AFSANET: AFSA REMINDS EMPLOYEES TO REPORT
FOREIGN CONTACTS AND TRAVEL
February 2, 2005

BY SHARON PAPP, AFSA GENERAL COUNSEL

Recently, AFSA has represented a number of Foreign Service employees (officers and specialists) in Diplomatic Security investigations and security clearance proceedings before DS's Office of Personnel Security and Suitability where the focus has been on the requirements for reporting contacts with foreign nationals and travel to countries with a critical counterintelligence threat post. Based on these interviews and security clearance adjudications, it appears that the requirements are not well-known, well-understood or well-publicized. In addition, there are areas of the rules that need to be updated or clarified. AFSA has discussed these issues with DS and has suggested that DS send out a notice clarifying and publicizing the contact reporting requirements. To our knowledge, the last official guidance issued to the field was 95 State 93112, "Relationships and Contact Reporting" issued on April 15, 1995, over nine years ago. We have also suggested that the Bureau of Human Resources consult with DS regarding much needed changes in 3 FAM 4100 (which contains HR's separate contact reporting requirements) since this portion of the FAM is over 16 years old. We understand that DS has been working on guidance for the past several months and hopes to get it out soon. HR is also in the process of updating 3 FAM.

In some circumstances, failure to report contacts has led to some very serious consequences, including curtailment from post, lengthy security clearance suspensions, and proposals to revoke employees' security clearances. Therefore, it is imperative that all Foreign Service employees understand and abide by the requirements for reporting contacts to the best of their ability. If in doubt about the need to report a contact, we urge employees to err on the side of caution by discussing the issue with the Regional Security Officer at post, DS/IS/SSO (for SCI related issues) or DS/ICI/CI (or, if you work for foreign affairs agency besides the State Department, your agency's office of security in Washington).

We apologize in advance for the length and confusing nature of this guidance. Part of the confusion regarding the contact reporting requirements stem from the fact that separate guidance exists within 3 FAM and 12 FAM. There are also additional rules for employees who have Special Compartmented Information Access (those with SCI clearances).

The regulations cited below apply to Foreign Service employees assigned abroad as well as those assigned to the United States. In AFSA's experience, many Foreign Service employees do not realize they have to report contacts with foreign nationals when they are in the United States. In addition, according to a recent case handled by AFSA, DS may view an individual who is a citizen of the U.S. and another country (a dual national) as foreign national (rather than a U.S. citizen) for contact reporting purposes. Therefore, employees should err on the side of caution and seek guidance from DS on whether they must fill out contact reports on persons who are dual nationals.

Specific FAM requirements are discussed in the following paragraphs.

12 FAM 260 REQUIREMENTS (2001).

REPORT ANY CONTACT WHERE ILLEGAL OR UNAUTHORIZED ACCESS TO INFORMATION IS SOUGHT

12 FAM 262.1 states that employees must report contacts with individuals of any nationality whenever illegal or unauthorized access is sought to classified or sensitive information or when the employee is concerned that he or she may be the target of actual or attempted exploitation by a foreign entity. Such contact should be reported immediately or within one business day of the contact and Form DS-1887, (Contact Reporting Form) should be completed. AFSA believes most employees understand and comply with this rule. If a foreign national asks suspicious questions of your spouse or friends, this should also be reported to the RSO.

REPORT INITIAL CONTACT WITH NATIONALS FROM COUNTRIES WITH CRITICAL HUMAN INTELLIGENCE THREAT POSTS

12 FAM also states that employees must report the initial contact with a national from a country with a critical threat post "when that national attempts to establish reoccurring contact or seems to be actively seeking a close personal relationship beyond professional or personal courtesies." 12 FAM 262.4 states that disciplinary action could result from an employee's failure to report a contact under 12 FAM 262.1. (In AFSA's experience, employees have been reprimanded, i.e., a letter is placed in their official performance file for one year, for failure to report contacts.) While employees are required to report these contacts, access to a list of countries designated as "critical threat", derived from the Department's Security Environment Threat List may prove difficult. DS/CI has advised AFSA that it is working to establish a link on the classified network to a document outlining the critical threat countries as described in 12 FAM 262. Until then, the SETL can be accessed on CLAN by going to the DoS Home Page, clicking on cable retrieval archive system, and entering SETL in the subject search line.

