FSGB Case: Revocation of Top Secret Security Clearance and Separation

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Via FSGB Case No. 2020-002:

Held – The Grievance Board found that because the security clearance of the charged employee had been revoked after final agency review, the Department of State established that the proposed separation of the charged employee was for such cause as will promote the efficiency of the Foreign Service.

Case Summary The charged employee, a Diplomatic Security Special Agent, was notified that his Top Secret security clearance was suspended for failure to cooperate in certain medical assessments. The charged employee’s clearance subsequently was revoked. The charged employee appealed the revocation to the Department’s Security Appeals Panel, which sustained the revocation after consideration of the written submissions of both the charged employee and the Department. Because a Top Secret security clearance is a condition of employment for the charged employee and because the revocation of his clearance was final, the Department proposed to separate the employee for cause. After a hearing on the issue, the Board concluded that the Department had established cause for the separation and evidence that the separation would promote the efficiency of the Service.

Background

On July 11, 2014, the Director of the Office of Personnel Security and Suitability, Bureau of Diplomatic Security (DS/SI/PSS), notified the charged employee, via memorandum that his “continued access to classified information was not clearly consistent with the interests of national security.”1 Accordingly, his Top Secret security clearance was suspended pending the outcome of “ongoing Department medical review.” 2 The charged employee held a position as an FS-02 DS Special Agent who required a Top Secret security clearance to perform his duties.

On October 7, 2015, the Deputy Assistant Secretary for Domestic Operations notified the charged employee by letter that his Top Secret security clearance was revoked. The employee was afforded 30 days to request a review of this decision. It appears that a review was requested because on March 13, 2019, the Principal Deputy Legal Adviser, on behalf of the Security Appeals Panel (Panel) notified the employee by letter that the Panel voted to sustain the decision of DS to revoke his Top Secret security clearance. This letter noted that the Panel had convened on February 19, 2019; that the charged employee had appeared and answered questions; and that the Panel took into account his responses, as well as written materials provided by the employee, his private counsel, DS.3

On August 20, 2019, the Director General notified the charged employee that the Department proposed to separate him for cause, under Section 610 of the FSA as amended, in order to promote the efficiency of the Service. The separation proposal stated that all Foreign Service positions require a Top Secret security clearance because all FS positions are “critical sensitive.” 4 Thus, because his security clearance had been revoked after all final reviews, the charged employee could no longer maintain a condition of his employment.

The charged employee responded by email on September 3, 2019 to the proposed letter of separation, stating, “Separating me from the Department does not seem right to me.” 5 The charged employee offered no other written or oral response to explain, rebut, or mitigate the separation proposal.

On January 6, 2020, the Department submitted the transmittal containing the separation proposal to the FSGB. On February 25, 2020, the Board conducted a pre-hearing conference (PHC) with the parties by telephone, during which the Board, the charged employee and the Department agreed upon procedural ground rules and a schedule of events prior to the hearing.6

The Department indicated at the PHC that beyond the documents submitted with the Department’s separation file in this case, the agency did not intend to submit any other exhibits or call any witnesses at the hearing. The charged employee indicated that he did not wish to call any witnesses or submit any documentation to the Board at the hearing. Thereafter, the parties reached an agreement on joint stipulations of fact to be presented at the hearing.7

On April 2, 2020, a hearing was convened by the Board on the separation proposal. The hearing was held telephonically, due to the CoVid 19 coronavirus pandemic, the President’s order to maximize the use of telework and the Governor of Virginia’s “stay at home” emergency order. At the start of the hearing, the Board advised the parties that it had determined that there was no need for a video-conferenced hearing because the parties had advised that they intended to offer no witness testimony. Neither the charged employee nor the Department objected to the use of a telephonic hearing process.

The Board found that a Top Secret security clearance is required for the employee’s position; therefore, the agency established that the charged employee failed to maintain a mandatory condition of employment. The Board concluded that the Department established cause for the separation on a single charge of Failure to Maintain a Condition of Employment and that separation of the charged employee will promote the efficiency of the Foreign Service.

