Senator Grassley Eyes Linda Howard Case, Seeks Answers on TIP Policy and @StateDept Employees

Posted: 1:45 am EDT
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On October 20, 2011, State/OIG issued a report entitled Audit of Bureau of East Asian and Pacific Affairs Compliance with Trafficking in Persons Requirements (AUD/IP-12-02 – pdf). The audit found that Department employees were not uniformly aware of key matters relating to Trafficking in Persons (TIP), including what constitutes TIP activity, the penalties for TIP violations, and where to report allegations of violations. The OIG report notes that although the Department’s code of conduct prohibited employees from acquiring a commercial sex act and using forced domestic labor, it did not specifically address TIP or require employees to report suspected TIP violations.

Based on the report’s findings, OIG made four recommendations to State’s J/TIP. Of these four recommendations, OIG closed Recommendation 3 on July 23, 2013, based on the Department’s decision to designate OIG to receive reports of TIP violations. However, according to its follow-up report of September 2015 (pdf), the other two recommendations —  enclosure of the U.S. Government’s TIP policy in the Department’s Foreign Affairs Manual (FAM), and an expanded code of conduct for employees to cover conduct with respect to TIP activities — remained open.

State/OIG concludes that “by not implementing the recommendations or J/TIP providing an acceptable alternative to fulfill the intent of the open recommendations, the Department is not well-positioned to hold employees accountable for violations of TIP or ensure TIP policies and requirements are understood and followed.”

We missed this — but in September when State/OIG released the follow-up report(officially called Management Assistance Report) related to TIP, Senator Chuck Grassley also fired off a letter to Secretary Kerry asking questions sepcific not just to the OIG report but also the Linda Howard case (see Ex-State Dept Employee Settles Housekeeper’s Claim Over Slavery and Rape).

According to Senator Grassley’s letter, the Howard case “raises questions about the Department’s commitment to holding itself to the same standard by which it judges other countries in assessing their compliance with anti-trafficking standards in its annual TIP report.” Hey, we made it to the footnotes!

Screen Shot 2015-11-15

(click image to read the Grassley letter or click 2015-09-17 CEG to State (Trafficking in Persons)

Among the questions Senator Grassley asked Secretary Kerry are the following:

  1. Regarding the two TIP-related OIG recommendations that remain outstanding since 2011:
    1. Why did the Department fail to implement these recommendations?
    2. Who is responsible for the failure to implement them?
    3. Was former Secretary Clinton or any of her aides including Cheryl Mills, HumaAbedin, or Jake Sullivan informed of any of these recommendations, decisions, or findings? If so, please provide all related records, including emails. If the Secretary and her senior staff were not informed, please explain, why not.
  2. How does the Department ensure that its foreign service officers treat the domestic workers they hire or sponsor in accordance with the TVPA?
    1. As of the date of this letter, how many domestic workers are employed by Department employees worldwide?
    2. Do Department employees stationed abroad need to obtain approval from the Chief of Mission, the Regional Security Officer (RSO), or any other Department official before recruiting and hiring domestic workers? If so, whose approval is needed and what controls exist to ensure the security and safety of those workers as well as national interests? If not, why not?
    3. Is there an independent and confidential reporting mechanism by which these domestic workers may file a complaint with the Department for alleged abuses by Department employees? If not, will you consider adopting such a mechanism?
    4. Do you think implementing OIG’s 2011 recommendations would help Department employees identify and report suspected instances of TIP violations that may be occurring within their own ranks and housing complexes?

The senator is also asking questions specifically related to the State Department’s handling of the Howard case including:

— Did DS or the Department refer these allegations to any other entity, such as the OIG, or any other law enforcement agency? If so, on what date and to whom?

— At any point in time, was Under Secretary of Management Patrick Kennedy, who oversees DS, apprised of any of the allegations, decisions, findings, or news reports relating to Linda Howard or Russell Howard? If so, when, and what was his response? Please provide all related records, including emails. If not, why not?

— At any point in time, was former Secretary Clinton or any of her aides including Cheryl Mills, Huma Abedin, or Jake Sullivan informed of any of the allegations, decisions, findings, or news reports relating to Linda Howard or Russell Howard? If so, please provide all related records, including emails. If not, why not?

