Advertisements

Deputy Secretary Sullivan’s Town Hall With @StateDept Employees Now in Gifs

Posted: 3:09 am ET

 

On August 8, while Secretary Tillerson remains on travel, Deputy Secretary John Sullivan had a town hall with employees at the State Department.  The event was closed to the press though there was one report filed soon after it concluded. We’ve got thoughts about this, so we wrote Why Tillerson Not Sullivan Needs the Town Hall: Morale Is Bad, “S” is Accountable.

Now, we think that this town hall was put together in a hurry to counter the deluge of bad press that’s been flooding our inboxes about the State Department, and Secretary Tillerson in particular. Why do we think that? Because Mr. Sullivan, who we’re told is personable and likable, was not as prepped as he should have been if this was appropriately planned. Secretary Tillerson is on travel from August 5-9, so a wait of 48-72 hours after his return to hold a town hall would have been feasible. But somebody must have decided that the negative reports have reached a tipping point and that they must be addressed before Tillerson returns to office. So now that his deputy has held one, Secretary Tillerson no longer has to do one. Or not immediately. According to Mr. Sullivan, Secretary Tillerson will do one in three months, “He’s going to do one in three months, and it will be the same format as I used today.”

The State Department obviously want the press corps to write about the town hall, how the deputy secretary is taking questions from employees, and answering them, and to impress upon media folks that things are going well in Foggy Bottom. And yet, the event was closed to the press. We are guessing that the State Department wanted good press clips, but did not really want members of the media to witness the question and answer. Unscripted things happen in those events, sometimes embarrassing ones and reporters could write up those stuff. And then you have a bigger fire.

As far as we are aware, no video was posted of the town hall and no transcript was made publicly available, though there are a few photos. But after the event concluded, the State Department made Deputy Secretary Sullivan available for On-the-Record Briefing With the State Department Press Corps.  We’re hearing from Mr. Sullivan, but we’re not hearing from the folks who asked him questions. See the interesting gap there? In any case, here are the things that we found notable from Mr. Sullivan’s on-the-record briefing. We’ll address the interesting gap next time.

Hitting on all cylinders!

John J. Sullivan: “So we’ve been very busy; he’s been very busy, supported by our great Foreign Service and Civil Service here at the State Department. So the notion that’s been out in the press and in the media of a hollowed-out State Department that is not effective, I think, is counterfactual, and the fact that the Secretary and the department have been able to accomplish what they have is evidence of the fact that we are hitting on all cylinders even though we don’t have the full complement of political appointees that we should have.”

 

 

Frozen, who’s frozen?

JJS: “I don’t think anyone would say – no one here would say that we’re pleased by the fact that we don’t have more of our under secretary and assistant secretary slots filled, but we’re working hard to do that. Those slots are not being – those slots are not being frozen or not filled because of the redesign that’s underway. […] So I think the last stat I saw was that we have roughly 60 percent of the unders and assistant secretaries slots either confirmed, nominated, or in the process, so getting – undergoing the security clearance review and so forth. And we hope to get all of those slots filled as quickly as we can.”

Is @StateDept Reporting Its Vacant Positions Under the Vacancies Reform Act? Barely, According to GAO Database

via tenor.com

 

Five working groups — who are you people?

JJS: “But the redesign is in midstream. It’s really the – we’ve really hit our stride, and this month is going to be a key one for the working groups that are leading the effort on – there are five working groups that are leading the effort on redesigning the State Department. And I’d be happy to give you a little more detail on that if you would like to hear about that. […] So whether it was the mission statement that I was talking about earlier, the draft mission statement, to reorganization of the – of bureaus, that’s all going to be fed up through this redesign process, employee-led, and with input over time this month – later this month from other interested stakeholders, whether it’s senior leaders of bureaus in the department, union – unions – AFSA, for example, OMB, members of Congress. So we’re going to be as transparent as possible as we go forward and reach final decisions on these issues, and eventually implement them.”

COMMENT: Oh, yes, we’re interested on more details about these working groups. Who are in these five working groups? How were they selected? Who selected them? How transparent was the selection? Where can we find their names? How long are they expected to work in these groups. Have they been detailed to these groups or are these their collateral duties?

Growing Body of Work on Rex Tillerson’s Stewardship of the State Department

Why ‘Rexit” Is Not Happening Anytime Soon, in Rex Tillerson’s Own Words

via tenor.com

 

Hold on, the noise is coming from the building!

JJS: “I am from Boston and a New England Patriots fan, and those of you who know football know Bill Belichick’s motto is: Do your job and don’t pay attention to the noise out there. But in this town, it’s kind of hard to miss when your friends and colleagues start calling you and emailing you about the latest article that appeared.”

 

Helllooooo A/GIS/DIR – show yourself!

JJS: “And what we’ve discovered is that over the last seven years or more there have been hundreds of delegations of authority that no one had kept track of and there was no central either registry or system so that a current assistant secretary would know exactly what had been delegated to her or to him.”

COMMENT: Per regulations dated March 1, 2010, the State Department’s Office of Directives Management (A/GIS/DIR) under the Bureau of Administration (presently carrying on without an Assistant Secretary) manages the Department of State’s Delegations of Authority Program. It processes delegations of authority for publication in the Federal Register, and — get this — maintains the Department’s inventory of delegations of authority, including the Web-based Delegation of Authority Database.  So A/GIS/DIR assigns appropriate serial numbers to delegations of authority and maintains the Department’s records of official delegations. In addition, A/GIS/DIR maintains an electronic listing and database of all current and rescinded Department delegations on the A/GIS/DIR website.

WHO KNEW? 

Via Imgur

 

John, call your office now!

JJS: “So there are elements of truth in some of these stories, whether it’s about the delegation of authority or about the mission statement, but then they’re twisted in a way that makes it sound as though the Secretary is out of touch, mismanaging, whatever. [….] So I think there’s really a misperception both of the department and what we’re doing and his role in the department.”

COMMENT: The State Department should have every opportunity to respond to stories we write about it. They lost that opportunity when they banned this blog and refused to respond to email inquiries. See our original post on delegations of authority: Tillerson Rescinds Delegated Authorities Department-Wide, Further Gums Up Foggy Bottom). See our follow-up here: Making Sense of Tillerson’s Rescinded Delegations of Authority @StateDept/ .

As recently as last week, we asked about a specific case regarding a DS agent accused of rape and stalking. But all there are … are crickets (See A Woman Reported to Diplomatic Security That She Was Raped and Stalked by a DS Agent, So What Happened?). Hey, we’ve also asked about the “Naughty List” but still got crickets ….so anyways, we got work to do …

 

Noooo! Not the 1960’s or why Colin Powell should call in to protest

JJS: “I – once I asked – I won’t name him by name, because I don’t want to drag him into a news story, but I asked a retired, very senior Foreign Service officer – I had lunch with him not – just before I got – just before I came on board here. I asked him about what he knew about morale at the State Department, and he said morale at the State Department is very low. He said, “It was low when I started in 1960 and it’s still low. It’s the nature of the State Department.”

COMMENT: We wrote a bit about Colin Powell here: Why Tillerson Not Sullivan Needs the Town Hall: Morale Is Bad, “S” is Accountable.

 

Congrats, it was all for nothing!

JJS: “I think it’s almost 800 EFMs that have been approved since this – the hiring freeze was imposed.”

COMMENT: We’ve said this before and we’ll say this again. Whether the State Department is successfully reorganized or not, there will remain a need for community liaison coordinators, security escorts, consular associates, mailroom clerks, security coordinators, etc. at our overseas posts. So the freeze on these jobs did not make a whole lot of sense in the first place. But it did make life at overseas posts more difficult for employees who have to cover for these unfilled positions, and make for distressed diplomatic spouses who already suffer from extended under employment when they go overseas.

See Unemployment Status of @StateDept Family Members Overseas (4/2017) #ThanksTillerson

Oy! That Rumor About Foreign Service Family Member Employment as “Corporate Welfare”;
Are #EFM positions literally about to become…extinct under #Tillerson’s watch?;
No thaw in sight for @StateDept hiring freeze until reorganization plan is “fully developed”

 

Making Ops Center Watchstanders’ Lives Easier Soon!

JJS: “We don’t put a lot of – we don’t have a huge budget for things. We have a budget for people and we’re going to organize ourselves better, to use our people better, to – excuse me, to put our people and our employees in a position to do their jobs more effectively and efficiently, and to make their – make their jobs, their professional lives easier.”

COMMENT: The State Department is making folks’ professional lives easier already. And it’s starting with the watchstanders at the Operations Center. The State Department has directed that Ops tours should now be two years instead of 13 months. The nomination request cable went out already. For the first time ever, the Ops Center will have officers working insane shifts on two year rotations 24/7. More on that later. And they’re making lives easier for families, too. We’ve been hearing issues with umbrella schools for homeschooling families and issues with allowances related to Foreign Service children with special needs.

Image via Canadian Foreign Service Problems

#

 

Advertisements

@StateDept Spins the Russia Sanctions, Fails to Impress Regular Folks

Posted: 12:01 am ET

 

 

Continue reading

Tillerson Rescinds Delegated Authorities Department-Wide, Further Gums Up Foggy Bottom

Posted: 12:19 am ET
Updated: 9:05 pm PT

 

According to the Foreign Affairs Manual (FAM), a delegation of authority states the specific actions for which an officer has authority, as well as the limitations and special conditions that apply to the authority. A delegation of authority is subject to any legally prescribed condition or criteria of execution, whether or not mentioned in the delegation. The FAM identifies two authorities:

(1) Authorities originally assigned to the Secretary or the Department: Unless otherwise specified in law, the Secretary of State may delegate authority to perform any of the functions of the Secretary or the Department of State to officers and employees under the direction and supervision of the Secretary. If the Secretary so specifies, such functions may be redelegated by the delegated officer or employee to any officers and employees under the delegated officers direction and supervision (see 22 U.S.C. 2651a); and

(2) Authorities originally assigned to the President: If an authority was originally assigned to the President, there must be a delegation of authority from the President to the Secretary or the Department before a Department of State delegation of authority to a Department officer can be signed. In addition, unless otherwise specified in law, authorities originally delegated from the President may only be redelegated to officials who are appointed by and with the advice of the Senate (see 3 U.S.C. 301).