3 According to the Principal Deputy Legal Adviser’s letter, “the Panel focused in particular on concerns relating to guideline I (‘Psychological Condition’). … [T]he Panel took note of the fact that [the charged employee] did not appear at the medical evaluation which [he] had agreed to undergo, [his] email of November 2, 2018, and [his] unwillingness during [his] appearance before the Panel to offer information that it could use to determine whether DS’s concerns had been mitigated.” The record does not reveal any additional information about the predicate for the security clearance suspension or revocation.

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@StateDept OMS Arrested/Charged With Concealing Extensive Contacts With Chinese Intel Agents

Posted: 5:17 pm ET
Updated: March 30, 4:18 am ET  
[twitter-follow screen_name=’Diplopundit’]

 

On March 29, the Justice Department announced the arrest of State Department employee, Candace Marie Claiborne, 60, of Washington, D.C. for obstructing an official proceeding and making false statements to the FBI, both felony offenses, and for allegedly concealing numerous contacts that she had over a period of years with foreign intelligence agents.  The State Department phone directory dated March 27, 2017 lists Candace Claiborne as an Office Management Specialist (OMS) at the Office of Caucasus Affairs and Regional Conflicts (EUR/CARC). This office has desk officers for Armenia, Georgia, and Azerbaijan, as well as the Minsk Group Co-Chair.  The Minsk Group  provide a forum for negotiations towards a peaceful settlement in the Nagorno-Karabakh conflict involving Armenia and Azerbaijan.

The DOJ announcement notes that Claiborne has been an Office Management Specialist (OMS) for the Department of State in since 1999 and has served overseas at a number of posts, including embassies and consulates in Baghdad, Iraq, Khartoum, Sudan, and Beijing and Shanghai, China.  Given the lengths of the tours of duty, we suspect that she was in more than four posts in 18 years, but we have yet to see a copy of the FBI complaint. OMSs provide office management and administrative support including managing the calendar(s) and schedule(s) for senior staff, proofing, editing, tracking and filing documents, preparing agenda and materials for meetings, providing computer and mobile device support, knowledge management, and planning and assisting with official events and visitors. Read more about OMSs here.

According to the FBI agent’s affidavit supporting the criminal complaint and arrest warrant, “there is probable cause to believe that Claiborne made materially false statements to federal law enforcement officers, in violation of 18 U.S.C. 1001, and conspired with Co-Conspirators A B, and C to obstruct an official proceeding, in violation of 18 U.S.C. 1512. These criminal violations werc either begun or committed in Washington D.C., where Claiborne resides and works, and where the Department of State is headquartered or were begun or committed overseas, out of the jurisdiction of any particular state.”  But who’s Co-Conspirator A, and why wasn’t he charged?

Read the criminal complaint here via Politico. It looks pretty bad. 

Below is the DOJ announcement:

State Department Employee Arrested and Charged With Concealing Extensive Contacts With Foreign Agents

A federal complaint was unsealed today charging Candace Marie Claiborne, 60, of Washington, D.C., and an employee of the U.S. Department of State, with obstructing an official proceeding and making false statements to the FBI, both felony offenses, for allegedly concealing numerous contacts that she had over a period of years with foreign intelligence agents.

The charges were announced by Acting Assistant Attorney General Mary B. McCord for National Security, U.S. Attorney Channing D. Phillips of the District of Columbia and Assistant Director in Charge Andrew W. Vale of the FBI’s Washington Field Office.

“Candace Marie Claiborne is a U.S. State Department employee who possesses a Top Secret security clearance and allegedly failed to report her contacts with Chinese foreign intelligence agents who provided her with thousands of dollars of gifts and benefits,” said Acting Assistant Attorney General McCord. “Claiborne used her position and her access to sensitive diplomatic data for personal profit. Pursuing those who imperil our national security for personal gain will remain a key priority of the National Security Division.”