There is an FSGB grievance case (read online) that may or may not be related to the Howard case (names have been redacted) but the timeframe and circumstances appears similar, and it looks like DOJ declined to prosecute the case in 2011:

REDACTED (grievant) is a twenty-year Foreign Service employee of the Department of State (Department, agency). While assigned to the U.S. Embassy in REDACTED, she and her husband, an REDACTED national, were the subjects of a Bureau of Diplomatic Security (DS) investigation based on allegations by a household worker of sexual abuse and related crimes. This investigation began in June 2009 and ended with a declination of prosecution by the Department of Justice (DOJ) in March 2011.1 Grievant agrees that she curtailed from post in June 2009 for unrelated reasons.

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Senator Grassley Explains Hold on Thomas Shannon’s Nomination to be @StateDept’s #4

Posted: 2:21 am EDT
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Senator Chuck Grassley (R-IA) has placed a hold on the nomination of Ambassador Thomas Shannon as Foggy Bottom’s next “P.” Below is an excerpt in the Congressional Record with Mr. Grassley explaining his hold (see Senator Grassley Lifts Hold on 20 Foreign Service Nominations, Places New Hold on “P”). He stated that he is not questioning the credentials of Ambassador Shannon in any way; just pushing the State Department to “respond to congressional inquiries in a timely and reasonable manner.”

Mr. GRASSLEY. Mr. President, I intend to object to any unanimous  consent request at the present time relating to the nomination of  Thomas A. Shannon, Jr., of Virginia, a career member of the Senior  Foreign Service, class of Career Ambassador, to be an Under Secretary of State, Political Affairs.

I will object because the Department of State has still not responded  to almost a dozen investigative letters dating back to 2013. In  addition, on August 20, 2015, my staff met with Department officials in  an effort to prioritize material for production. The Department has failed to comply with its commitments, producing material late, failing  to provide all requested material, and even failing to provide material to the Senate Judiciary Committee contemporaneously with providing the same documents to Freedom of Information Act, FOIA, requestors. These are the same complaints that I raised on September 30, 2015, when I placed a hold on Brian James Egan of Maryland to be legal advisor of the Department of State. Apparently, the Department simply does not understand its obligation to respond to congressional inquiries in a timely and reasonable manner.

Two and a half years ago I began a broad inquiry into the government’s use of special government employee programs. I did not single out the State Department on this issue. To the contrary, I wrote to 16 different government agencies. Two and a half years have passed since I began my inquiry, and the State Department has still not produced the materials I have requested or certified they do not exist.

 In addition to the investigation of the Department’s special government employee program, I am also investigating the Department’s  compliance with the FOIA as it pertains to Secretary Clinton’s private server that was used to transit and store government information. The Minority Leader has questioned whether the Judiciary Committee’s jurisdiction extends to these matters. I would note that the special government employee designation is an exception to Federal criminal conflict-of-interest laws. Those laws are within the jurisdiction of the Judiciary Committee, as is FOIA.
[…]
As a further example of the Department’s continued intransigence, I requested all SF-312 “Classified Non-Disclosure Agreements” for Secretary Clinton, Ms. Huma Abedin, and Ms. Cheryl Mills on August 5, 2015. My staff met with Department personnel three times since that letter and participated in dozens of emails and phone calls in an effort to acquire these documents. In addition, after the Department complained that it had received too many requests from me, my staff produced a prioritized list of requests to assist the Department in producing responses. At number three on that list were the SF-312 forms, and at number one are the official emails of Mr. Pagliano. Notably, during conversations with my staff on the subject, Department personnel stated that they could not locate those forms with the exception of only page 2 of Ms. Abedin’s SF-312 exit form. On November 5, 2015, the Department produced SF-312 entrance forms for Secretary Clinton, Ms. Abedin, and Ms. Mills to a FOIA requestor but failed to provide the same to the Committee. Clearly, the documents exist.
[…]
The continued intransigence and lack of cooperation make it clear that the Department did not care enough about their Foreign Service  officer candidates to “get in gear” and begin to produce responses to  my oversight letters. Accordingly, I have released my hold on these officer candidates and have escalated to Mr. Shannon. The Department of State’s refusal to fully cooperate with my  investigations is unacceptable. As I have noted before on the floor of the Senate, the Department continues to promise results, but there has been very little or no follow-through. The Department’s good faith will be measured in documents delivered and witnesses provided.