We heard from sources that Secretary Tillerson has rescinded all delegated authorities last week. The two sources are not Public Affairs shop officials.  The revocation of authorities is department-wide and includes everything apparently from the Authorization for Use of Military Force (AUMF), the Joint Comprehensive Plan of Action (JCPOA) sanctions, and  even routine authorities related to military exercises. 

One called it “completely insane.”

Another said, “Basically it’s a clusterfuck.”

Icky, Sticky Bubble Gum’s Gonna Eat Ya

The Bureau of Administration’s A/GIS/DIR is supposed to maintain a database of delegated authorities including those rescinded. But, of course, those are not public.  On July 20, the Federal Register published the May 1 delegation of authority by Tillerson to the Director of the Office of U.S. Foreign Assistance Resources.

Below are some examples of delegated authorities:

Secretary of State to the Assistant Secretary for Diplomatic Security:  Diplomatic The Secure Embassy Construction and Counterterrorism Act of 1999 (Foreign Relations Authorization Act, FY 2000 and 2001, Title VI, Public Law 106-113) (22 U.S.C. 4865), established two security requirements for U.S. diplomatic facilities abroad:  collocation and setback.  The authority to waive these requirements has been delegated from the Secretary of State to the Assistant Secretary for Diplomatic Security, except for chancery and consulate buildings.

OFM’s Director and Deputy Director: Requests from foreign missions for the Department to certify to the Department of the Treasury the reciprocal income tax exemption privileges that are provided to employees of the U.S. mission in the respective country.  Such certifications are required under 26 U.S.C. 893(b).  The authority to make such certifications has been delegated to OFM’s Director and Deputy Director.

Deputy Legal Advisers: Per 22 CFR 172.4 and 172.5 (approval of testimony and production of documents by Department employees, delegated to the Deputy Legal Advisers by Delegation of Authority No. 206, dated September 7, 1993).

Under Secretary for Management : The Secretary of State is responsible for control of the organizational structure and assignment of functions in the Department of State.  The Secretary has delegated this authority to the Under Secretary for Management (M). Other authorities delegated to M are (not an exhaustive list):  

  • Department of State Delegation of Authority No. 311, Negotiation, Conclusion and Termination of Treaties and Other International Agreements; 
  • Department of State Delegation of Authority No. 147, Delegation of Authorities vested in the Secretary by Title II of the Basic Authorities Act (primarily foreign mission administration), dated September 13, 1982; 
  • Department of State Delegation of Authority No. 147-1, covering acceptance of gifts and vehicles overseas, dated December 21, 1990.

Bureau of Consular Affairs: We don’t know how many delegated authorities there are in totality but the Bureau of Consular Affairs alone has 27 delegated authorities going back to 1969. We understand that this was recently just been renegotiated.  Here are some (not an exhaustive list):

  • Delegation of Authority 119 (2/13/1969):  Authority to designate persons who shall be authorized and empowered to administer oaths in connection with the execution of passport applications.
  • Delegation of Authority 143 (10/30/1981):  Delegation of Authority to Issue Certificates of Authentication for Documents Maintained by the Office of Passport Services Department of State.
  • Delegation of Authority 253 (9/1/2002):  Delegation from the Secretary of State to the Assistant Secretary for Consular Affairs Exceptions from Port-of-Entry Special Registration, Fingerprinting and Photographing (Class A Referrals).
  • Delegation of Authority 261 (9/16/2003):  Intercountry Adoption Act of 2000 – Authority of the Secretary of State under the Hague Adoption Convention and the IAA delegated to the Assistant Secretary for Consular Affairs.
  • Delegation of Authority 361 (7/15/2013):  Authority to disclose certain visa information to national security officials for a national security purpose.
  • Delegation of Authority 298 (4/9/2007):  Delegation by the Assistant Secretary for Consular Affairs to the Deputy Assistant Secretary for Overseas Citizens Services; the Managing Director, Overseas Citizens Services; the Director, Office of Children’s Issues, Overseas Citizens Services; and the Director, Office of American Citizens Services, Overseas Citizens Services, of Authority to Issue Hague Adoption Certificates and Custody Declarations.
  • Delegations of Authorities 367 (9/17/2013)and 367-3 (3/30/2015): Authority to administer and enforce immigration and nationality laws, and re-delegation of certain of those authorities to CA/VO, CA/VO/L/A, and CA/VO/L/R.

So this is really bonkers. Whoever advised Tillerson to rescind the delegation of authorities department-wide could not possibly be this dumb because this is one quick way of gumming up further the entire agency. Much more than it already has been gummed up.

Why yes, if you need a pass for the State Department parking garage, you have to ask Tillerson’s Front Office for that, too.

The parking garage permit needs the 7th Floor approval. Just think about that.

Continue reading

ExxonMobil “demonstrated reckless disregard for U.S. sanctions” – @StateDept says go over there for QQQs!

Posted: 12:42 am ET

 

The State Department spokesperson Heather Nauert did one of her twice a week Daily Press Briefing at the State Department and was asked about the Treasury Department’s Exxon fine for violating the Russian sanctions when Secretary Tillerson was the CEO. A quick note here.  We realized that they’ve changed the name of this briefing into “Department Press Briefing” but as a daily reminder that the Bureau of Public Affairs is now unable to handle the daily demands of briefing the press, we will continue calling this the State Department’s Daily Press Briefing.

Below are excerpts from the DPB:

MS NAUERT: The Secretary – we’re not going to have any comments today for you on some of the alleged facts or the facts underlying the enforcement action. Treasury is going to have to answer a lot of these questions for you. I’m not going to have a lot for you on this today. The Treasury Department was involved in this. They were the ones who spearheaded this. And so for a lot of your questions, I’m going to have to refer you to Treasury.

MS NAUERT: Yes. I’m not going to comment on that at this time. The Secretary recused himself from his dealings with ExxonMobil at the time that he became Secretary of State. This all predates his time here at the Department of State, and so —

MS NAUERT: I think I will say this: The Secretary continues to abide by his ethical commitments, including that recusal from Exxon-related activities. The action was taken by the Department of State – excuse me, the Department of the Treasury, and State was not involved in this.

QUESTION: And does – can you tell us if the Secretary believes in the objectives of the Ukraine-related sanctions programs?

MS NAUERT: I know that we have remained very concerned about maintaining sanctions. That will continue. We’ve been clear that sanctions will continue until Russia does what Russia needs to do.

QUESTION: For the record, will he come down and talk with us —

MS NAUERT: Well, I’m sorry, who —

QUESTION: — talk about this? Just for the record, will he come down and talk about this to us himself?

MS NAUERT: Well, I’m here to speak on his behalf and on behalf of the building. There’s not a whole lot that we can say about this right now. Again, you can talk to Treasury or to Exxon about this. Okay.

MS NAUERT: The Secretary has been – not to my knowledge. I can tell you this, that he has been extremely clear in his recusal of anything having to do with Exxon. When this information come to us here at the State Department, it did not come to the Secretary himself. It came to the Deputy Secretary John Sullivan. The Secretary has taken this very seriously, that Exxon-related activities are not something that he is involved with here as Secretary of State.

#

In assessing the maximum monetary penalty, Treasury/OFAC outlined the following as aggravating factors (via):

(1) ExxonMobil demonstrated reckless disregard for U.S. sanctions requirements when it failed to consider warning signs associated with dealing in the blocked services of an SDN; (note: Specially Designated Nationals)

(2) ExxonMobil’s senior-most executives knew of Sechin’s status as an SDN when they dealt in the blocked services of Sechin;

(3) ExxonMobil caused significant harm to the Ukraine-related sanctions program objectives by engaging the services of an SDN designated on the basis that he is an official of the Government ofthe Russian Federation contributing to the crisis in Ukraine; and

(4) ExxonMobil is a sophisticated and experienced oil and gas company that has global operations and routinely deals in goods, services, and technology subject to U.S economic sanctions and U.S. export controls.

U.S. Secretary of State Rex Tillerson delivers remarks at the 22nd World Petroleum Congress opening ceremony in Istanbul, Turkey, on July 9, 2017. [State Department photo/ Public Domain]

 

AND NOW THIS — the State Department’s “employee-led redesign initiative” with no “predetermined outcomes” is a runner up for “Best in Show.”

#

@StateDept Deputy Spokesperson Mark Toner Says Goodbye

Posted: 12:49 am ET

 

Mark Toner is a career Foreign Service Officer who has served overseas in West Africa and Europe. He was the Information Officer in Dakar, Senegal; the Public Affairs Officer in Krakow, Poland; and the Spokesman for the U.S. Mission to NATO, in Brussels, Belgium. On June 1, 2015, he assumed the role of Deputy Spokesperson after serving at the Bureau of European and Eurasian Affairs as a Deputy Assistant Secretary.

As a career FSO, Mr. Toner has previously worked as a senior advisor for the Senate Foreign Relations Committee; as a Senior Watch Officer in the Department’s Operations Center; and as the Director of the European Bureau’s Press and Public Outreach Division. Mr. Toner has an undergraduate degree from the University of Notre Dame and a graduate degree from National Defense University’s Industrial College of the Armed Forces. Prior to joining the State Department, he was a Peace Corps volunteer in Liberia, West Africa, and carried out graduate work in Journalism at the University of California at Berkeley.

