limited to only maintaining communications during emergencies.

Recommendation 57: Embassy Nairobi should cease using commercial email to process Department information and use authorized Department automated information systems for conducting official business. (Action: Embassy Nairobi)

Source:  Inspection of Embassy Nairobi, Kenya | Report Number ISP-I-12-38A, August 2012 | pdf

 

We should point out that the 2012 report was issued prior to the tenure of IG Steve Linick and Secretary Clinton tenure at the State Department ended in February 2013.  But with 2016 just around the corner, this email debacle will not die a quiet death.

The unclassified cable  STATE 065111 on securing email accounts sent to all overseas posts on June 28, 2011 only says “avoid conducting official Department business from your personal email accounts.”

See the magic word there? It did not say you can’t, only that you shouldn’t.

So for the second day in a row, the subject of the Clinton emails was featured in the Daily Press Briefing. The State Department’s deputy spox, Marie Harf was impressive when she said that “There was no prohibition” on the use of personal email.  She emphasized that “There was not then and there is not now a prohibition on using a personal email for official business, and at the time she was in office, there was no time requirement for when those needed to be preserved as records.”

Entertainment value? High.

In any case, the question that we probably should have asked the OIG is this — if an ambassador was “hammered” for his use of nongovernment, private email, can we presume that ordinary bureaucrats would get a similar treatment? And if this is so  — don’t we then have a set of rules that applied to everyone but the head of the agency?   We originally cited 5 FAM 440 (pdf) as the rules governing  Electronic Records, Facsimile Records, and Electronic Mail Records in the State Department.  But wait —  the 2012 OIG report on Kenya cited 12 FAM 544.3 Electronic Transmission Via the Internet (pdf), a section of the FAM that has been in the rules books since 2005. It says in part:

It is the Department’s general policy that normal day-to-day operations be conducted on an authorized AIS [automated information system], which has the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of the resident information. The Department’s authorized telework solution(s) are designed in a manner that meet these requirements and are not considered end points outside of the Department’s management control.
[…]
c. Employees should be aware that transmissions from the Department’s OpenNet to and from non-U.S. Government Internet addresses, and other .gov or .mil addresses, unless specifically directed through an approved secure means, traverse the Internet unencrypted. Therefore, employees must be cognizant of the sensitivity of the information and mandated security controls, and evaluate the possible security risks and then decide whether a more secure means of transmission is warranted (i.e., secure fax, mail or network, etc.)

d. In the absence of a Department-provided secure method, employees with a valid business need may transmit SBU information over the Internet unencrypted after carefully considering that:

(1) SBU information within the category in 12 FAM 541b(7)(a) and (b) must never be sent unencrypted via the Internet;

(2) Unencrypted information transmitted via the Internet is susceptible to access by unauthorized personnel;

(3) Email transmissions via the Internet generally consist of multipoint communications that are routed to their destination through the path of least resistance, which may include multiple foreign and U.S. controlled Internet service providers (ISP);

(4) Once resident on an ISP server, the SBU information remains until it is overwritten;

(5) Unencrypted email transmissions are subject to a risk of compromise of information confidentiality or integrity;

(6) SBU information resident on personally owned computers connected to the Internet is generally more susceptible to cyber attacks and/or compromise than information on government owned computers connected to the Internet;

(7) The Internet is globally accessed (i.e., there are no physical or traditional territorial boundaries). Transmissions through foreign ISPs or servers can magnify these risks; and

(8) Current technology can target specific email addresses or suffixes and content of unencrypted messages.

 

General policies, of course, can have exceptions and if that’s what happened here, wouldn’t it be nice to know who were granted exceptions to use private email accounts besides the secretary of state and why? And did the Legal Advisor or somebody else signed off on those exceptions? Was the clintonemail.com server an authorized AIS [automated information system] of the State Department, and if so, who authorized it?

We cannot predict where this email controversy is going to end, but some Internet sleuth is digging up Dubai, Denmark, Luxembourg in what seems to be an already convoluted matter.  If you read the link below there is an interesting question whether the Clinton e-mail server was hosted for some period of time by an outside hosting firm.  If the hosting firm was based overseas at an external location in Texas or elsewhere,  wouldn’t this be an added headache for cybersecurity and something the OIG’s new Office of Evaluations and Special Projects (ESP) might be interested in?

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While the Inspector General of the State Department might not be in a position to comment about this issue publicly at this time, or might not want to wade into the rabbit hole with this political firecracker, it may not have much of a choice.  Even our apolitical neighbors were dismayed by this.  The perception that the rules may have been applied selectively, based on rank undermines the Service.  That in itself is an excellent excuse to review the entire practice and determine to what extent exceptions were made.  The Republican National Committee has reportedly already asked the Office of Inspector General to look into whether Clinton’s practices led her or the department to violate the Federal Records Act.