My objection is not intended to question the credentials of Mr. Shannon in any way. However, the Department must recognize that it has an ongoing obligation to respond to congressional inquiries in a timely and reasonable manner.

Read the full entry in the Congressional Record here.

 

 

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Senate Pit Bull Digs Up Old Bone About State Dept’s Alleged Prostitution Case

Posted: 12:50 am EDT
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We’ve written previously about Senator Chuck Grassley’s pursuit for answers related to a State/OIG report on Trafficking in Persons (see Senator Grassley Eyes Linda Howard Case, Seeks Answers on TIP Policy and @StateDept Employees).   On November 23, Senator Grassley threw a larger net and has now included questions about the State Department’s response to an old allegation related to prostitution and a U.S. ambassador. Excerpt from the letter from Senator Grassley to Secretary Kerry:

[T]he Belgium case raises questions as to whether the Department takes allegations of TIP-related misconduct seriously and investigates them thoroughly, free from undue influence and favoritism. With the foregoing in mind, I respectfully request on behalf of this Committee that you submit responses to the following questions by December 11, 2015:

1. Why did the Department halt DS’s preliminary inquiry of the Belgium case and treat this matter as a “management issue”?

2. Why did Under Secretary Kennedy, DS, and L provide OIG with three different explanations of the decisions referenced in Question 1?

3. Was Secretary Clinton informed of the decision to halt DS’s investigation of the Belgium case or to treat it as a “management issue”? If so, please provide all related records, including emails. If not, please explain why not.

4. In how many other cases involving allegations of employee misconduct was Ms. Mills designated as the individual to conduct the investigation?

5. Under Secretary Kennedy told OIG that he had relied on Section 4322.2 of the FAM to address misconduct allegations involving other Chiefs of Mission. The Under Secretary acknowledged that such misconduct issues can arise several times each year. During Mr. Kennedy’s tenure as Under Secretary, how many misconduct allegations involving Chiefs of Mission have been treated as a “management issue”?

6. OIG states that it searched for and found no contemporaneous evidence of the Under Secretary’s determinations in this case, or of Ms. Mill’s investigation.31 OIG made this finding before public revelations that Secretary Clinton and her senior aides conducted official Department business through a private email server. Does the Department currently have access to any of the records OIG was unable to find? If not, will you commit to notifying this Committee as soon as such access is obtained?

7. In September, I wrote you about Linda Howard, who was found liable in federal district court for human trafficking offenses committed against her Ethiopian housekeeper, while Howard was stationed as a diplomat at the U.S. Embassy in Japan in 2008 and 2009.32 Reportedly, however, two years after DS interviewed the victim housekeeper about those offenses, Howard not only remained employed at the Department, but even received an honor award and a cash bonus.33 Was the Linda Howard case also treated as a “management issue”?

Full letter is here:

According to that 2014 report, the OIG “discovered some evidence of disparity in DS’s handling of allegations involving prostitution. Between 2009 and 2011, DS investigated 13 prostitution-related cases involving lower-ranking officials. OIG found no evidence that any of those inquiries were halted and treated as “management issues.”

Senator Grassley has been doggedly asking questions about various State Department issues the last few years.  We seriously doubt that the senator can be persuaded to drop this old bone. He’s up for reelection in 2016 so unless he is unable to multi-task, he probably will continue looking for answers on this  matter.  And of course, some folks will probably scream partisan witch hunt, and we can understand that, but …  we also think these are actually questions that need some real answers.

Should be interesting to see what he digs up.

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Related items:

— July 16, 2015: The ambassador’s tale: Lessons I learned about success and scandal by Former U.S. Ambassador  to Belgium Howard Gutman (WaPo Magazine).

— 09/30/14   Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (ESP-14-01)  [685 Kb] Posted on October 16, 2014

— May 10, 2012 | ROP Case No. 2011-064 | FSGB grievance case (read online) that may or may not be related to the Howard case (names have been redacted) but the timeframe and circumstances appears similar, and it looks like DOJ declined to prosecute the case in 2011.