As Deputy Spokesperson, he is one of the most public faces of the State Department.  He did his last Daily Press Briefing on April 27, 2017:

Via DPB, April 27, 2017

This is, believe it or not, my last briefing as deputy spokesman. It’s with mixed feelings that I reach this moment, because I’ve loved this job. Honestly, I was just telling a group of young kids who were brought in to Take Your Child to Work Day earlier today that, to me, this was the greatest honor that I could ever hope to have as a Foreign Service officer. I came out of journalism school into this gig, and I always thought this would be one of the greatest jobs to have within the Foreign Service. And I’ve enjoyed working with all of you over the years through good times and bad times and some really tough days at the podium, but I respect fundamentally with all of my heart the work that all of you do in carrying out your really important roles in our democracy, and I want you to know that.

I’m also very, very happy that I can pass the baton, the spokesperson baton – there is one, in fact – no – (laughter) – over to such a capable person as Heather Nauert, who is getting up to speed on all these issues but will be taking the podium and carrying on the daily press briefings and acting as the department spokesperson going forward. So anyway, just appreciate all the support that you’ve given me over the years.

Matt, over to you.

QUESTION: Thanks, Mark. And before I start with my policy question, I just wanted to note the lack of children in the room today on the Take Your Work to – Take Your Kids to Work Day and recall how many years ago it was when you were sitting there with —

MR TONER: I told that story, actually. (Laughter.)

QUESTION: — with a bunch of kids in the audience and one of the main topics of the day being the antics or/ behavior of some Secret Service agents in Colombia and how delicately we danced around that topic.

MR TONER: Indeed, indeed. As we’re doing right now. (Laughter.)

QUESTION: But that story also just – it brings to mind the fact that you have served in this position in PRS as spokesman on and off for many years. And I think on behalf of the press corps, I want to thank you for those years of service, particularly since January over the course of the last couple months when things have been, as they often are, in transitions, unsettled to say the least. And through it all, you’ve been incredibly professional and really just, I think, the model of the kind of career Foreign Service or Civil Service officer.

So on behalf of all of us and on behalf of the public, the American public, thank you. (Applause.)

MR TONER: Thanks, Matt. I really appreciate that. Thank you. (Applause.)

QUESTION: Good luck. And I am sure you’ll enjoy not having to be —

MR TONER: I’ll miss it in a couple weeks.

QUESTION: — attacked with questions for —

MR TONER: Thank you.

QUESTION: May I say a word, Matt?

QUESTION: Yeah.

QUESTION: I want to thank you especially – I’ve known you for many, many years. I mean, I’ve attended briefings all the way back to Richard Boucher. You have been really solid and professional. I never once took your accommodating me for granted or indulging me all throughout. I really appreciate it. You have always been there for us. So Godspeed and good luck.

MR TONER: Thank you. All right, thanks. Enough of this sentimentality. (Laughter.)

QUESTION: Rank sentimentality.

MR TONER: Yeah, there you go. Rank sentimentality.

QUESTION: So let’s go to the most unsentimental thing you can think of, North Korea.

#

@StateDept Finally Solves Mystery of the Doctored Daily Press Briefing Video — Elvis Did It!

Posted: 3:19 am ET

 

After calling the editing mystery of the video tape “a bit of a dead end,” and after Secretary Kerry called the doctoring of the Daily Press Briefing tape “stupid and clumsy and inappropriate,” the State Department informed the press on June 8 that the agency’s Office of the Legal Adviser (L) is continuing to look into the matter.

Also see:

 

On August 18, the State Department’s spox updated members of the press of the internal review.  The Legal Adviser’s office apparently did talk to 30 current and former employees. The office has now come up with “a fact-finding review” that was submitted to Secretary Kerry, the Congress and the Inspector General. The review is inconclusive — spox says it was a deliberate act, they don’t know why or who was responsible for asking the “edits” but it can’t be nefarious or anything like that.

Note that HFAC Chairman Royce has previously requested an investigation by the Inspector General. If there is an OIG investigation in addition to the Legal Adviser’s review, we could be looking at dueling reports.  It looks like the Legal Adviser’s review might be released publicly at some later date but the spox did not indicate when.  Meanwhile, there is one lawsuit already.

Via the Daily Press Briefing with official spox John Kirby:

Finally, I want to update you on the issue of the portions of video missing from a press briefing here on the 2nd of December 2013. Now, as you know, this is something we’ve talked about before. I promised you that I would update you when we had completed our review. We’ve done that, so if you’ll bear with me, I’ll give you what I have.

As you know, when this matter came to light, many of us, including Secretary Kerry, had concerns and questions as to how and why this had happened. And so, at the Secretary’s request, the Office of the Legal Adviser spent the last several months looking deeper into the issue. All told, they have spoken with more than 30 current and former employees at all levels of seniority and they’ve gone through emails and other documents to see what information might be available. They have now compiled their findings and a description of their process into a fact-finding review, which has been provided to the Secretary. We’re also sharing it today with Congress and the inspector general.

Here’s the bottom line: We are confident the video of that press briefing was deliberately edited. The white flash that many of you have noticed yourselves in that portion of the video is evidence enough of human involvement. Indeed, a technician came forward, recalled making the edit and inserting that flash. What we were not able to determine was why the edit was made in the first place. There’s no evidence to suggest it was made with the intent to conceal information from the public, and while the technician recalls receiving a phone call requesting the edit, there is no evidence to indicate who might have placed that call or why.

In fact, throughout this process we learned additional information that could call into question any suggestion of nefarious activity. In addition to the fact that the full video was always available on DVIDS and that the full transcript was always on our website, the video was edited in a choppy manner, which made it obvious that footage was missing. We also found that the video likely was shortened very early in the process, only minutes after the briefing concluded and well before the technician who recalled making the edit believes the request was made to make the edit, and in any event before the technician would have been involved in the video production process. It is possible the white flash was inserted because the video had lost footage due to technical or electrical problems that were affecting our control room servers around that time.

Finally, we have confirmed that even if the video was edited with intent to conceal, there was no policy in place at the time prohibiting such an edit. So upon learning that, I think you know, I immediately put a policy in place to preclude that from ever happening. We will also be consulting now with the National Archives and Record Administration about whether any changes to our disposition schedule should be made to address the press briefing videos. Disposition schedules are rules governing the record – official record keeping. The current disposition schedule notes that the written transcript is a permanent record.

Now, I understand that these results may not be completely satisfying to everyone. I think we will all – we would all have preferred to arrive at clear and convincing answers. But that’s not where the evidence or the memories of so many employees about an event, which happened more than two and a half years ago, have taken us. We have to accept the facts as we have found them, learn from them, and move on.

The Secretary is confident that the Office of the Legal Adviser took this task seriously, that they examined it thoroughly, and that we have, indeed, learned valuable lessons as a result. For my part, I want to thank them as well for their diligence and professionalism. We are and I think we will be going forward a better public affairs organization for having worked our way through this.

With that, I’ll take questions.

Via US Embassy London/FB

You did it?

 

QUESTION: All right. Well, before we move on to Syria, let’s finish up this videotape episode, or at least dig into it a little bit more. Can you remind me just from that lengthy statement – you think it was not nefarious because it was done badly and because it was done quickly? Is that the essential argument?

MR KIRBY: I said that we weren’t – we aren’t sure whether it was done with intent to conceal or whether it was done as a result of a technical problem. The bottom line is, Brad, it was inconclusive. Some of the additional information that does lead us to think that a glitch is possible here is because of the choppy nature of the cut, which is when – look, when we do the daily briefings, we always cut the top and the bottom, right? So we have an ability to do editing on the – at the beginning and the end of a briefing. Obviously, we have to do that. And we have procedures in place to do that in a nice smooth, clear, very deliberate way, so that when we post the video of today’s briefing, it looks like a totally encompassed, very professional product. So we have the ability to do this in a very professional way.

This cut was not done that way. It was done in a choppy fashion that’s not consistent with the way we typically do that. I’m not saying that that means for sure it was the result of an electrical problem. I’m just saying that it certainly gives us pause, and we have to think about that.

The other aspect of this is the timing. So roughly 18 minutes after the briefing was concluded, the video that was uploaded was shortened – shorter than the actual briefing itself – which would convey that a cut of some kind was made very, very quickly after the briefing, sooner than when the technician remembers – much sooner, actually, than when the technician remembers getting a phone call asking for the cut to be made. So again, we may be dealing with a memory issue. Maybe that’s inconsistent. Or maybe there was – there could have been a technical problem that caused the video to automatically be shortened when it was first uploaded so quickly – 18 minutes after the briefing, which is pretty fast.

So it’s not impossible or inconceivable that there was an intent to conceal information – in other words, nefarious intent here. We’re not ruling that out. But we also cannot, based on the evidence that we have gained, rule out the possibility that there was some technical problem and then to make it known that a cut had been made, a white flash was inserted.

QUESTION: But there were no technical problems on the other videos that still exist.

MR KIRBY: Right, but they don’t —

QUESTION: If that were the case, don’t you think someone would come and admit that rather than nobody of the 30 witnesses you interview can actually remember what happened? It seems like such a ridiculous explanation it shocks me that you’re actually providing it here. But okay.

MR KIRBY: Okay, is that a question or you just want to berate me?

QUESTION: Well, no, I – John, I just think it’s – I think it’s really strange that you’re saying that. I think someone would remember if it were a technical glitch. And how could you say there was a technical glitch, there was a possibility of that, when there’s no other evidence of those glitches on the other videos that exist?

MR KIRBY: I’m saying I can’t rule it out, Justin. There’s also no evidence that anybody did this with a deliberate intent to conceal. We just don’t know. And you might —

QUESTION: (Inaudible.)

