@StateDept may soon get the ‘security clearance suspension without pay’ hammer, it’s a baaad idea

Posted: 1:02 am PT
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In addition to some 40 reports a year mandated by the 2016 authorization bill, it also includes a troubling provision for suspension without pay (SWOP) whenever the security clearance of a Foreign Service member is suspended. Not just for suspension for national security reasons anymore. If this bill is signed into law, won’t the State Department be able to put any employee on suspension without pay, at any time, for any reason?

We blogged about this last year:

The most widely reported FSO with a suspended clearance in recent memory is Peter Van Buren whose TS clearance was suspended for about a year. Under this proposed bill, PVB would not have been assigned to a telework position or paid for the duration of his fight with the State Department. Which means he and others like him would have to quit and find a paying job or starve unless he/she has a savings account that can sustain the investigation for a year or years.

Any FS employee who might dissent or engage in whistleblowing activity, any perceived troublemaker for that matter, can be put on SWOP, and that would be it.  An FSO who experienced first hand the suspension of a security clearance put this in very stark terms:

In practical terms they can remove the employee instantly, without telling anyone why until much later, by which time the employee will have resigned unless they can afford to go for months or years without a salary. And once the employee has resigned, the case is closed, the former employee loses their clearance because they resigned, and with it any right to know the reasons for the suspension. If the employee quits, the Department does not have to justify itself to anyone, and if the Department doesn’t have to pay them, 99.9 percent will quit.

The bill provides for a “reasonable time to respond orally and in writing to the proposed suspension” — members of the Foreign Service assigned to duty in the United States will get 15 days after receiving notice of the proposed suspension; members of the Foreign Service assigned to duty outside the United States will 30 days after receiving notice of the proposed suspension. It also provides for what appears to be a very limited review by the Foreign Service Grievance Board (FSGB).

via reactiongifs.com

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An insider told us that basically any dissenter can be taken off the payroll almost at will, just by putting a national security spin on their dissent – which apparently can be quite easy to do.

Word has it that this has been on the State Department’s wish list since at least the Rice tenure as secretary of state. So now, it’s here and if it’s passed, it will add a new layer of chill to an already risk averse organization.

It is important to note that the investigation to a security clearance suspension can go on for years. A lawyer who has represented FS employees on security clearance cases, J. Michael Hannon writes on FSJ:

Under State Department regulations and established law, the Bureau of Diplomatic Security has the sole authority to determine whether your security clearance should be suspended on the basis of “all facts available upon receipt of the initial derogatory information.” The standard to be applied is to determine whether it is “in the interests of national security” to continue your security status or to suspend it.

The regulations further provide that DS investigations must be “reported in a timely manner” and issues requiring temporary suspension of clearance must be resolved “as quickly as possible (normally within 90 days).” The department is, however, permitted to continue suspension of an individual’s clearance “until the relevant issues have been fully resolved.” If that seems open-ended, it is.

Employees are already afforded just “minimal due process” (typically a notice and an opportunity to respond) in these security clearance investigations.  Apparently, there are “no rules of evidence that pertain to a DS investigation or restrain its conclusions.”  So when investigations can go on for a year, or two, or even several years as in some cases, which employee can sustain on an indefinite no work and no pay arrangement? An employee overseas given 30 days to respond, some with no housing or families in the DC area, will have to deal with the suspension, and relocation of self and family members at the same time.  Posts will have to deal with staffing gaps.

If the organization wants to get rid of an employee — for whatever reason — what’s the incentive to resolve the suspension quickly when given enough time, most employees will be forced to quit under these circumstances?

Not only that, we can already imagine several scenarios where hostile security services can undermine our diplomatic service by a well-placed rumor or allegation here and there while availing of this prospective hammer.

S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 passed the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016).  The House needs to pass it as well, and we haven’t been able to find the House bill.  However, on April 29, the Senate did send a message to the House requesting its concurrence to the FY16 authorization bill.  The bill is currently held at the desk for floor action; it doesn’t look like the House will be back in session until May 10.

Read the bill via congress.gov, the congressional record in PDF or as TEXT here. Below is the text on the security clearance suspension provision:

SEC. 216. SECURITY CLEARANCE SUSPENSIONS.