 

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Ex-State Dept Employee Settles Housekeeper’s Claim Over Slavery and Rape

Posted: 4:01  am EDT
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In September 2012, we blogged about the Linda and Russell Howard case (see Court Awards $3.3 Million Default Judgment Against State Dept Couple Accused of Slavery and Rape of Housekeeper). The Court’s opinion dated September 4, 2012 is here — Jane Doe v. Linda Howard, et.al, (pdf).

On March 5, 2015, Australia’s Herald Sun reported that the Howards who moved to Melbourne were chased through the local court by Jane Doe and that Australian Justice Jack Forrest upheld the US decision. “My opinion is that it would be an abuse of process … to permit Mrs Howard to claim that Jane Doe’s claim was fraudulent,” Justice Forrest said.  “Mrs Howard chose not to agitate her claim … and it was her choice to leave the (United States),” the Herald Sun quotes Judge Forrest.

At that time, the report indicated that Mrs Howard’s legal team was considering an appeal.

On September 6, 2015, Australia’s The Age reported the settlement of the case, and provided more details on how the plaintiff pursued this case in Australian court.   Read more here.

The Daily Mail also reported on this case here citing Justice Forrest saying that Linda Howard “could not argue the housekeeper’s claim was fraudulent after remaining silent on the matter for two years and not fighting it in US courts when she had the chance.”   

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Embassy Row’s Dirty Little Secret: Abuse of Migrant Domestic Workers by Diplomats

— Domani Spero

The logic behind a restrictive interpretation of functional immunity is that while a diplomat may be protected from some distractions to aid his purpose, there ought to be no need for him to violate the laws of his host state to do so. As many legal scholars have pointed out, a diplomats behaviour in his host country is best described by the Arabic proverb, يا غريب خليك أديب (ya ghareeb, khalleek adeeb) – O stranger, be thou courteous. — Jaideep Prabhu 

Back when ….

In 2007, the Department of State reported that some foreign diplomats may be abusing the household workers they brought to the United States on A-3 or G-5 visas.  A subsequent Government Accountability Office (GAO) report the following year revealed that 42 household workers with A-3 or G-5 visas alleged that they were abused by foreign diplomats with immunity from 2000 through 2008. The GAO believes the total number of alleged incidents since 2000 is likely higher for four reasons: household workers’ fear of contacting law enforcement, nongovernmental organizations’ protection of victim confidentiality, limited information on some cases handled by the U.S. government, and federal agencies’ challenges identifying cases.

Via GAO 2008

Via GAO 2008

Each year, the State Department issues A-3 and G-5 visas to individuals whose employers are foreign diplomats on official purposes in the United States. Most of these individuals are hired to work for foreign diplomats in the District of Columbia, Maryland, New York, or Virginia. According to the 2008 GAO report, for fiscal years 2000 through 2007, 207 U.S. embassies and consular posts overseas issued 10,386 A-3 visas and 7,522 G-5 visas.

Recent State Department statistics indicate that from 2008 through 2012, it issued 5,330 A-3 visas to attendant, servant, or personal employee of A1 visa holders (ambassador, public minister, career diplomat, consul, and immediate family) and A2 visa holders (other foreign government official or employee, and immediate family).  It also issued 4,196 G-5 visas to attendant, servant, or personal employee of G1 through G4 (international organization officials and representatives).  That’s about a 50% decrease on A-3 visas and a 44% decrease in G5 visas issued since 2008. What might have accounted for that huge drop?

How about the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008?  Click here for the laws on trafficking in persons dating back to the year 2000.

In any case — five years ago today, President George W. Bush signed the TVPRA to combat human trafficking. Section 203 of the Trafficking Victims Protection Reauthorization Act of 2008 requires the secretary of state to suspend  the issuance of A–3 visas or G–5 visas to applicants seeking to work for officials of a diplomatic mission or an international organization, if the Secretary determines that there is credible evidence that 1 or more employees of such mission or international organization have abused or exploited 1 or more nonimmigrants holding an A–3 visa or a G–5 visa, and that the diplomatic mission or international organization tolerated such actions.

No secretary of state has ever exercise the authority to suspend any diplomatic mission despite some repeat offenders. For a look at what the State Department has done/not done when it comes to TVPA and domestic employees of foreign diplomats in the United States, read Janie A. Chuang’s critical paper on Achieving Accountability for Migrant Domestic Worker Abuse in the 2010 North Carolina Law Review.  One of the sections talks about the State Department’s “Failure to Use Power to Name, Shame, and Deter Wrongdoers.”