MR KIRBY: And I understand – look, as I said at the – as I said at the end of my lengthy statement, that I understand that the inconclusive nature of the findings is not going to be all that satisfying to you. It wasn’t all that satisfying to the rest of us. You don’t think that we would like to know exactly what happened? We just don’t. They interviewed more than 30 current and former employees. They looked at emails and records, and there simply wasn’t anything to make a specific conclusion here.

QUESTION: Let’s put our satisfaction aside for a second. Is this conclusion that you’ve reached, whatever it concludes or not – is that satisfying to the IG? Is the IG now done with his investigation?

MR KIRBY: Well, I’ll let the IG speak for themselves. I’m not aware that the IG has taken this up as – to investigate.

QUESTION: Well, the review, sorry, that you’ve called it.

MR KIRBY: What I can tell you is – again, I cannot speak for the IG. As you know, they’re an independent entity. What I can tell you is that the Office of the Legal Adviser kept the IG informed as they were working through the process. And it’s our understanding that they’re comfortable with the work that was done.

QUESTION: And then lastly, the technician – is there any punishment to him – or I think it’s – she’s been referred to as “her” in the past – to her as a result of cutting the tape, not remembering who told her, not remembering any of the details regarding this?

MR KIRBY: No. There’s nothing to punish anyone for.

QUESTION: Okay.

MR KIRBY: As I said at the outset, there was no policy prohibiting this kind of an edit. There is now, but there wasn’t at the time. So there’s no wrongdoing here that can be punished.

James.

QUESTION: Can we stipulate in advance of my questions that in pursuing them, I can be absolved of any charges of solipsism or self-centeredness?

MR KIRBY: You’ll have to define solipsism for me. (Laughter.)

QUESTION: Believing that one’s self is the center of the universe. I just happen to be —

MR KIRBY: I would never think that of you.

QUESTION: Thank you. (Laughter.) I’m glad to have that on the record. First of all, so that we are clear, what you are telling us is that some unknown person called this technician to request that an edit that had in fact already been made by some unknown force be made again?

MR KIRBY: What I’m saying is, James, we do not know. We have the technician who has recalled getting a phone call to make an edit to the video. And the technician stands by the recollections of that day.

QUESTION: But the edit had already been made.

MR KIRBY: But it’s unclear – well, it’s unclear. Again, 18 minutes after the briefing, we know that the video uploaded – the version that was uploaded to be used on YouTube and our website was shortened by the same amount of the cut. Now, it’s unclear how it got shortened. It’s unclear whether that was the result of an electrical malfunction or it was the result of a deliberate, physical, intentional edit.

QUESTION: But it is the edit we’ve all seen?

MR KIRBY: It is.

QUESTION: Okay. And so –

MR KIRBY: And what was inserted – that the technician did remember getting a phone call, did remember inserting a white flash to indicate that video footage had been missing. So we know – and the white flash is very clear evidence, as I said, of human involvement in the process. But we’re dealing with recollections and memories that are two and a half years ago. And I don’t know about you, but I can’t remember what I had for breakfast yesterday. So I mean, there is – you have to allow for some of that here, and that’s why it’s inconclusive. I’m not at all standing up here telling you that I’m confident that the – to phrase it your way, that there was a – that a call was made to make an edit that had already been done. I just don’t know that that’s what happened.

QUESTION: What is the time gap between the uploading in the video and the time when this technician recalls that call having come in?

MR KIRBY: Let me see if I can find that for you.

QUESTION: And does the video automatically upload to the website?

MR KIRBY: No, it doesn’t.

QUESTION: So it’s possible that someone could have done the edit before it was uploaded.

MR KIRBY: Hang on a second, Ros. I’m trying to answer one question at a time here.

Look, I – James, I just don’t have that level of detail. I think we had —

QUESTION: But you said it’s quite some time – weeks, months, a year. What do we think it was?

MR KIRBY: No, it’s usually – it can take up to a day to get the press briefings uploaded online. It just depends. And so I just don’t have that level of detail here.

QUESTION: In arriving at the conclusion that you’re unable to make a conclusion as to whether a nefarious intent was involved here, it seems that nobody has taken into that assessment the actual content of the briefing that was actually erased or wound up missing. And so I want to ask you point blank: Doesn’t the content of the missing eight minutes tell us something about the intent? It just happens to be, in fact, the one time in the history of this Administration where a spokesperson stood at that podium and made statements that many, many people across the ideological spectrum have interpreted as a concession that the State Department will from time to time lie to preserve the secrecy of secret negotiations. That coincidence doesn’t strike you as reflective of some intent here?

MR KIRBY: Again, James, two points. First of all, the results of the work that we did are inconclusive as to why there was an edit to that day’s press briefing. I wish I could tell you exactly why and what happened.

QUESTION: Did the content factor in?

MR KIRBY: But – hang on, please. But I don’t know. Certainly, there was, as we work through this – I mean, everybody’s mindful of the content of the Q&A that was missing from the video. I think we’re all cognizant of that Q&A. I can go back, certainly, and look, but it’s my understanding that the content, the issue about the content, had been discussed in previous briefings. It wasn’t the first time that that particular content had been discussed.

Number two, as I said, it was always available in its entirety on DVIDS and it was always available in the transcript, so if – again, if somebody was deliberately trying to excise out the Q&A regarding that content, it would have – it would be a pretty ham-fisted and sloppy approach to do it, because the transcript was never not complete and the DVIDS video was always complete, and there were – hang on a second – and there was media coverage that day regarding that exchange, right? And so —

QUESTION: I remember it well.

MR KIRBY: I’m sure you do. So it wasn’t as if the content inside that eight minutes or so was not available to the public immediately that afternoon.

QUESTION: Two final areas here, and I will yield. I appreciate your patience. Nothing in what you’ve said so far today suggests that the contents of this investigation or its conclusions would be classified. And so when you tell us that the report done by the Office of the Legal Adviser is going to be shared not only with the Secretary but with members of Congress, what is it that prevents you from sharing that full report with the public?

MR KIRBY: Nothing. And we have – we intend to make sure that you get access to it. We’re still working through logistics with that, but nothing precludes that.

QUESTION: We look forward to a timetable when you can make it public.

Lastly, did the Office of the Legal Adviser arrive in the course of this review at any conclusion as to whether this video itself constitutes a federal record?

MR KIRBY: Well, again, as I said at my opening statement, we’re working now with the National Archives and Records Administration to take a look at what I’ve called disposition schedules, the rules governing what is and what is not considered a public record. But at the time and as of today, the transcript is considered a permanent record, official record, of these daily briefings.

QUESTION: So the answer to my question is the Office of the Legal Adviser did not make any determination as to whether this video constitutes a federal record, yes or no?

MR KIRBY: No, and that wasn’t their —

QUESTION: Okay.

MR KIRBY: First of all, James, that wasn’t their task. Their task was to try to find out what happened. And (b) it’s not up to the Office of the Legal Adviser to determine what is or what isn’t a permanent, official record. That’s determined by NARA, and that’s why we’re consulting with them right now.

QUESTION: The videotape in question was shot with a State Department camera, correct?

MR KIRBY: Yes.

QUESTION: It was uploaded to the State Department website by a State Department technician, correct?

MR KIRBY: Yes.

QUESTION: The State Department website is maintained by State Department employees, correct?

MR KIRBY: Yes.

QUESTION: This video on the State Department website is in a separate place on the website from the transcript, correct?

MR KIRBY: Yes.

QUESTION: One has to push a different button to access the video from the button that one pushes to access the transcript, correct?

MR KIRBY: That’s my understanding.

QUESTION: I have no further questions.

QUESTION: Okay, I have one question just to make sure.

QUESTION: It’s like a court of law. (Laughter.)

QUESTION: It sounds like a federal record to me, John. It would be very counter-intuitive – it would be very counter-intuitive to —

MR KIRBY: Let James – let James talk.

QUESTION: It seems very counter-intuitive to imagine that a videotape of a State Department briefing that is shot, uploaded, maintained by federal employees would not itself be a federal record —

MR KIRBY: Yeah.

QUESTION: — considered distinct and separate from the federal record that is the transcript, which is typed by separate employees and maintained on a separate place on the website.

MR KIRBY: So look, let me address that because it’s a fair point. A couple of things. There’s no requirement for us, no requirement, even today, to upload videos of this daily press briefing on my website, our website, or on YouTube, on our YouTube channel. We do that as a courtesy, but there’s no requirement to do that. And that’s one.

Number two, the entire video was also streamed into the DVIDS program, which is a different channel. I’m not a technician, but it’s different, a completely different channel, which is why DVIDS had it complete without any problems. And of course, the transcript is and we have considered the transcript as the official record of these daily briefings. And we consulted NARA at the outset of this process, and they concurred that in their view the transcript is an official record of these daily briefings. But they’re also willing to talk with us about going forward whether or not we need to take a look at those disposition schedules to see if that definition needs to be expanded to include video.

So, James, we actually asked ourselves the very same questions you’ve just interrogated me on, and we’re working – and I mean that in a —

QUESTION: But not with the same panache. (Laughter.)

MR KIRBY: No, not with the same self-centeredness. (Laughter.) But honestly, we asked ourselves the same questions. In fact, we still are, James. And so we’re working with the National Archives on this and we’ll see where that goes.

QUESTION: So let me get this straight. If the DVIDS video was the same – shot by the same camera, it’s the same thing, and it had no problems, I’m having trouble understanding why you would assume and conclude that it’s so possible that your version would have some technical glitch that needed to be edited. I thought we got past the “it was a technical glitch” line. I’m really surprised to see that back in the narrative, because if their version is clean, why —

MR KIRBY: It’s a different – first of all, it’s a different system.

QUESTION: It would be highly unlikely, John, that there would just be some minor problem on your end. It seems implausible and not worth mentioning as a defense.

