AFSANET: AFSA REMINDS EMPLOYEES TO REPORT FOREIGN CONTACTS AND TRAVEL

Important information on revision of rules for reporting FOREIGN CONTACTS AND INTENT TO MARRY OR COHABIT WITH FOREIGN NATIONALS
May 11, 2009

This is a message for all Foreign Service members from AFSA General Counsel Sharon Papp.

For more than five years, AFSA has undertaken vigorous efforts – including multiple demarches and letters to State Department management, collaboration meetings, and Foreign Service Journal articles – to bring about a long-overdue update of the regulations governing the reporting of foreign contacts, cohabitation and intent to marry foreign nationals. The Bureaus of Diplomatic Security (DS) and Human Resources (HR) have finally revised these regulations. DS and HR worked closely with AFSA lawyers on these new rules and accepted many of our suggestions.
HR has rescinded 3 FAM 4100 Appendix B (old 3 FAM 629, 1988). DS has developed an entire 12 FAM chapter, 12 FAM 270 - Security Reporting, that is intended to be the primary area employees can go to to find security reporting requirements. 12 FAM 270 covers processes relating to the marriage to and cohabitation with foreign nationals, implication of dual citizenship on your security clearance as well as other incidents that employees with clearances must report (such as arrest, bankruptcy, etc.) Please note that the sections on foreign contact (12 FAM 274) and travel reporting (12 FAM 276) are merely extracts of those sections of 12 FAM 260 that were placed in 12 FAM 270 for the readers convenience and are not intended to contradict or supercede the base policy in 12 FAM 260. 12 FAM 262, Contact Reporting (February 2, 2009) has been updated to clarify certain aspects of the 2001 version. HR has developed a new chapter, 3 FAM 4190, Marriage Requirements of an Employee to a Foreign National or to a U.S. citizen (April 7, 2009) to cover topics that deal with HR processing after the marriage has taken place.
Foreign Service members obviously have extensive contacts with foreign nationals both in their professional and personal lives, so it is vital that these regulations be fair, sensible, and easy to navigate. Unfortunately, as AFSA has repeatedly warned in recent years, the previous foreign contact reporting requirements were not well-known, well-understood or well-publicized. There were key areas of the rules that made little sense in today’s world and needed to be updated and clarified. The old 3 FAM contact rules, which covered intent to marry, cohabitation, and contact with nationals from “communist/allied countries” were even worse, as they had last been updated in 1988.

AFSA encourages all of our members to familiarize themselves with the new rules, especially the rules relating to foreign nationals from countries with critical threat posts and travel to critical threat posts. Because failure to comply with these regulations can result in the suspension or revocation of your security clearance, curtailment from post, and disciplinary action, if in doubt about whether to report, seek the advice of the RSO or your Agency’s security office. The AFSA attorneys are also available to give confidential advice regarding these issues.
The regulations cited below apply to all employees and contractors under chief of mission authority as well as State Department employees and contractors assigned to the United States. Employees of other Foreign Affairs agencies serving in the United States should check with their Agency’s security office for reporting requirements or contact AFSA’s attorneys for guidance.

Foreign Contract Reporting Requirements.

Key requirements of the 12 FAM 262 and 12 FAM 274 regulations are:

The new rules require employees to report “unofficial contact with a national from a country with critical human intelligence threat (HUMINT) posts listed on the Department’s Security Environment Threat List, which can be accessed on the DS Source Web page, if the employee and/or critical threat foreign national suggests, agrees to or actually has a second meeting after the initial encounter.” 12 FAM 262.1b.(1) and 12 FAM 274.2(e)(1). The old rule required reporting only when the foreign national suggested the second meeting.

The new rules have eliminated the requirement from 3 FAM 4100, Appendix B (old 3 FM 629) to report relationships with foreign nationals from non-critical HUMINT threat countries involving continuing romantic or sexual intimacy. However, DS may question employees about such relationships and such relationships may impact an employee’s security clearance or assignments because they may make an employee vulnerable to blackmail (for example, if the employee is married and his or her spouse is unaware of the extra marital relationship) or there may be other security concerns based upon the foreign national’s occupation, family members, etc.

The new rules require employees to report “[c]ontact and/associations with persons or organizations who the employee knows or suspects advocate the unlawful overthrow of the U.S. Government. This reporting requirement includes, but is not limited to, persons who the employee knows or suspects are members or supporters of foreign terrorist organizations (FTOs) as designated by the Secretary of State.’’ 12 FAM 262.1b.(2) and 12 FAM 274.2 (e) (2).

Like the old rules, the rules require employees to report ‘’unofficial contact with a person who the employee knows or suspects is a member of a foreign intelligence agency, regardless of nationality.’’ 12 FAM 262.1b.(3) and 12 FAM 274.2(e)(3)

Like the old rules, the rules require employees to report a contact any time “[i]llegal 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 exploitation by a foreign entity.” 12 FAM 262.1b.(4) and (5) and 12 FAM 274.2(e) (4) and (5).