It’s only a matter of time before there is a formal congressional request. Heads up State/OIG, this firecracker is heading your way.

* * *

Related post:
So wait — Hillary Clinton never got a state.gov email? What does the FAM say?

Related items:

State Department June 28, 2011 Unclassified Cable 065111 on Securing Email Accounts via (foxnews)

NARA Bulletin 2014-06 | September 15, 2014 – Guidance on Managing Email

NARA Bulletin 2013-03 | September 9, 2013 – Guidance for agency employees on the management of Federal records, including email accounts, and the protection of Federal records from unauthorized removal

NARA Bulletin 2011-03 | December 22, 2010 – Guidance Concerning the use of E-mail Archiving Applications to Store E-mail

OMB | Managing Government Records Directive requires that Federal agencies manage all their email electronically by December 31, 2016.

 

 

 

A Perfect Case for OIG’s Office of Evaluations & Special Projects: How the Visa Waiver Sausage Gets Made

— Domani Spero
[twitter-follow screen_name=’Diplopundit’ ]

 

In 2004, Alden P. Stallings, a Foreign Service Officer pleaded guilty for writing false visa referrals. According to DOJ, Stallings was assigned to the U.S. Embassy in Seoul, Korea as the Deputy Public Affairs Officer when he submitted to the Consular Section 54 referrals in which he provided false information about his relationship with the applicants. DOJ charged that on each of the 54 referral forms, Stallings stated that he recommended the issuance of a non-immigrant visa to the applicant because the applicant was an “important post contact” whom he had “personally known” since a specified date. In fact, on each of the 54 occasions, Stallings knew that his statement on the referral form was false, and that he did not personally know the contact.

At the time Stallings pleaded guilty,he faced a maximum sentence of five years in prison and a $250,000 fine, and that case effectively ended his career.

But hey, is it true that if you are in a senior position or a congressional representative,  a personal intervention on behalf of a rejected visa applicant — who allegedly brought foreign maids into the country under false visa pretenses, and donated money to political campaigns — is A-okay?

Via the NYT:

The Obama administration overturned a ban preventing a wealthy, politically connected Ecuadorean woman from entering the United States after her family gave tens of thousands of dollars to Democratic campaigns, according to finance records and government officials.

The woman, Estefanía Isaías, had been barred from coming to the United States after being caught fraudulently obtaining visas for her maids. But the ban was lifted at the request of the State Department under former Secretary of State Hillary Rodham Clinton so that Ms. Isaías could work for an Obama fund-raiser with close ties to the administration.

It was one of several favorable decisions the Obama administration made in recent years involving the Isaías family, which the government of Ecuadoraccuses of buying protection from Washington and living comfortably in Miami off the profits of a looted bank in Ecuador.
[…]
In the spring of 2011, Ms. Isaías, a television executive, was in a difficult situation.

Her father and uncle were Ecuadorean fugitives living in Miami, but she was barred from entering the United States after she brought maids into the country under false visa pretenses and left them at her parents’ Miami home while she traveled.

“Alien smuggling” is what American consular officials in Ecuador called it.

American diplomats began enforcing the ban against Ms. Isaías, blocking her from coming to Miami for a job with a communications strategist who had raised up to $500,000 for President Obama.
[…]
Over the course of the next year, as various members of the Isaías family donated to Mr. Menendez’s re-election campaign, the senator and his staff repeatedly made calls, sent emails and wrote letters about Ms. Isaías’s case to Mrs. Clinton, Ms. Mills, the consulate in Ecuador, and the departments of State and Homeland Security.

After months of resistance from State Department offices in Ecuador and Washington, the senator lobbied Ms. Mills himself, and the ban against Ms. Isaías was eventually overturned.
[…]
David A. Duckenfield, a partner at the company who is now on leave for a position as deputy assistant secretary of public affairs at the State Department, said Ms. Isaías worked for the firm but declined to comment further. Another senior executive at the firm said she must work outside the office because he had never heard of her.
[…]
“There are rigorous processes in place for matters such as these, and they were followed,” said the spokesman, Nick Merrill. “Nothing more, nothing less.”

A White House spokesman, Eric Schultz, declined to comment, saying that visas are issued free from political interference by other federal agencies.

Mr. Boehm, the former Pennsylvania prosecutor, said Senate ethics rules allowed members of Congress to reach out to the administration on behalf of a constituent. “Members of Congress do a lot for their constituents,” Mr. Boehm said.

“These folks are not his constituents,” he added, referring to Mr. Menendez.

See the whole report here: Ecuador Family Wins Favors After Donations to Democrats. 

Pardon me? Ah, yes, the vomitorium is next door to the right, please don’t make a mess.

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