Speaking Out

BY JENNIFER DAVIS

“This is every Foreign Service officer’s worst nightmare,” my career development officer said gently.

It was 2020, and I had just been informed that my security clearance had been suspended while Diplomatic Security investigated my use of a certain phrase during an official media interview two years earlier, in 2018, while I was serving overseas.

I was in shock. I had only learned of the investigation when my promotion was held in abeyance in 2019. What followed was a nearly five-year ordeal that involved both my security clearance, which was reinstated shortly after I was allowed to respond in 2021, and a subsequent lengthy disciplinary proceeding.

As the disciplinary proceeding ground on, in 2021, I wrote a letter of dissent to Secretary of State Antony Blinken about my case and sent a set of recommendations to improve State’s administrative security clearance and discipline procedures to Deputy Secretary of State for Management and Resources Brian McKeon. For this, I received AFSA’s 2022 Rivkin Award for Constructive Dissent.

At the award ceremony, I told the audience I never wanted to become an expert on this aspect of the State Department’s work. But my experiences had taught me that we cannot always choose what happens to us; we can only choose how we respond.

In the end, the Foreign Service Grievance Board fully exonerated me earlier this year, ordering my retroactive promotion, reconstituted performance and promotion boards, back pay with interest, and payment of attorney fees.

But the experience troubled me deeply. Several aspects of the State Department’s security clearance and discipline process lack basic elements of due process and fairness and must be reformed to protect the integrity of our institution and the rights of our employees.

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The basic facts of my discipline case are these: In 2018, as a consul general, I gave a media interview overseas at the request of our chargé d’affaires, relying on the standard practices of public diplomacy to do so. I had a pre-brief with my public diplomacy team; I worked from cleared talking points; and I checked in with my leadership before the interview.

During the media interview and after, while negotiating quotes and attribution, I used a phrase that is quite common in diplomatic parlance to explain our policy. The department would prefer I not share the details here, and I will honor that.

But it is fair to say the phrase is one uttered publicly by U.S. diplomats every day, and, in my case, it was used in pursuit of our mission’s first priority—the protection of our staff and American citizens.

Most antithetical to the basic principles of due process is that employees are not given the opportunity to provide evidence and be heard before department officials make decisions.

One might assume that if there had been concern in Washington about my use of a specific phrase at the time of the interview, someone would have raised that concern with me or the chargé right away. That did not happen.

Instead, I was not made aware of the department’s concerns until two years later. By that time, I and the other officials involved had left post and no longer had access to our emails except the few we had burned onto disks (for those new to the department, I realize this will seem quaint).

I was not informed until 2021—three years after the original media interview—why and how the department, based on its regrettably erroneous and incomplete understanding of the facts, had decided that my use of the phrase was grounds for discipline.

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The department based its understanding of the phrase I used on an action memorandum to the Secretary from 2017, but would not provide me with a copy of that memorandum or its analysis of why my use of the phrase might be problematic.

I would later learn that the department did not speak to the officials involved in drafting the action memorandum, nor seek to understand the context of our diplomacy or determine whether there were other contemporaneous unclassified documents that used the same phrase.

When the department refused to share the action memorandum, AFSA filed a successful unfair labor practice action with the Federal Labor Relations Authority (FLRA). Only then did the department provide AFSA and me with a copy of the memo and agree, as well, to send an ALDAC cable committing to avoid similar future unfair practices.

In providing the memorandum, the department failed to include its two unclassified attachments (saying they were “lost”), one of which contained cleared talking points on the topic for the mission’s use and the very messages I had shared. It took several months to obtain a copy of those attachments.

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Currently, in security clearance and discipline cases, the department collects facts and information, sometimes without informing individuals that their conduct is under review. It prepares its conclusions of fact in a Report of Investigation and then determines whether misconduct has occurred and, if so, what penalty is appropriate.

Only after making these decisions does the department allow an employee to offer their own evidence—essentially as an appeal of a decision that has already been made (without the benefit of the employee’s perspective and evidence).

The employee is then asked to convince the supervisors of decision-makers in various offices that the offices should reverse themselves, overcoming all the bureaucratic inertia that comes with defending decisions already made.

What became clear throughout my ordeal is that we have established systems that do not serve our institution, our diplomacy, or our employees. I have respect for the dedicated officials undertaking these cases, but they manage crushing caseloads without sufficient resources within systems that lack the basic elements of due process.

The reforms I recommended in 2021 are straightforward. They were not implemented but should be now.