MR KIRBY: Justin, look, I’m not going to dispute the confusion that you’re having over this. I can tell you, as I said, we would have all preferred that there was some clear, convincing evidence of exactly what happened. But there isn’t. I can’t make it up. I can’t – I can’t just pull out of thin air an exact reason for what happened.

QUESTION: Well —

MR KIRBY: So because I can’t – but because I can’t and because the Office of the Legal Adviser couldn’t, based on interviews, based on looking at documentary evidence, we can’t rule out the fact that there were – and there were some server problems that we were having around that time. I can’t tell you with specificity that it was on that day and at that hour, but we were having some problems. And it’s not out of the realm of the possible that the white flash was inserted rather – for nefarious purposes, but more to indicate that there was some missing footage and we wanted to make that obvious.

QUESTION: All the – I mean, all the evidence – who would come to the technician 18 minutes after the briefing and say, “I noticed that there was a technical” – telling the technician there was a technical problem. It just doesn’t seem —

MR KIRBY: This technician is not – this technician does not work in the office that typically edits the daily briefings.

QUESTION: (Off-mike.)

MR KIRBY: Look, Justin, I can’t possibly —

QUESTION: But it was someone within Public Affairs, not in the technician’s office, who instructed —

MR KIRBY: Yeah.

QUESTION: — the change be made. That’s what you guys have said. And the idea that that person would have noticed some —

MR KIRBY: We’ve said that that is what this individual recalled.

QUESTION: — would have some knowledge of a technical glitch that the technician needed to be instructed on, all of it seems totally implausible. That’s not a question.

MR KIRBY: Okay.

QUESTION: I have —

MR KIRBY: But all I can say to you is I can’t answer the question you’re asking. We have tried to answer the question you’re asking, and we have spent many months now working on it. And it’s – the results are inconclusive in that regard. I can’t change that fact, and that is a fact.

QUESTION: I just have a clarification point, just real quick, real quick.

QUESTION: (Inaudible.)

MR KIRBY: Hang on just a second. Hang on, just —

QUESTION: Very small one.

QUESTION: One quick – yeah, mine’s a minor point too.

QUESTION: Just one – one thing just from another person other than the immediate group there. We’ve jumped around this issue and around it —

MR KIRBY: Are you separate from the media group here?

QUESTION: I’m different from the immediate group up there.

QUESTION: He said “immediate.”

MR KIRBY: Oh, the immediate group.

QUESTION: So this sounds like a very thorough internal probe, more than two dozen people interviewed. Did the probe identify who from Public Affairs made the call requesting the change? Yes or no.

MR KIRBY: No.

QUESTION: Unable to do it?

MR KIRBY: Unable to do that.

QUESTION: Sorry, can you just remind me? I just need to clarify these things. The request to the technician was to do what? I recalled it was to cut the tape.

MR KIRBY: The technician recalls getting a phone call —

QUESTION: Yes.

MR KIRBY: — from somebody in Public Affairs to edit the video. That is still the memory of the technician and that’s reflected in the review.

QUESTION: So why did the – so what did they edit if it was already – if this section of the tape was already missing, what did that technician actually do?

MR KIRBY: The technician remembers getting the phone call and inserting a white flash to mark the fact that the video had been shortened.

QUESTION: So it’s – so the request was to edit the video, and then the technician decided upon herself to insert a white flash as a transparency flasher or something?

MR KIRBY: The technician recalled inserting the white flash so that it was obvious that a cut had been made.

QUESTION: But the request wasn’t to insert a white flash. The request was to cut the video, wasn’t it?

MR KIRBY: Again – again – I’m not disputing that. That is what – that is what the technician remembers – getting a call —

QUESTION: So why did this very obedient and forgetful technician —

MR KIRBY: Hang on, hang on, hang on.

QUESTION: — suddenly decide they were going to insert white flashes?

MR KIRBY: The technician remembers getting a call to edit the video, has recalled and come forward and said that that edit was made and that a white flash was inserted. I can’t – I’m not – I’m not at all, and we’re not disputing, the recollections. As I said at the outset, in working through this, additional information came to light which also forces us to consider the possibility that there might have been a technical problem here that truncated, shortened some of that video since so shortly after the briefing – 18 minutes, which is much faster than we typically get to compiling this and posting it in an – on a normal day – happened. So nobody’s challenging the account —

QUESTION: Yeah.

MR KIRBY: — but it’s because we have additional information that we’ve now uncovered that makes it inconclusive on our part.

QUESTION: I just have two more questions. One, did the technician indicate where she came up with the white flash idea? Was that just being really enterprising?

MR KIRBY: I don’t know. I’m not an expert on this. As I understand it —

QUESTION: Or was that the —

MR KIRBY: — or I’ve been told that that is not an unusual —

QUESTION: Okay.

MR KIRBY: — procedure for making a deliberate cut and to make it obvious.

QUESTION: Okay.

MR KIRBY: But I don’t – I’m not an expert.

QUESTION: Why didn’t – why did nobody in your entire apparatus think of using the good tape that was sent to the DVIDS and just using that?

MR KIRBY: I don’t have an answer for you on that. Again, it was always available on DVIDS. And I’m not – I wasn’t here at the time, so I don’t know how much visibility there was above the technician level on this and that technician’s supervisor. I just don’t know.

QUESTION: But if the white light was meant as some sort of effort at transparency, one, you would have said something, probably indicated somewhere when you posted it, “missing tape,” no? Not let people hopefully see a white light and divine what that means.

MR KIRBY: I can’t go back —

QUESTION: Secondly, wouldn’t you just use the good tape and just put it in?

MR KIRBY: Brad, I can’t go back two and a half years here and —

QUESTION: Well —

MR KIRBY: — and try to get in the heads of people that —

QUESTION: — you’ve raised this like spectral theory that maybe everybody did everything perfectly and we just misinterpreted it.

MR KIRBY: No I did not. And I never called it a spectral theory, okay?

QUESTION: I did.

MR KIRBY: What I’m saying is I can’t go back two and a half years and try to re-litigate the decision making. The technician remembers getting a call, making a cut, inserting a white flash, talking to the supervisor about it. Conversations that happened above that level I simply can’t speak to because I don’t know. And it would be great if we could go back and rewrite the whole history on this, but we can’t do that. All I can do is learn from this and move on. And now we have a policy in place that no such edits can happen without my express permission and approval before it happens. And as I said, there was no policy at the time against this kind of thing, so there’s no wrongdoing.

QUESTION: John —

QUESTION: Can we go to Syria?

QUESTION: No, I just have —

QUESTION: No.

QUESTION: Can we move to Syria?

QUESTION: I have one more. I have one more.

MR KIRBY: Are we all – are we done on the video?

QUESTION: No, I have one more just to wrap this up, because you just said that edits cannot be made without your express knowledge and consent. What is the workflow now for recording these videos of these briefings and other events, and uploading them to the website? What is the basic workflow?

MR KIRBY: The workflow hasn’t changed. The workflow – it’s the same procedure that’s been used in the past. And again, I’m not an expert on the way our technicians – who are very professional, very competent – do their jobs. I didn’t change anything about that process except to insert a rule that there will be no editing of briefing, press briefing videos, without my express consent and approval beforehand. But I did not change the process.

QUESTION: That’s understood. But I will say as someone with 24 years in news, television news, there’s always another pair of eyes looking at what someone does in terms of work. And so I’m asking, one, once you record a video, now that everything is digital, it’s pretty easy to upload things pretty quickly. You don’t need 24 hours. Number two, if you are uploading something, there’s going to be someone in the process – a media manager, a producer, an editor – who’s going to verify that the work was done and that the work didn’t have any technical glitches. Who is checking up on the work of the technician, or is the technician simply working and ticks off a box, I’ve done this task, and moves on?

MR KIRBY: There is a process that supervisory personnel are involved in. I don’t have the exact flowchart for you here today. But I’m comfortable that the process works, and it works every day. It’s going to work today. It worked yesterday, and it worked the days before that. I’m not worried about that. I think everybody understands our obligations and our responsibilities.

I can’t speak for the specifics in this digital environment. Again, I’m not a technician; I’m not an expert at this. But I’m comfortable that our staff is competent and trained, have the resources available to do this in a professional way, and that they’ll continue to do that.

QUESTION: Just a few last ones. Thank you very much, John. Do you stand by the statements you made when you first started briefing on this particular subject that this entire episode reflects a failing to meet your usual standards for transparency?

MR KIRBY: Yeah, I do. I mean, again, we don’t know exactly what happened here, but obviously, we would never condone an intent to conceal, if that’s, in fact, what happened. Now again, I can’t say that that happened. But if it did, then yes, obviously, that would not meet our standards. And frankly, and if I might add, it didn’t meet the standards of my predecessors either. Jen Psaki, Marie Harf, Victoria Nuland – none of them would ever abide by any kind of intent to conceal information from a daily briefing.

QUESTION: The reason I ask is because when you started briefing on this subject in May, you told us that this wasn’t a glitch, that it was an intentional and deliberate erasure. Now, following the investigation by the Office of Legal Adviser, you seem to be retracting that and saying we honestly can’t say one way or the other. And so if your previous comments were to the effect that this represented a failing of transparency, I wonder if you would like an opportunity to retract those as well.

MR KIRBY: I said at the time that it was a deliberate intent to edit and I said it again today. I mean, obviously there’s human involvement here.

QUESTION: Okay.

MR KIRBY: So we know that there was a deliberate edit to the video. What I can’t say, based on the work now that they’ve done, is why that occurred.

QUESTION: Well —

MR KIRBY: But James, if it was – and we may never know, right? – but if it was an intent to conceal information from the public, that’s clearly inappropriate.

QUESTION: You mentioned that more than 30 employees were interviewed as part of this process. Were those interviews recorded or transcribed?

MR KIRBY: I don’t know.

QUESTION: You stated that those 30 employees ranged the gamut of seniority. Does that – are we to interpret that remark as an indication that the Secretary himself was interviewed?