Employees are reminded "Reporting contacts under this policy is not accomplished by, nor does it constitute reporting required by 3 FAM 4180 - Marriage, Equivalent Bonds and Cohabitation" (see discussion below). Therefore, presumably, a report under 3 FAM 4180 alone does not alone satisfy the requirement of 12 FAM 262.1 and vice versa. Potentially, two contact reports must be created in some circumstances in order to satisfy the FAM guidance.

While 12 FAM 260 states that employees may be disciplined for failure to report contacts under this provision, it neglects to say that an employee may have his or her clearance suspended or revoked for failure to report a contact. AFSA is aware of several cases in which DS investigated employees for failing to report "one night stands" with individuals from countries with critical threat posts, where it was the employee and not the national who initiated the contact, there was no "continuing relationship" as defined in 3 FAM 4100, and no requests for sensitive or unauthorized information were made. At this time, we do not have a clear understanding of DS's view with regard to this issue. We hope that it will clarify this issue in its upcoming guidance. In the meantime, AFSA urges employees to err on the side of caution, especially if the national is from a critical threat post. As mentioned above, DS recently advised an employee that it considers individuals who are dual nationals (U.S. citizens and citizens of a country with a critical threat post) to be foreign nationals for contact reporting purposes. Therefore, these contacts should be reported if they otherwise fall within the requirements of the regulations.

REPORT TRAVEL TO COUNTRIES WITH CRITICAL THREAT POSTS

12 FAM 264.2 advises that all U.S. Government employees under the authority of a chief of mission must notify the RSO or PSO at post of residence using either a classified memorandum or telegram at least three weeks in advance of personal travel to any country with a critical human intelligence threat post, including travel with tour groups. Employees stationed domestically should directly notify DS/ICI/CAS. A further description of procedures and forms may be found in 12 FAM 264. These requirements govern travel to countries with a critical human intelligence threat post identified in the DS/ICI/CAS semi-annual composite threat list and to certain countries with which the United States does not have diplomatic relations. The Department encourages spouses and adult dependents of employees to advise the RSO, PSO, or DS/ICI/CAS as appropriate of their personal travel, and to receive any available defensive security briefings, especially those at post of residence. In addition, if the traveler is detained or subjected to significant harassment while traveling, he or she is to report this to the nearest consul, attaché, RSO or duty officer immediately. For additional instruction, see 12 FAM 264.2. AFSA also encourages employees to visit http://source.ds.state.sgov.gov/ on a secure computer and visit DS/CI's vast resources of relevant counterintelligence information).

While AFSA believes most employees know that they need to file a report if they are detained or subjected to significant harassment, we do not believe employees are aware of the requirement to provide advance notice of travel to countries with critical threat posts. As in contact reporting, there is no mention of the possible suspension or revocation of a security clearance for non-compliance with this regulation. However, DS has recently cited an employee's unannounced travel to a country with a critical human intelligence threat post as a bases for a recommendation to revoke his security clearance.

12 FAM 264.2 states that employees having access to sensitive compartmented information (SCI) have a special security obligation and are required to give advance notification to the SCI control officer at their duty station of their plans to travel to a country with a critical human intelligence threat post, or any country so designated by the Attorney General. Prior to such travel, persons with SCI clearances must receive a defensive security briefing from their SCI control officer. These special restrictions apply while actively holding SCI clearances and for one year after access to SCI has been terminated.

Additional rules apply to employees with SCI clearances that are beyond the scope of this guidance. We encourage employees to review Department Notice dated September 28, 2004.