Chief of Mission Accountability

In 2008, the State Department through USUN sent this note verbale on the Treatment of Domestic Workers at UN Missions.

Recently, the host country has learned of a number of allegations of trafficking in persons with respect to domestic workers, including allegations of involuntary servitude and physical abuse. For example, this Mission has periodically been informed of instances where wages actually paid are less than those stipulated in an employment contract; where passports have been withheld from employees; where the actual number of working hours is considerably greater than those initially contemplated and no additional pay is provided; and where an employee is forbidden from leaving an employer’s premises even when off-duty. The United States Mission takes seriously any such allegation brought to its attention and refers these cases, as appropriate, to the United States Department of Justice for review and investigation.  
[…]
The United States Mission also wishes to advise the Permanent Missions that its commitment to fair and reasonable labor conditions is consistent with its commitment to human rights and, further, comports with the practice of other governments and with the requirements imposed by international organizations on their employees who have foreign domestic workers.  Although the United States recognizes that the great majority of diplomats and Mission personnel are law-abiding members of the United Nations community, it is necessary to periodically re-circulate and update information regarding United States laws, regulations and policies regarding the employment of personal domestic servants.
In fact, if you take a look at this archive of diplomatic notes, it is clear that the treatment of domestic employees, their contracts, prevailing wage, pre-notification requirements are recurring subjects.

In a 2009 diplomatic note, the State Department puts the heads of missions on notice that they are generally accountable for the treatment of domestic workers employed by their mission. We presume that this is a recurring reminder that the State Department sends to all diplomatic missions in the United States:

The United States Mission looks to the Permanent Representatives to be responsible for the conduct of the members of their missions and for ensuring that their treatment of domestic workers in their employ evidences respect for all relevant United States laws. In this regard, it is  recommended that the Permanent Mission maintain copies of the signed domestic worker contracts and be able to review such contracts, as well as records of payments made to each domestic worker, in the event that the United States Mission seeks assistance if faced with credible allegations of a mission member’s mistreatment of a domestic worker.

The United States Mission and/or the Department of State refer credible allegations of abuse of domestic workers by mission members which may constitute criminal conduct to the United States Department of Justice. In that context, the United States Mission and the Department of State may take other appropriate action, including, based on the determination by an appropriate prosecuting authority that prosecution is warranted, a request for a waiver of any applicable immunity. Mission members are not only expected to pay the greater of the minimum or prevailing wage and abide by other contract terms, but they should also be aware that in the United States, withholding a person’s passport maybe evidence of the crime of trafficking in persons if it is done with the intent of keeping that person in a state of forced labor or service.

In the Trafficking in Persons Report 2010, the State Department notes the following:
Worldwide, domestic workers employed by diplomats suffer abuses ranging from wage exploitation to trafficking offenses. Diplomats are government officials who serve their governments abroad and are generally able to apply for visas enabling domestic workers – often from third countries – to accompany them on their foreign assignments.
Because domestic servants working for diplomats work behind closed doors – cleaning, cooking, and caring for children – they can become invisible to the neighborhoods and communities they live in. Domestic workers brought into a country by diplomats face potentially greater isolation than other workers because of language and cultural barriers, ignorance of the law, and sheer distance from family and friends. They work for government officials who may appear to them to hold exceptional power and/or influence. The resulting invisibility and isolation of such workers raises concerns about the potential for diplomatic employers to ignore the terms of their employment contracts and to restrict their domestic workers’ freedom of movement and subject them to various abuses. Because diplomats generally enjoy immunity from civil and criminal jurisdiction while on assignment, legal recourse and remedies available to domestic workers in their employ – and the criminal response otherwise available to the host government – are often significantly limited.
And in March 2012, during the Annual Meeting of the President’s Interagency Task Force To Monitor and Combat Trafficking in Persons, then Secretary of State Hillary Clinton said this:

“We thought it was unfair for diplomats who victimized their own domestic workers were, because of diplomatic immunity, virtually untouchable. So now, we’re making sure that diplomats coming to this country understand their obligations and responsibilities, and we’re taking action when we have evidence that they are not.”