MR KIRBY: The Secretary was not interviewed for this.

QUESTION: To your knowledge, did any of the people who were interviewed have counsel with them while they were interviewed?

MR KIRBY: I don’t know. I’d have to consult the Office of Legal Adviser for that. I don’t know.

QUESTION: To your knowledge, did anyone refuse to take part in the investigation or be —

MR KIRBY: I know of no refusals.

QUESTION: Thank you.

MR KIRBY: In fact, the Office of the Legal Adviser made very clear that they were very grateful and appreciative of the support that they got from people that work in Public Affairs today and people that have worked in Public Affairs in the past.

QUESTION: Thank you.

#

@StateDept’s Assistant Secretary for Public Affairs: Doug Frantz Out, John Kirby In

Posted: 12:28  pm PDT

 

In our Burn Bag mail today:

“Kirby in as Assistant Secretary for Public Affairs. Will that most bureaucratic of bureaus finally be fixed?”

20314418826_c46bc5478a_z

State Department Spokesperson John Kirby watches as U.S. Secretary of State John Kerry addresses reporters on August 6, 2015, in Kuala Lumpur, Malaysia, during a news conference following two days of meetings at the ASEAN Ministerial Meeting. [State Department Photo/Public Domain]

Douglas Frantz was a newspaper reporter and editor for more than 35 years before joining the State Department in September 2013 as Assistant Secretary of State for Public Affairs. He previously worked for then-Senator John Kerry as deputy staff director and chief investigator of the Senate Foreign Relations Committee (SFRC).  We understand that Frantz is slated to move to the Organization for Security and Cooperation in Europe (OSCE).

John Kirby was appointed as the Spokesperson for the Department of State on May 12, 2015. Kirby previously served as Pentagon Press Secretary, serving for more than a year as the chief spokesman for the Department of Defense and for former Secretary of Defense Chuck Hagel. He retired from the Navy in May 2015 with the rank of Rear Admiral.

#

State Dept: “In the process of updating” its new rules for speaking and writing. Again.

Posted: 1:23  am EDT

 

In December 2012, we were informed by inside the building sources that the State Department was rewriting its 3 FAM 4170 rules on official clearance for speaking, writing, and teaching. (see State Dept to Rewrite Media Engagement Rules for Employees in Wake of Van Buren Affair).

On July 27, 2015, two months short of Year 3 since Peter Van Buren retired, the State Department without much fanfare released its new 3 FAM 4170 rules in 19 pages. (see State Dept Releases New 3 FAM 4170 aka: The “Stop The Next Peter Van Buren” Regulation).

The new 3 FAM 4171.b says (see pdf):

 Former Department of State employees (including former interns and externs) must seek guidance from A/GIS/IPS for applicable review process information. Former USAID employees (including former interns and externs) must consult the Bureau for Legislative and Public Affairs for applicable review process information.

On September 3, we asked the State Department for guidance on pre-publication requirement for former/retired employees under the new 3 FAM 4170.

Last Friday, after a second inquiry, we finally got a response from a State Department spokesman as follows:

 The Department is in the process of updating the Foreign Affairs Manual (FAM) guidance relating to the pre-publication obligations of former employees.  Former employees’ obligations will vary based upon the non-disclosure agreements they may have signed. For example, they may have obligations under the Classified Information Non-Disclosure Agreement (SF-312) or the SCI (Sensitive Compartmented Information) Non-Disclosure Agreement (Form 4414).

If employees have signed a non-disclosure/secrecy agreement with another agency, then they may also have pre-publication review obligations with those agencies as well. This obligation is separate from any requirement for pre-publication review that an employee may have with the State Department but the Department can provide the coordination with those other agencies, if requested.

SF-312 Classified Information Nondisclosure Agreement via GSA.gov specifically contains the following paragraphs:

3. I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) responsible for the classification of information or last granting me a security clearance that such disclosure is permitted. I understand that if I am uncertain about the classification status of information, I am required to confirm from an authorized official that the information is unclassified before I may disclose it, except to a person as provided in (a) or (b), above. I further understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information.

5. I hereby assign to the United States Government all royalties, remunerations, and emoluments that have resulted, will result or may result from any disclosure, publication, or revelation of classified information not consistent with the terms of this Agreement.

8. Unless and until I am released in writing by an authorized representative of the United States Government, I understand that all conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified information, and at all times thereafter.

Sensitive Compartmented Information Non-Disclosure Agreement Form 4414 via NCSC (pdf) contains the following:

4. (U) In consideration of being granted access to SCI and of being assigned or retained in a position of special confidence and trust requiring access to SCI, I hereby agree to submit for security review by the Department or Agency that last authorized my access to such information or material, any writing or other preparation in any form, including a work of fiction, that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that I have reason to believe are derived from SCI, that I contemplate disclosing to any person not authorized to have access to SCI or that I have prepared for public disclosure. I understand and agree that my obligation to submit such preparations for review applies during the course of my access to SCI and thereafter, and I agree to make any required submissions prior to discussing the preparation with, or showing it to, anyone who is not authorized to have access to SCI. I further agree that I will not disclose the contents of such preparation with, or show it to, anyone who is not authorized to have access to SCI until I have received written authorization from the Department or Agency that last authorized my access to SCI that such disclosure is permitted.

5. (U) I understand that the purpose of the review described in paragraph 4 is to give the United States a reasonable opportunity to determine whether the preparation submitted pursuant to paragraph 4 sets forth any SCI. I further understand that the Department or Agency to which I have made a submission will act upon it, coordinating within the Intelligence Community when appropriate, and make a response to me within a reasonable time, not to exceed 30 working days from date of receipt.

9. (U) Unless and until I am released in writing by an authorized representative of the Department or Agency that last provided me with access to SCI, I understand that all conditions and obligations imposed on me by this Agreement apply during the time I am granted access to SCI, and at all times thereafter.

Whoa! Is there a way out?

The State Department has  several student paid/unpaid internship programs.  The program’s eligibility requirement includes the ability to receive either a Secret or Top Secret clearance (pdf). So, does a student who receives a one-year internship at State be in the hook for life when it comes to obtaining clearance for speaking, writing, teaching and all media engagement as it is written under 3 FAM 4170? Are the interns/externs aware of their obligations under these rules before they sign up for these internships?

Where can interns/externs obtain a release in writing from a State Department representative?  We originally sent our inquiry to A/GIS/IPS cited as the contact office, but could not even get a response from there. There is no easily available email box to send the request either for a clearance or to request a release.

NOTE: For current employees, the reviewing office is the Bureau of Public Affairs (paclearances[at]state.gov). It looks like State/PA also has The PA Clearances Database accessible online. You need to sign up to register for an account to allow the online submission of clearance requests to the Bureau of Public Affairs. The site says “Using this site will expedite your clearance request.”

For former and retired State Department employees, how far back is the USG going to reach back? For life?

On December 29, 2009, President Obama issued Executive Order 13526 which prescribes a uniform system for classifying, safeguarding, and declassifying national security information.  “No information may remain classified indefinitely,” the order says.  The default declassification date, is 10 years. After 25 years, declassification review is automatic, with nine narrow exceptions that allow information to continue to be classified. Classifications beyond 75 years require special permission.

Given the default declassification at 10 years, can retired and former employees get an automatic release from these obligation at 10 years after they leave their jobs at the State Department?

For employees who are no longer attached in any capacity to the State Department, and haven’t been for 20 years, and have no interest in pursuing consulting or WAE appointments at the agency, ought they not be able to obtain a release from their obligations under these nondisclosure provisions?

Perhaps it’s time for State to put together its own Publication Review Board (PRB)? The CIA has one, and this article by John Hollister Hedley, the Chairman of the PRB on former CIA employees seeking to become published authors is instructive:

The courts have held that this signed agreement is a lifetime enforceable contract.(3) The courts also have noted that the secrecy agreement is a prior restraint of First Amendment freedom. But they ruled it a legitimate restraint, provided it is limited to the deletion of classified information and so long as a review of a proposed publication is conducted and a response given to its author within 30 days.(4)
[
…]
The important thing is for us to be reasonable and professional about what we protect. It does not take a genius to know what information requires a hard look: for example, in an age of terrorism and for privacy act considerations, we have to protect identities not already in the public domain. Also taboo–because they impact adversely our ability to conduct our business, most of it necessarily in secret–are cover arrangements, liaison relationships, covert facilities, and unique collection and analytic capabilities. These constitute the sources and methods that truly need protection. For the most part, they can easily be avoided without keeping an author from telling a story or restricting an author’s opinion on a variety of intelligence subjects.

In prepublication reviews, we have to show we know the difference between what truly is sensitive and what is not. We do not earn respect just by saying “no,” but neither do we earn respect just by giving away information. Our unique role is to judge whether a denial of disclosure would stand up in court, whether we could make a compelling case in a court of law that specific damage to US national security would result. We can have it both ways: we can protect that which needs to be protected, while being forthcoming about intelligence activities in a way that can help educate, inform, enlighten, and even entertain the general public. That is the cost of doing business in this free society we help to preserve; trying to have it both ways is a challenge that comes with the territory.

The article is focused on pre-publication review of manuscripts but notes that the submissions ranges “from 1,000-page book manuscripts to one-page letters to the editor. There are speeches, journal articles, theses and op-eds, book reviews, and movie scripts. There are scholarly treatises, works of fiction, and, recently, a cookbook featuring a collection of recipes acquired and served by Agency officers and spouses around the world. Perhaps the most novel review (no pun intended) involved an interactive CD-ROM video spy game co-authored by former Director of Central Intelligence (DCI) William Colby and KGB Gen. Oleg Kalugin.”

We should note that the State Department’s pre-publication review has three purposes per 3 FAM 4170:

(1) The personal capacity public communications review requirement is intended to serve three purposes: to determine whether the communication would disclose classified or other protected information without authorization; to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4).