(a) Suspension.—Section 610 of the Foreign Service Act of 1980 (22 U.S.C. 4010) is amended—

(1) by striking the section heading and inserting the following:

“SEC. 610. SEPARATION FOR CAUSE; SUSPENSION”; AND

(2) by adding at the end the following:

“(c) (1) In order to promote the efficiency of the Service, the Secretary may suspend a member of the Service without pay when—

“(A) the member’s security clearance is suspended; or

“(B) there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed.

“(2) Any member of the Foreign Service for whom a suspension is proposed under this subsection shall be entitled to—

“(A) written notice stating the specific reasons for the proposed suspension;

“(B) a reasonable time to respond orally and in writing to the proposed suspension;

“(C) representation by an attorney or other representative; and

“(D) a final written decision, including the specific reasons for such decision, as soon as practicable.

“(3) Any member suspended under this subsection may file a grievance in accordance with the procedures applicable to grievances under chapter 11.

“(4) If a grievance is filed under paragraph (3)—

“(A) the review by the Foreign Service Grievance Board shall be limited to a determination of whether the provisions of paragraphs (1) and (2) have been fulfilled; and

“(B) the Board may not exercise the authority provided under section 1106(8).

“(5) In this subsection:

“(A) The term ‘reasonable time’ means—

“(i) with respect to a member of the Foreign Service assigned to duty in the United States, 15 days after receiving notice of the proposed suspension; and

“(ii) with respect to a member of the Foreign Service assigned to duty outside the United States, 30 days after receiving notice of the proposed suspension.

“(B) The terms ‘suspend’ and ‘suspension’ mean placing a member of the Foreign Service in a temporary status without duties and pay.”.

(b) Clerical Amendment.—The table of contents in section 2 of such Act is amended by striking the item relating to section 610 and inserting the following:
“Sec. 610. Separation for cause; suspension.”.

 

Related item:

SECURITY CLEARANCES: KNOW YOUR RIGHTS (PDF)

Related posts:

 

 

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What if Congress grants the State Dept the Suspension Without Pay (SWOP) hammer?

Posted: 1:44  pm EDT
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According to the Foreign Affairs Manual, the Act of August 26, 1950 (64 Stat. 476), codified at 5 U.S.C. 7532, “confers upon the Secretary of State the authority, in the Secretary’s absolute discretion, to suspend without pay any civilian officer or employee of the Department (including the Foreign Service of the United States) when deemed necessary in the interest of the national security (see 12 FAM 235.2).”

So when the Senate Foreign Relations Committee passed the Fiscal Year 2016 Department of State Operations Authorization and Embassy Security Act which contains a similar language on security clearance suspension without work and no pay for Foreign Service employees, we were wondering what’s up with that (see S.1635: DOS Operations Authorization and Embassy Security Act, Fiscal Year 2016 – Security Clearance).

Section 610 (2)(c)(1) of S.1635 says that in order to promote the efficiency of the Service, the Secretary may suspend a member of the Service without pay when—

(A) the member’s security clearance is suspended; or

(B) there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed.

The new language indicates suspension without pay (SWOP) whenever the security clearance is suspended for whatever reason. Not just for national security reasons anymore, folks.

The most widely reported FSO with a suspended clearance in recent memory is Peter Van Buren whose TS clearance was suspended for about a year. Under this proposed bill, PVB would not have been assigned to a telework position or paid for the duration of his fight with the State Department. Which means he and others like him would have to quit and find a paying job or starve unless he/she has a savings account that can sustain the investigation for a year or years.

Any FS employee who might dissent or engage in whistleblowing activity, any perceived troublemaker for that matter, can be put on SWOP, and that would be it.  An FSO who experienced first hand the suspension of a security clearance put this in very stark terms:

In practical terms they can remove the employee instantly, without telling anyone why until much later, by which time the employee will have resigned unless they can afford to go for months or years without a salary. And once the employee has resigned, the case is closed, the former employee loses their clearance because they resigned, and with it any right to know the reasons for the suspension. If the employee quits, the Department does not have to justify itself to anyone, and if the Department doesn’t have to pay them, 99.9 percent will quit.

