The Foreign Service Journal, April 2007

resented in 1995 as faits accompli, they never entered into force. And thus, for example, the department’s non-fraternization policy, which we all thought ended in 1995 (and which was, in fact, stricken from 12 FAM that year, courtesy of 95 State 93112), is still on the books and fully enforce- able. As 3 FAM 629.2-4 (1) states, “It is the policy of [the State Depart- ment] that reportable relationships… [with] national[s] of communist-gov- erned/allied countries ... will preclude continued security clearance for access up to and including top-secret information, and assignment to sensi- tive duties/posts which relate to the nationality of the intended spouse, cohabitant or partner in a relation- ship,” pending “full investigation.” Though this policy is inconsistently enforced, it nonetheless begs a ques- tion: Why is such a policy still on the books at all more than 15 years after the demise of the Soviet Union? Even more alarming — and, frankly, uncon- scionable— is the fact that in the post- 9/11 era, neither the 3 FAM nor 12 FAM CRR require employees to report contacts, friendships or even sporadic romantic or sexual interludes with known members of terrorist groups like Hamas, Hezbollah, the Taliban or al-Qaida (virtually none of whose members are nationals of the world’s five remaining communist countries) or with citizens of such U.S. adversaries as Iran, Syria or Burma. How would Secretary Rice explain this glaring oversight to a member of Con- gress or a reporter? And more funda- mentally, can this really be the depart- ment’s intended policy? Solution: Update the provisions of 3 FAM 4100, Appendix B, to reflect the realities and concerns of the 21st cen- tury; fully implement 95 State 93112. There is a documented pro- pensity on the part of DS to fabri- cate, and hold employees ac- countable to, contact reporting requirements that simply do not exist in the FAM. This profoundly disturbing tendency is all the more troubling when one considers the fact that in investigations of alleged CRR violations, the Bureau of Diplomatic Security plays the roles of investigator, finder-of-“fact,” prosecutor, judge, jury and first court of appeals. For example, an RSO at a major post in a communist country issued an official administrative announcement which, in part, read: “You should report any contact with a non-U.S. cit- izen in which you have continuing social contact” — a sweeping and intrusive directive that goes far beyond established policy and has no basis whatsoever in either the 3 FAM or 12 FAM. In another instance, DS actually changed a regulation to make it conform to an allegation in a DS proposal to revoke an employee’s security clearance. In other words, the employee hadn’t violated the rule, so DS changed (in its proposal to revoke) the wording of the rule to make it seem as if he had. This kind of behavior on the part of DS is unacceptable and must stop immediately. State Department em- ployees cannot be expected to follow, or be disciplined for violating, “rules” that do not appear in the FAM, the department’s only authoritative rule- book. Solution: Hold DS accountable for its actions and insist that it follow the same rules that govern every other bureau. The CRR are riddled with pro- found conceptual flaws and catch- 22s that render key provisions lit- erally nonsensical. As noted above, the communist-oriented non-frater- nization policy contained in 3 FAM, that we all thought became defunct long ago, remains on the books and is enforceable at the sole discretion of DS. DS is thus technically within its rights to strip a State employee of his or her clearance merely for reporting a communist national contact. What’s more, DS has declared in writing (in an unclassified e-mail message dated June 29, 2006) that it will not divulge the results of the vetting on reported contacts to employees who don’t have clearances, on the grounds that doing so might “compromise sources and methods.” So, by reporting a commu- nist national contact, an officer auto- matically loses his or her clearance (at least in theory), thereby forfeiting his right to the results of DS’s vetting of the contact — and thoroughly obviat- ing the point of reporting the contact in the first place. Furthermore, to the extent it is implemented, this policy renders meaningless another current 3 FAM provision that stipulates that the reporting of a relationship will trigger an “initial counseling session” in which a “counseling officer” will discuss with the employee “the effect of the [rela- tionship] on the employee’s career or future assignments” and “the employ- ee’s continued access to classified material.” But the counseling session becomes utterly pointless if the employee’s clearance has already been suspended, if the employee has already been curtailed from post, and so on. Thus, the defining feature of the department’s stated contact reporting policy — the notion that an employee can, without penalty, report a contact and get meaningful and timely feedback from DS as to any known security concerns associated with that contact “for use as [the employee] sees fit” (3 FAM) — is completely negated. Solution: Rectify conceptual flaws such as these immediately. The FAM fails to define nearly every term critical to an accurate understanding of the CRR. For example, not a single one of the fol- lowing six published terms referring to countries of special interest in the A P R I L 2 0 0 7 / F O R E I G N S E R V I C E J O U R N A L 15 S P E A K I N G O U T