The CIA’s PRB on the other hand says that  the sole purpose of its prepublication review is “to assist authors in avoiding inadvertent disclosure of classified information which, if disclosed, would be damaging to national security–just that and nothing more.”

#

Related items:

SF312-13 | Classified Information Nondisclosure Agreement

FORM_4414_Rev_12_2013 | Sensitive Compartmented Information Non-Disclosure Agreement

“On Background” Senior State Department Official Outs Self During Special Briefing

Posted: 5:18  pm EDT

 

The State Department announced that it will will host, GLACIER, “an important conference in Anchorage, Alaska on August 30-31 that will focus the world’s attention on the most urgent issues facing the Arctic today.”

GLACIER stands for Global Leadership in the Arctic: Cooperation, Innovation, Engagement, & Resilience and “will be a global conversation” convened by U.S. Secretary of State John Kerry. It will reportedly include senior U.S. Government officials and representatives from seven other Arctic nations as well as Arctic experts from the global scientific and policy communities, public and private sector representatives, and Alaskan State, local and indigenous leadership. The conference expects delegations from around 20 countries and about 450 participants.

As a prelude to the event starting Sunday, the State Department held a Special Briefing via teleconference with a senior State Department official. It also issued an “important reminder” that this was an “on-background call, so [Senior State Department Official] should be referred to as a senior State Department official going forward” and asked attendees to “appreciate that courtesy professionally.” “On background” usually means that a reporter can use the information you give them, but cannot name or quote you directly.

Excerpt below from the Senior State Department Official.:

The excitement and momentum are building here in Anchorage as we approach the GLACIER conference. I’ve been here, I think, as I said, since Monday, and have been involved with one other conference, the Alaskan Arctic Conference, which was organized by former Lieutenant Governor Mead Treadwell, who is currently the president of Pt Capital, and Alice Rogoff, who owns the Alaska Dispatch News. I spoke at that conference on Tuesday to wrap that up. And over the intervening days, I’ve had an opportunity to meet with the mayor, the governor, and other senior officials here in Alaska. I visited the University of Alaska; I traveled down to Seward, Alaska to the Alaska SeaLife Center; and also took a walk out to, most appropriately, the Exit Glacier since we’re here for the GLACIER conference. It was a special treat to go out there not just to see the glacier and the beauty of the Alaska countryside, but also to see the dramatic changes that have occurred over the years, particularly looking at pictures and the geography out there on how that particular glacier has receded, and particularly over the last couple of decades.

Senior State Department official hikes Exit Glacier in Seward, Alaska, August 2015 (Photo via DipNote)

So it’s a great scene setter for me. I returned to Anchorage yesterday after the seward trip. I met with a series of people, including students at the University of Alaska. Today, I’ll be going out to Alaska Command to talk about our U.S. leadership efforts in the Arctic Council, doing a couple of interviews both on TV and with the press, and most importantly, speaking to all of you today.

GLACIER is going to be a historic event. The media outlets up here have been promoting not just the conference, but in particular, the fact that our final speaker on Monday will be the President of the United States. Even beyond that, he is coming in for the GLACIER conference, but I think as everybody knows now, he’s going to spend some time in Alaska and he will be the first president – the first sitting president to visit the American Arctic, going above the Arctic Circle here in Alaska.

We have a jam-packed day on Monday. There’ll be an opening plenary session with senior officials, leadership from Alaska and Alaska native groups speaking to the entire session. Secretary Kerry, Dr. John Holdren, the science advisor to the President will speak, and then the ministers will be involved in a track for the remainder of the day covering various topics, talking about the challenges in the Arctic. And the other participants – the 300 or so other participants in addition to the delegations will be broken down into two separate tracks which will cover various issues throughout the day as well. Everybody’s brought back together at the end of the day for the final plenary session, at which time we’ll have the President speak to us and we’re all, as I said, very excited about that.

This is obviously a very significant event for Alaska, but I think it’s also a significant event for the world. Whenever the United States gets involved in a project, whenever the United States puts its focus on problems or issues, there is usually action that occurs. And as an individual, as an American, as a retired Coast Guardsman, an employee of the State Department, I could not be more excited that we are now gaining this focus on our Arctic challenges all brought together here in this wonderful conference that’s going to occur on Monday.

.

.

.

According to his brief bio, Adm. Robert J. Papp Jr., USCG (Ret.) became the U.S. State Department’s special representative for the Arctic in July of 2014. Prior to his appointment, Papp served as the 24th Commandant of the U.S. Coast Guard, and led the largest component of the Department of Homeland Security. We are aware of no other Senior State Department official who also previously served as a retired Coast Guardsman.

Why the State Department find it necessary to have a special briefing on background with its special representative for the Arctic is perplexing. We’ve come up with zero bucket for reasons. Anybody out there understand the why here, please share.

#

State Dept Releases New 3 FAM 4170 aka: The “Stop The Next Peter Van Buren” Regulation

Posted: 3:41 am EDT

Congratulations!  This is almost three years in the making!

We’ve previously covered the Peter Van Buren case quite extensively in this blog (see After a Year of Serious Roars and Growls, State Dept Officially Retires FSO-Non Grata Peter Van Buren). The State Department officially retired Mr. Van Buren on September 30, 2012. He left with full retirement. In December 2012, we were informed by inside the building sources that the Department was rewriting its 3 FAM 4170 rules on official clearance for speaking, writing, and teaching. (see State Dept to Rewrite Media Engagement Rules for Employees in Wake of Van Buren Affair).

On July 27, 2015, two months short of Year 3 since Mr. Van Buren retired, the State Department without much fanfare released its new 3 FAM 4170 rules in 19 pages. For the FAM is not a regulation; it’s recommendations” crowd, we hope you folks have great lawyers.

My! Look who’s covered!

The updated FAM, same as the old FAM, is divided into two meaty parts — official capacity public communication and personal capacity public appearances and communications.  The new version of 3 FAM 4170 is all encompassing, covering the following (not exhaustive list):

— all personnel in the United States and abroad who are currently employed (even if in Leave Without Pay status) by the Department of State and the United States Agency for International Development (USAID), including but not limited to Foreign Service (FS) employees, Civil Service (CS) employees (including schedule C appointees and annuitants returning to work on temporary appointments on an intermittent basis, commonly referred to as “While Actually Employed (WAE)” personnel), locally employed staff (LE Staff), personal service contractors (PSCs), employees assigned to fellowships or details elsewhere and detailees or fellows from other entities assigned to the Department, externs/interns, and special government employees (SGEs).

— Former Department of State employees (including former interns and externs) must seek guidance from A/GIS/IPS for applicable review process information. Former USAID employees (including former interns and externs) must consult the Bureau for Legislative and Public Affairs for applicable review process information.

— Employee testimony, whether in an official capacity or in a personal capacity on a matter of Departmental concern, may be subject to the review requirements of this subchapter. Employees should consult with the Department of State’s Office of the Legal Adviser or USAID’s Office of the General Counsel, as appropriate, to determine applicable procedures.

In practical terms, we think this means that if you get summoned to appear before the House Select Benghazi Committee and is testifying in your personal capacity as a former or retired employee of the State Department, these new regulations may still apply to you, and you may still need clearance before your testimony.

Convince us that we’re reading this wrong, otherwise, somebody poke Congress, please.

Also, does this mean that all retired FSOs who contribute to ADST’s Oral History project are similarly required to obtain clearance since by its definition, “online forums such as blogs” and “a person or entity engaged in disseminating information to the general public” are considered media organizations under these new rules?

Institutional interest vs. public interest

We are particularly interested in the personal capacity publication/communication rules because that’s the one that can get people in big trouble, as shown in the Van Buren case. Here’s the equivalent of our bold Sharpie.

3 FAM 4176.4 says:  “A principal goal of the review process for personal capacity public communications is to ensure that no classified or other protected information will be disclosed without authorization. In addition, the Final Review Office will evaluate whether the employee’s public communication is highly likely to result in serious adverse consequences to the efficiency or mission of the Department, such that preventing those consequences outweighs the employee’s presumptively high interest in communicating and the public’s interest in receiving the communication.”

 

Institutional interest trumps public interest? Where do you draw the line? You can still write a dissent cable as the “3 FAM 4172.1-3(D). No Review of Dissent Channel Communications” included in the 2009 version of the FAM survives as 3 FAM 4171 (e) in the current rules:

Views on matters of Departmental concern communicated through methods of internal communication (including, for example, the Department’s internal dissent channel) or disclosures made pursuant to 5 U.S.C. 2302(b)(8)(B) are not subject to the review requirements of this subchapter.

Which is fine and all, except — who the heck gets to read your dissent cable except the folks at Policy Planning? The State Department is not obligated to share with Congress or with the American public any dissenting opinions from its diplomats. One might argue that this is appropriate, after all, you can’t have diplomats second guessing in public every foreign policy decision of every administration. So, the American public typically only hears about it when a diplomat quits.  But given the two long wars in Iraq and Afghanistan, is the American public best served by this policy?  And by the way, candid opinion like the case of the six-page memo, entitled “The Perfect Storm,” in the lead up to the Iraq War, is still classified. Why is that?

The new regs also say this:

“To the extent time and resources allow, reviewers may assist the employee in identifying possible modifications or other adjustments to avoid the inclusion of non-classified but otherwise protected information, or the potential for adverse consequences to the Department’s mission or efficiency (including the employee’s ability to perform his or her duties effectively in the future).”

If we weigh the Van Buren book against these parameters, how much of the book’s 288 pages would survive such “modifications” or “adjustments.”

There goes the book, We Meant Well in Afghanistan, Also.