We want to look at the numbers of suspension and revocation, unfortunately, this is something that is not publicly available from Diplomatic Security.  A source speaking on background put the numbers very low at less than 30 suspensions a year and of those probably less than 5 are revocations. Another source long familiar with this issue guesstimate the number as closer to 70-80 suspension per year, and the number of revocations probably at15-20 per year. We are unable to verify these numbers independently.  The higher numbers may be due to greater hiring, as well as to the use of “Scattered Castles,” a computer database that lists all prior security clearance determinations by other agencies which may prompt a suspension and re-investigation of the clearance.  But even if we take the higher numbers of 80 suspensions, that is still a small number compared to the total FS workforce.

A source not authorized to speak on this subject told us that the bulk of security clearance suspensions and revocations involve personal behavior issues ranging from alleged sexual misconduct to alcohol abuse, to failure to report on time a relationship that should be reported. Very few security clearance cases involve a matter that is criminal, so very few result in prosecution.

The question then becomes why? Why would Congress want this? And just as important, why does the State Department support this?

The long history of this section of the bill reportedly dates back to Condoleezza Rice’s term at the State Department. It was allegedly intended to create parity between Foreign Service (FS) and Civil Service (CS) employees.

State can indeed put CS employees on SWOP as soon as clearance is suspended, but the rules also gives CS employees appeal rights to the Merit Systems Protection Board (MSPB). We understand that MSPB records and procedures are public and that it is specifically granted authority to review security clearance cases. The FS employees do not have the same protection with the Foreign Service Grievance Board. The final review adjudicative body, the Security Appeals Panel, not part of FSGB, allegedly does not even keep records of its deliberative process or set precedent for future cases. Currently, the rules on the FAM says: “If the individual is represented by counsel or other representative, the representative does not have a right to have access to or to review any material. However, to the extent authorized by the individual and the Department, the representative may review material that the individual has access to pursuant to subsection (b) above if he or she is properly cleared.”

The numbers of suspension/revocation are low but Congress doesn’t have to talk about the numbers. The members can talk about getting rid of bad apples in the government, which is always popular. In doing so, Congress can look tough on security, tough on the State Department and tough on keeping tabs on government money.

This is not a good idea. If only a quarter of all suspensions end in revocation, isn’t the USG throwing money and lives away? In addition to our concern that this could be use by the State Department to shut-up dissenters or potential whistleblowers, we also have the following concerns:

  • Costs in hiring/training

The USG has a lengthy hiring process for FS employees and typically trains them before sending them to posts overseas. The cost of that investment does not come cheap. Members of the FS also go through language training and spends most of their careers in overseas assignments.The length of time to replace/train/deploy an FS employee is significantly longer than the time to replace a CS employee.

  • FS family logistics

FS members overseas with suspended clearance are normally sent home to a desk job that does not require a clearance or their expertise. Not all FS members have houses to come home to in the WashDC area. They’ll have to pull kids out of schools, and move their entire household. What happens to them in DC if the employee is without work and without pay under this proposal? A suspension in this case would technically be a firing as the FS employee will be forced to find an alternate job that pays. So what happens when the case is resolved without a revocation, will the employee be able to come back? Since the investigation ends when the employee leaves, there is no win here for the employee.

  • Prime targets of hostile intel service

FS employees spends most of their career overseas. By virtue of their positions, they are prime targets of any hostile intel service. They can be subject of a security investigation though no fault of their own.  This is even more concerning with the OPM hack purportedly conducted by a foreign government.  If true that a foreign government now has the personal details of over 20 million security clearance holders, including those in the State Department who used OPM’s e-Qip system, how does one even protect oneself from the potential misuse of that information that can lead to a clearance suspension?

What can you do?

As we have posted earlier, the State Authorization bill was offered as an amendment when the NDAA was debated in the Senate in June but it was not voted on when the NDAA passed on June 18 (That would be H.R. 1735 which passed 215 (71-25)  We understand that both chambers are now starting the process to bring the bill to conference in order to resolve differences.  The State Authorization bill, we are told, will not be part of those discussions.  In order for this to move forward, it will either need to be brought to the floor as a stand alone vote or Corker/Cardin could try again to attach it to another piece of legislation. Given that this is the first authorization bill passed by the SFRC in 5 years, and made it through the committee with bi-partisan support, we suspect that this might not be the end of this bill.

We’re hoping that employees’ fundamental rights and due process do not become casualties particularly in gaining concessions from Congress on the overseas comparability pay (CP) fight. That would be a terrible bargain.  Educate your elected representative on the consequences of this section of the bill. See that AFSA is tracking this matter and talking to Congress.

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