Jennifer Davis in the peace garden the U.S. Consulate Istanbul staff created in appreciation for her efforts to protect them and wrongfully detained colleagues, 2019.
U.S. Consulate Istanbul

Right to Be Heard and Review Evidence. Most antithetical to the basic principles of due process is that employees are not given the opportunity to provide evidence and be heard before department officials make decisions.

This not only prevents the department from understanding all the facts necessary to render a fair decision but also puts the employee in the unfair position of challenging narratives already solidified without the benefit of relevant information.

In this way, the burden is unwittingly shifted to the employee, who must prove that the department’s conclusions are incorrect, instead of requiring the department to determine that misconduct occurred after hearing all the facts.

Also, it is self-evident that the department should not withhold relevant documents (in my case, documents that were the very basis of the department’s case) from an employee.

Transparency. State should provide employees with fair and timely notice when they are alleged to have committed misconduct. Pursuant to 3 FAM 4322.3(d), the department must give an employee “appropriate notice that an administrative inquiry has been opened.” Yet many employees only find out about an inquiry when changes to their personnel files are frozen.

The department should not only routinely inform employees of inquiries, but also provide the employee with an explanation of the disciplinary process and what to expect. Several different offices are involved in these discipline inquiries, and for employees in shock, it becomes a sea of acronyms and procedures to which they have never been exposed.

Even providing this information as a one-page handout would improve the current opacity.

Length of Time. Two years into my case, I was told that it was being “expedited”—and that was after an official joked during an interview that the case was “so old it had whiskers.” It should not have taken five years to move my case to a neutral arbiter.

The long delays often cause employees, whose careers and lives are placed on hold, to wave a white flag.

To achieve the correct outcomes while still protecting the rights of our employees, we must place limits on the amount of time these cases can remain pending and provide the relevant offices with the human resources they need to expeditiously and fairly adjudicate their backlogs.

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I remain hopeful that the State Department will implement these reforms. Throughout my ordeal, I was buoyed by messages of support from colleagues, mentors, and friends, who at times had to inject steel into my spine to stay the course. Yet at my core, and despite the significant harm, I believed eventually justice would prevail. It did.

It goes without saying that the protection of our national security information is critical. The laws and regulations that ensure government officials protect sensitive information are essential to the proper conduct of diplomacy. I have taken great care, including in jobs where I was charged with protecting some of our nation’s most sensitive information, to fully honor those commitments.

Before joining the Foreign Service, I practiced law, and in college I studied U.S. history and political science. I come from a military family, and, as with other Foreign Service officers, it was my profound love of country and our special experiment with democracy that led me to join our diplomatic corps. As a political officer overseas working on democratic reforms, I lauded our emphasis on transparency and due process and our protection of freedom of speech and dissent.

Today, the same love of country that brought me to the Foreign Service endures. I understand what a privilege it is to have an abiding faith that justice will prevail, to believe in the capacity of our systems to reform, to have the right to express my dissent, and to have benefited from the steadfast support of my colleagues and AFSA.

Every day, brave and committed U.S. Foreign Service officers step out into the diplomatic trenches, in complex and sometimes murky environments, promoting U.S. interests and protecting American citizens and our employees overseas.

The need for proactive and vibrant diplomacy in the field is as great as ever, and our diplomats must know that our institution will treat us with transparency and fairness as we conduct that challenging work.

Jennifer Davis is a career Foreign Service officer currently serving as the senior U.S. coordinator for lawful migration in the State Department’s Bureau of Population, Refugees, and Migration. She previously served as the chief of staff at the U.S. Mission to the United Nations, consul general in Istanbul, as the executive assistant to Secretaries of State Hillary Clinton and John Kerry, as special assistant to Secretary Condoleezza Rice, and in several other overseas and domestic tours. She is the 2022 recipient of AFSA’s Rivkin Award for Constructive Dissent. Prior to joining the Foreign Service, she was an attorney in her native North Carolina. She is married to a fellow diplomat and is the proud mom of two sons. The opinions expressed here are offered in her personal capacity and are not intended to represent the positions of the Department of State.

 

Read More...

• “Evaluation Reform at State: A Work in Progress” by Alex Karagiannis, The Foreign Service Journal, April 2020
• “Reforming State’s Personnel System Could Work This Time” by Ronald E. Neumann, The Foreign Service Journal, July-August 2019
• 2022 Awards for Constructive Dissent, The Foreign Service Journal, December 2022