The Peter Van Buren Clause

We’ve come to call “3 FAM 4172.1-7 Use or Publication of Materials Prepared in an Employee’s Private Capacity That Have Been Submitted for Review as the Peter Van Buren clause. Below is the original language from the 2009 version of the FAM:

An employee may use, issue, or publish materials on matters of official concern that have been submitted for review, and for which the presumption of private capacity has not been overcome, upon expiration of the designated period of comment and review regardless of the final content of such materials so long as they do not contain information that is classified or otherwise exempt from disclosure as described in 3 FAM 4172.1-6(A).

That section of the FAM appears to survive under the current 3 FAM 4174.3 Final Review Offices, underlined for emphasis below.

c. To ensure that no classified information is improperly disclosed, an employee must not take any steps to proceed with a public communication (including making commitments to publishers or other parties) until he or she receives written notice to proceed from the Final Review Office, except as described below. If, upon expiration of the relevant timeframes below, the Final Review Office has not provided an employee with either a final response or an indication that a public communication involves equities of another U.S. Government entity (including a list of the entity or entities with equities), the employee may use, issue, or publish materials on matters of Departmental concern that have been submitted for review so long as such materials do not contain information described in 3 FAM 4176.2(a) and taking into account the principles in 4176.2(b). When an employee has been informed by the Final Review Office that his or her public communication involves equities of another U.S. Government entity or entities, the employee should not proceed without written notice to proceed from the Final Review Office. Upon the employee’s request, the Final Review Office will provide the employee with an update on the status of the review of his or her public communication, including, if applicable, the date(s) on which the Department submitted the employee’s communication to another entity or entities for review. Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.

The Van Buren clause appears to survive, until you take a closer look; italicized below for emphasis:

3 FAM 4176.2 (a) Content of Personal Capacity Public Communications

a. When engaging in personal capacity public communications, employees must not:

(1) Claim to represent the Department or its policies, or those of the U.S. Government, or use Department or other U.S. Government seals or logos; or

(2) Disclose, or in any way allow the public to access, classified information, even if it is already publicly available due to a previous unauthorized disclosure.

3 FAM 4176.2 (b) Content of Personal Capacity Public Communications

b. As stated in 3 FAM 4174.2(c)(1), a purpose of this review process is to determine whether the communication would disclose classified or other protected information without authorization. Other protected information that is or may be subject to public disclosure restrictions includes, but is not limited to: 

(1) Material that meets one or more of the criteria for exemption from public disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552(b), including internal pre-decisional deliberative material; 

(2) Information that reasonably could be expected to interfere with law enforcement proceedings or operations;

(3) Information pertaining to procurement in violation of 41 U.S.C. 2101-2107;

(4) Sensitive personally identifiable information as defined in 5 FAM 795.1(f); or

(5) Other nonpublic information, when used in a manner as prohibited by 5 CFR 2635.703.

Can one make the case that the conversations between the writer and his boss in the Van Buren book are “internal pre-decisional deliberative material?” Or that any conversation between two FSOs are deliberative? Of course. State can make a case about anything and everything.  Remember, it did try to make the case that the book contained classified information. (see “Classified” Information Contained in We Meant Well – It’s a Slam Dunk, Baby!). Also, we should note that documents marked SBU or sensitive but unclassified are typically considered nonpublic information.  Under these new rules, it’s not just classified information anymore, anything the agency considers deliberative material or any nonpublic material may be subject to disclosure restrictions.

 

3 FAM 4174.2 Overview (2015): Waving the ‘suitability for continued employment’ flag

c. Employees’ personal capacity public communications must be reviewed if they are on a topic “of Departmental concern” (see 3 FAM 4173). Personal capacity public communications that clearly do not address matters of Departmental concern need not be submitted for review.

(1) The personal capacity public communications review requirement is intended to serve three purposes: to determine whether the communication would disclose classified or other protected information without authorization; to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4).

(2) The purposes of the review are limited to those described in paragraph (1); the review is not meant to insulate employees from discipline or other administrative action related to their communications, or otherwise provide assurances to employees on matters such as suitability for continued employment (see, e.g., 3 FAM 4130 for foreign service personnel and 5 CFR 731 for civil service personnel). Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.

 

More 3 FAM 4170 Fun: Not meant to insulate employees from discipline or other administrative action

3 FAM 4176.1(e) General

e. As stated in 3 FAM 4174.2(c)(1), the review process is limited to three purposes. (See also 3 FAM 4176.4.) Therefore, completion of the review process is not a Department “clearance” or “approval” of the planned communication, and is not meant to insulate employees from discipline or other administrative action related to their communications, including for conducting personal capacity public communications that interfere with the Department’s ability to effectively and efficiently carry out its mission and responsibilities, by, for example, disrupting operations, impairing working relationships, or impeding the employee from carrying out his or her duties. Ultimately, employees remain responsible for their personal communications whether or not the communications are on topics of Departmental concern.

 

3 FAM 4176.3 Employee must disclose his/her identity to Department reviewers

a. PA reviews all personal capacity public communications on matters of Departmental concern by senior officials at the Assistant Secretary level and above, including Chiefs of Mission. For all other employees wishing to communicate publicly in their personal capacity on matters of Departmental concern, there are two review processes available:

(1) Individuals may, as a first step, submit their requests for review to the Final Review Office (as described in 3 FAM 4174.3(a)). For employees submitting a request to PA, such requests should be submitted via PAReviews@state.gov. The Final Review Office will then consult with the employee’s immediate supervisor(s) and any other offices concerned with the subject matter in accordance with 3 FAM 4176.4(c). The Final Review Office will then make the final determination; and

(2) Alternatively, employees may initially submit their requests for review to their immediate supervisor(s), the Public Affairs Office in their bureaus or posts, and any other Department offices concerned with the subject matter. The materials must then be submitted to the Final Review Office, noting all such reviewers and any comments received. The Final Review Office will then verify those reviews, assess whether other reviews are needed, and make the final determination.

b. Supervisors, Public Affairs Offices, or any other offices involved in the review process must flag for the Final Review Office any view that the proposed public communication may:

(1) Contain classified or other protected information;

(2) Result in serious adverse consequences to the efficiency or mission of the Department; or

(3) Be or become high impact or high profile, for example communication that is controversial, or otherwise involves a sensitive Department priority; and

(4) The Final Review Office will then apply the standard described in 3 FAM 4176.4(a).

c. In all cases, an employee must disclose his or her identity to the relevant Department reviewers.

d. If another U.S. Government entity seeks Department review of a personal capacity public communication by that entity’s employee, the Department office in receipt of such request must coordinate with PA.

 

3 FAM 4177 Noncompliance may result in disciplinary action, criminal prosecution and/or civil liability.

a. Failure to follow the provisions of this subchapter, including failure to seek advance reviews where required, may result in disciplinary or other administrative action up to and including separation. Violations by USAID employees may be referred to the Deputy Administrator for Human Resources or USAID’s Office of the Inspector General (see 3 FAM 4320). Disciplinary action will be pursued consistent with applicable law, including 5 U.S.C. 2302

b. Publication or dissemination of classified or other protected information may result in disciplinary action, criminal prosecution and/or civil liability.

This is the part where we must remind you that what the former State Department spokesperson said about the FAM being recommendations is a serious bunch of hooey!

Oh, hey, remember the 2-day clearance for tweets …’er scandal?

We wrote about it here and here, and the “ain’t gonna happen 2-day clearance” for social media posting is now part of the Foreign Affairs Manual.  Apologies if the 2-working day review timeframe below for social media postings is too shocking for 21st century statecraft innovation purists. These are the rules, unless you can get the current State Department spokesperson to say from the podium that these are merely recommendations that employees/retirees/interns/charforce are free to ignore. We must add that the 2009 version of these rules, required that materials of official concern submitted in the employee’s private capacity must “be submitted for a reasonable period of review, not to exceed thirty days.” The old rules made no distinction whether the submitted material is a book manuscript, an article, a blogpost or a tweet.
screen grab from 3 FAM 4172

screen grab from 3 FAM 4170

Yo! What’s Missing?

The new regs emphasized the need for official clearance for official and private communication “to ensure that no classified information is improperly disclosed.” It however, does not include any guidance on the use of a private server for emails and social media postings where classified information could be improperly disclosed.

A Much Better FAM Version, Hey?

From the organizational perspective, some folks would say that this is a “much better” version of the FAM.  We’d call this a much better plug. An insider could argue that this is a “very fine sieve.”

Okeedokee, but what do you think will be its consequences for the rank and file? No one will officially admit this as the intent, but after reading this new version of 3 FAM 4170, this is what we think it really says:

The updated regs also says that “In light of the rapid pace with which many social media platforms are used, all offices, sections, or employees who routinely post to such platforms in their official capacity are encouraged to seek advance blanket authorization to engage for their social media communications, in accordance with 3 FAM 4175.1(c).”

The blanket authorization as far as we can tell only applies to those who are engaged in social media platforms in their official capacities, it makes no similar provision for employees in social media platforms in their private capacities.

Fun With Fido or Grumpy Cat

The new regs helpfully notes that “Employees who, in their personal capacity, wish to communicate publicly on matters that are clearly not “of Departmental concern” (see 3 FAM 4173) need not seek Department review under the procedures outlined herein, and need not use the personal capacity disclaimer discussed below in paragraph (b).”

So, basically, if you blog, tweet or write a book about Kitty Kat or Fidodog, or about their travels and adventures in Baghdad, Kabul, Sanaa, and all the garden spots, you don’t need to seek Department review. That is, as long as Kitty Kat is not secretly arming the rodent insurgents and tweeting about it and Fidodog is not flushing government money down the toilet and blogging about it.

#

Related items:

Read the new 3 FAM 4170 July 27, 2015 | REVIEW OF PUBLIC SPEAKING, TEACHING, WRITING, AND MEDIA ENGAGEMENT

Download it here (pdf).