“Candace Claiborne is charged with obstructing an official proceeding and making false statements in connection with her alleged concealment and failure to report her improper connections to foreign contacts along with the tens of thousands of dollars in gifts and benefits they provided,” said U.S. Attorney Phillips. “As a State Department employee with a Top Secret clearance, she received training and briefing about the need for caution and transparency. This case demonstrates that U.S. government employees will be held accountable for failing to honor the trust placed in them when they take on such sensitive assignments”

“Candace Claiborne is accused of violating her oath of office as a State Department employee, who was entrusted with Top Secret information when she purposefully mislead federal investigators about her significant and repeated interactions with foreign contacts,” said Assistant Director in Charge Vale. “The FBI will continue to investigate individuals who, though required by law, fail to report foreign contacts, which is a key indicator of potential insider threats posed by those in positions of public trust.”

The FBI arrested Claiborne on March 28. She made her first appearance this afternoon in the U.S. District Court for the District of Columbia.

According to the affidavit in support of the complaint and arrest warrant, which was unsealed today, Claiborne began working as an Office Management Specialist for the Department of State in 1999. She has served overseas at a number of posts, including embassies and consulates in Baghdad, Iraq, Khartoum, Sudan, and Beijing and Shanghai, China. As a condition of her employment, Claiborne maintains a Top Secret security clearance. Claiborne also is required to report any contacts with persons suspected of affiliation with a foreign intelligence agency.

Despite such a requirement, the affidavit alleges, Claiborne failed to report repeated contacts with two intelligence agents of the People’s Republic of China (PRC), even though these agents provided tens of thousands of dollars in gifts and benefits to Claiborne and her family over five years. According to the affidavit, the gifts and benefits included cash wired to Claiborne’s USAA account, an Apple iPhone and laptop computer, Chinese New Year’s gifts, meals, international travel and vacations, tuition at a Chinese fashion school, a fully furnished apartment, and a monthly stipend. Some of these gifts and benefits were provided directly to Claiborne, the affidavit alleges, while others were provided through a co-conspirator.

According to the affidavit, Claiborne noted in her journal that she could “Generate 20k in 1 year” working with one of the PRC agents, who, shortly after wiring $2,480 to Claiborne, tasked her with providing internal U.S. Government analyses on a U.S.-Sino Strategic Economic Dialogue that had just concluded.

Claiborne, who allegedly confided to a co-conspirator that the PRC agents were “spies,” willfully misled State Department background investigators and FBI investigators about her contacts with those agents, the affidavit states. After the State Department and FBI investigators contacted her, Claiborne also instructed her co-conspirators to delete evidence connecting her to the PRC agents, the affidavit alleges.

Charges contained in a criminal complaint are merely allegations, and every defendant is presumed innocent until proven guilty beyond a reasonable doubt.

The maximum penalty for a person convicted of obstructing an official proceeding is 20 years in prison. The maximum penalty for making false statements to the FBI is five years in prison. The maximum statutory sentence is prescribed by Congress and is provided here for informational purposes. If convicted of any offense, the sentencing of the defendant will be determined by the court based on the advisory Sentencing Guidelines and other statutory factors.

At her court appearance today, Claiborne pleaded not guilty before the Honorable Magistrate Judge Robin M. Meriweather. A preliminary hearing was set for April 18.

The FBI’s Washington Field Office is leading the investigation into this matter. The case is being prosecuted by Assistant U.S. Attorneys John L. Hill and Thomas A. Gillice for the District of Columbia and Trial Attorney Julie Edelstein of the National Security Division’s Counterintelligence and Export Control Section.

It looks like the arrest warrant was issued yesterday, and the complaint was unsealed today, but we have yet to locate the charging document.  As with the DOJ statement, we should note that charges contained in a criminal complaint are allegations, and every defendant is presumed innocent until proven guilty beyond a reasonable doubt.

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Dear Future D/MR Heather Higginbottom — Your Third Priority Up Close With Prospective Savings

— Domani Spero

We would guess from the kind of email we get that a good number of our readers are not newbies or prospective employees of the State Department.  But every now and then, we’d hear from folks interested in joining the Foreign Service.  Recently, we heard from a prospective employee informing us that there are 600 individuals currently waiting on the State Department “Register.”

“Some have even lost their jobs after having Diplomatic Security show up to interview their supervisors and coworkers, only to be timed off the register for lack of hiring.”