3 FAM 4100 (OLD 3 FAM 629 EMPLOYEE MARRIAGE EQUIVALENT BONDS AND COHABITATION) REQUIREMENTS (1988)

3 FAM 629.2-1 requires the following:

REPORT INTENT TO MARRY A FOREIGN NATIONAL

All U.S. citizen Foreign Service employees from State, AID, Commerce, Agriculture, IBB, and all other Department of State employees or contractors with sensitive duties who intend to marry a foreign national employee must inform the employing agency within 120 days prior to the expected date of marriage. If an employee has not heard back from DS after 120 days, AFSA suggest the employee contact DS to find out the status of the matter. Do not assume that everything is alright if DS hasn't provided a response within 120 days. Even if an employee has complied with the reporting requirements, there may be concerns with the employee's intended spouse or the spouse's family that could affect the employee's security clearance. Thus, it is better to err on the side of caution and check back with DS before proceeding with the marriage.

REPORT RELATIONSHIPS WITH CERTAIN NATIONALS

Employees must report any relationship (not only continuing relations) with a national of a "Communist-governed/allied country" and such relationships should be reported at the first opportunity. However, it is obvious that this guidance is over 16 years old. It is unclear what countries are still designated as "Communist-governed/allied". Generally, just five countries can be so described: People's Republic of China, Cuba, Democratic People's Republic of Korea, Laos and Vietnam. As world government has evolved dramatically since the collapse of many communist regimes in the last 16 years, the Department should clarify the intent of this guidance. Although it may be presumed that this guidance should now pertain to criteria or countries with critical threat posts, until such time as updated information is provided, the old 3 FAM 629 provisions hold forth.

With the advent of electronic dating services and e-mail exchanges, it not clear whether employees must report cyber relationships with individuals they have never met in person. Again, if in doubt, check with the RSO or DS.

REPORT COHABITATION WITH FOREIGN NATIONALS

Employees must complete a contact report when they cohabitate or develop a romantically or sexually intimate and continuing relationship with a foreign national. Contact reports should be filled out within one month of the date cohabitation with a foreign national begins. Cohabitation means sharing living quarters, such as a house or apartment, for at least the majority of a week. Contact reports are required even if the relationship is not sexual. The same rules apply to heterosexual and homosexual relationships.

REPORT CONTINUING ROMANTIC OR INTIMATE RELATIONSHIPS WITH FOREIGN NATIONALS

Relationships involving continuing romantic or sexual intimacy without cohabitation must be reported when the employee determines that it is in f act a continuing relationship. Employees are not required to report sporadic relationships with non-communist governed/allied country nationals until such time as the employee contemplates marriage, cohabitation, or a long term relationship. The FAM states that non-reporting of a relationship under this section will not constitute a security violation or result in disciplinary action, as self-determination is the intent of the criterion. In addition, the FAM states "a security clearance will not be suspended solely because the employee did not report a relationship under this criteria". In a recent case, however, DS suspended and moved to revoke an employee's security clearance based, in part, on the employee's failure to report what DS (but not the employee himself) believed was a "continuing relationship" with a national from a non-communist nation.

CONCLUSION

DS is entitled to expect high standards from employees who hold clearances. However, AFSA firmly believes that employees are entitled to know what the rules are and what the consequences are for violating those rules. We hope that DS's upcoming guidance will simplify and clarify the reporting requirements of 3 FAM and 12 FAM. We also hope that HR will update the contact reporting rules in 3 FAM in the near future. In the meantime, we encourage employees to take a common sense approach to reporting and apply the guidance as closely as possible. Don't hesitate to seek guidance from the RSO and report more than might be required. If you wish to speak with an AFSA attorney about this, please direct your questions to Sharon Papp, General Counsel or Zlatana Badrich, AFSA Labor Management Attorney, tel: (202) 647-8160 or email papps@state.gov or badrichz@state.gov.