Contact reports should be made immediately or within one business day of the contact.

Contact reports (Form DS-1887) should be filled out on line using e-forms.

The new rules define what DS considers to be a contact, which include all manner of personal and impersonal contact, including email, text messaging, chat rooms, etc.

If an employee is unsure whether to report a contact, he or she must do so. Reports at post are to be made to the RSO. Domestically, State employees should contact DS/ICI/CI. Employees of other foreign affairs agencies posted domestically should contact their agency’s security office.

The RSO must give an arrival briefing to all employees assigned to post, which must include information on counterintelligence issues of concern at post, contact reporting responsibilities, and the names of all current critical human intelligence threat posts.

Domestically, State employees will be briefed on counterintelligence issues through their bureau security officer.

Requirement to Report Personal Travel to Critical Human Intelligence Threat and other Countries.

12 FAM 264 and 12 FAM 276 advise 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 two weeks in advance of personal travel to any country with a critical human intelligence threat post, including travel with tour groups, and certain countries with which the U.S. does not have diplomatic relations. For a list of these countries, whose names are classified, see the Security Environment Threat List (SETL) which is available on the classified network links on the Department’s Home page and the DS Source Home page. State Department employees stationed domestically should directly notify DS/ICI/CI. Employees of other foreign affairs agencies should contact their Agency’s security office or the AFSA attorneys for guidance.
A further description of procedures and forms may be found in 12 FAM 264. The Department encourages spouses and adult dependents of employees to advise the RSO, PSO, or DS/ICI/CI 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.

Reporting Requirements for Employees with SCI Access.

12 FAM 264.2(g) 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.

Reporting Requirements for Employees who Intend to Marry or Cohabit with a Foreign National.

Reporting your intent to marry or cohabit with a foreign national is intended to allow for: DS to provide you with a determination on whether the intended relationship will have an adverse impact on your security clearance; and, for HR to do the same for your career, before you take action. Key requirements of the 12 FAM 275 regulations are:

The new rules shortened the period of notice employees must give to DS prior to marrying a foreign national (including a U.S. citizen who is also a dual national) from 120 days prior to the expected date of marriage to 90 days. State employees who have not heard back from DS within 90 days should contact the DS/SI/PSS Customer Service Center to check the status of their case. Employees of other foreign affairs agencies should check with their Agencies’ security office or HR officer. 12 FAM 275.3-5 states that if the Department has not reached a determination within 90 days regarding the intended marriage, the employee “is free to make a risk-managed decision as to whether to proceed with the marriage based on his or her careful review of the national security adjudicative guidelines.” AFSA attorneys are available for consultation regarding this issue.

Employees posted abroad must submit the same security package and obtain approval from the Chief of Mission or Principal Officer prior to beginning to cohabit with a foreign national (or a U.S citizen) in U.S. Government provided housing. Note: Seeking approval to cohabitate is separate and distinct from declaring a member of household to the COM under 3 FAM 4181.

Employees serving domestically must submit their security package ti DS within 30 days from the start of a cohabitation relationship with a foreign national but they do not need to seek and obtain permission before hand as they do when the cohabitation occurs abroad in U.S. government provided housing.

Cohabitation is defined as sharing a living unit on a frequent and regular basis without regard to the nature of any interpersonal relationship or reason for sharing the living quarters. This includes, but is not limited to minor children, room mates, foreign exchange students, and members of households.

Regardless of duty location, DS will conduct appropriate foreign indices and other checks on the intended foreign national cohabitant or spouse.

Cohabitating or marrying a foreign national could have negative repercussions on an employees’ security clearance or assignment to critical threat or other posts. See 12 FAM Exhibit 12 FAM 275.3-1 which contains the security related criteria used in evaluating clearance eligibility. The Chief of Mission, Career Development Officer, or Executive Officer will initially counsel the employee on the potential impact the relationship may have on the individual’s clearance and assignments. AFSA attorneys are available to provide guidance to Foreign Service employees regarding this issue.

Other Reporting Requirements.

12 FAM 270 has several additional reporting requirements to those discussed above with which employees should be aware.

State Department employees must immediately report to DS/SI/PSS wage garnishment, credit judgments, repossessions, tax liens, bankruptcies, and/or intentions to file for bankruptcy.
State Department employees must report to DS/SI/PSS within 72 hours adverse involvement with law enforcement agencies to include arrests (other than minor traffic violations) for which a fine or forfeiture of $150 or more was imposed or arrests for “driving under the influence” or “driving while intoxicated.”

Employees with security clearances contemplating applying for citizenship with a foreign country must report to DS/SI/PSS when any act is initiated in furtherance of obtaining foreign citizenship.

Possible Consequences of Not Reporting.

Failure to report foreign contacts, travel to a critical threat country, or intent to marry/cohabitation may result in the employee’s curtailment from post, suspension/revocation of security clearance, and/or disciplinary action. Therefore, if in doubt, report the contact or call one of AFSA’s attorneys for confidential guidance.
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.