Of course, being on the Register does not guarantee that you will be given a firm offer of employment.  But it means that 600 people have taken and passed the Foreign Service Officer Test (FSOT), have submitted their Personal Narratives, have passed the QEP and taken the Oral Assessment, have completed the required clearances: Medical and Security, have gone through the  Final Review Panel and are waiting on The Register, the rank-ordered list of successful candidates, sorted by career track.

Here is careers.state.gov:

“You should be aware that your placement on the Register does not guarantee an appointment as a Foreign Service Officer, for the number of appointments depends on the needs of the Foreign Service. Your rank-order on the Register is dynamic. People with higher scores will be placed above you regardless of when they are placed on the Register. Likewise, you will be placed above candidates with lower scores, regardless of how long they have been on the Register. Your name may stay in the Register for a maximum of 18 months. After that, your name will be removed. You may decline the first offer of employment. If you decline a second offer, your name will be removed from the Register. “

Screen Shot 2013-12-08

But … but… the State Department makes no mention that invitation to join the Foreign Service not only depends on the “needs of the Foreign Service” it also depends on funding from Congress.

Below is an extract from FY2014 State and Foreign Operations Budget Request:

The Administration’s FY2014 request seeks to grow its Human Resources account (under Diplomatic & Consular Programs) by 5% over its FY2012 level, to a total of $2.60 billion. While the Administration’s FY2014 request indicates that it plans 186 new positions at the Department of State altogether, 151 of these would be funded by consular fees and devoted to meeting increasing visa demand. The remaining 35 new positions (30 Foreign Service, 5 Civil Service) for which State seeks appropriated funding would be focused on the high priorities of the “rebalance” to Asia, and to staffing the Secretary’s Office of the Coordinator for Cyber Issues. As a point of comparison, the State Department requested appropriated funding for 121 new positions in its FY2013 request, and for 133 in its FY2012 request.

It is not clear from the justification above if the 186 new positions are FSOs or Limited Career Appointees (LNAs) tasked to handle visa work in selected places around the globe (Brazil, China, Mexico).  But what is clear is given the budget constraints, officials at the State Department know that their authority to hire new employees is severely restricted.

And yet, the FSOT continue to be administered multiple times a year.  Interviews continue to be conducted. The selection process continue to chug along as usual resulting in a glut of candidates waiting on the Register.  A good number of these individuals will most probably time out after 18 months.

So we asked a former State Department official who previously worked at BEX if this makes sense.  And got a royal scolding. Like, “what planet are you living in, girl?” Apparently, it’s what they do “free from reality” according to our source.

“It means little if there are 10 or 10,000 on the register. Also, all those people in HR and DS have to be kept busy, so they march on.”

That’s a little harsh, right?

But look,  if 600 people are sitting on the Register, that’s 600 candidates ready to hire.  Which also means the State Department had already paid for the medical examination of these individuals.  In addition, it had already conducted “a comprehensive background investigation, in cooperation with other federal, state, and local agencies, and has determined each candidate’s suitability for appointment to the Foreign Service and for a Top Secret security clearance.”

According to the GAO, the fiscal year 2012 base price for a top secret clearance investigation conducted by OPM is $4,005 and the periodic reinvestigation is $2,711.  For the State Department, the Bureau of Diplomatic Security’s Office of Personnel Security and Suitability, conducts all national agency and credit history checks in support of their investigations. Diplomatic Security investigators located worldwide also conduct all other investigative leads, which includes local law enforcement checks. While there is no readily available data on the TS clearance adjudications for State, it has been suggested elsewhere that the the average cost to process a TS clearance is between $3,000 and about $15,000, depending upon individual factors.

If we take the lower figure, $6,700 X 600 = $4,020,000.

If we take the upper figure, $15,000 X = $9,000,000.

The actual cost of processing the TS clearance for 600 candidates sitting on the Register is probably somewhere in the middle.  Add the medical clearance cost for the candidates and family members and you got quite a pile of money there.

If we only hire a third from that pool of candidates, how much money have we wasted?

President Obama recently announced the nomination of Heather Higginbottom, the new Counselor in the Office of the Secretary of State to be the third Deputy Secretary of State for Management and Resources. During her November confirmation hearing, Ms. Higginbottom told the Senate that her third priority, if confirmed, will be management, reform, and innovation.

Well, here’s one place to start.

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