No one paid attention then,  but they’re paying attention now.

In the latest diplomatic row between the United States and India, the Times of India provided an unconfirmed timeline of the events.   It indicates that the State Department reportedly wrote to the Indian ambassador in Washington, D.C. on September 4, 2013 expressing “considerable concern” over the allegations.  On September 21, the Indian Embassy reportedly replied, “that this was none of US’ business and that the maid was seeking a monetary settlement and US visa, whereby subverting both Indian and US laws.”

If that timeline is accurate, one has to ask who miscalculated whose response?

 

“This is happening 10 miles from the White House”

– Martina Vandenberg, Human Trafficking Pro Bono Legal Center

Despite the many notable cases of abuse by diplomats ranging from non-payment of wages to sexual assaults, we do not see very often an arrest of a foreign diplomat or international representative in the United States. But following the arrest of  IMF’s Dominique Strauss-Kahn in 2011, Reuters did report the following:

Foreign diplomats have been the subject of at least 11 civil lawsuits and one criminal prosecution related to abuse of domestic workers in the last five years, according to a Reuters review of U.S. federal court records. The allegations range from slave-like work conditions to rape, and the vast majority of the diplomats in these cases avoided prison terms and financial penalties.

We have not been able to locate all civil lawsuits but the cases below are just a sampling of abuse allegations by domestic employees against their foreign diplomat-employers in the United States in the last several years.

Tae Sook PARK v. Bong Kil SHIN (South Korean Consulate/San Francisco) | Tae Sook Park, a domestic servant sued Deputy Consul General Bong Kil Shin of the Korean Consulate in San Francisco.  The Ninth Circuit Court of Appeals reversed a district court decision dismissing Park’s claims of labor law violations. It held that the deputy consul was not entitled to immunity under the Vienna Convention on Consular Relations or the U.S. Foreign Sovereign Immunities Act, and remanded the case back to district court. He later became ambassador.

Swarna v. Al-Awadi (Kuwait Embassy)|  Swarna Vishranthamma took to court her former employers, Badar Al-Awadi and his wife, Halal Muhammad Al-Shaitan and the State of Kuwait in 2009.  At the time of the events in question, Mr. Al-Awadi was a diplomat serving in New York City with the Permanent Mission of the State of Kuwait to the United Nations. According to WaPo,  Kuwaiti government hired a prominent law firm to defend him in the civil case — in court filings, he has denied the allegations — and then later promoted him to be Kuwait’s ambassador to Cuba.

Mildrate Yancho Nchang (Cameroon Embassy) | According to WaPo,  Nchang filed a case against her employers alleging she toiled for three years without pay or a day off and then was hospitalized after being beaten by a Cameroonian diplomat’s wife. She sued in federal court in Maryland, but the case was dismissed in 2006 when the diplomat asserted immunity.

Mazengo v. Mzengi, et.al. (Tanzania Embassy)| In 2007, Ms. Mazengo, a citizen of Tanzania, sued her former employers, defendants Alan S. Mzengi and Stella Mzengi, husband and wife, alleging that they falsely imprisoned her and subjected her to involuntary servitude and forced labor in violation of federal law. Alan S. Mzengi was a diplomat accredited to the embassy of the Republic of Tanzania.  WikiLeaks Alert: See the State-USEmbassy Tanzania demarche on the outstanding restitution for TIP victim, Ms. Zipora Mazengo.

Regina Leo (Kuwaiti Embassy) | In July, 2008, a lawsuit was filed against an attache in the Embassy of Kuwait, Brig. Gen. Ahmed Al Naser, and his family, by their former maid, Regina Leo, an Indian immigrant who alleged that she was forced to work as much as 18 hours per day.

Marichu Suarez Baoana (Philippine Embassy) | According to WaPo, in 2009, Ms. Baoana, a Philippine national sued the Permanent Representative of the Philippines to the United Nations, Lauro L. Baja Jr. alleging she was forced to endure 126-hour workweeks with no pay, performing household chores and caring for the couple’s grandchild.

Daedema Ramos (Kuwait Embassy) | In 2010, the Filipina housekeeper left a Kuwaiti diplomat’s Manhattan duplex where she worked 20 hours a day, earning as little s $500 a month. With help from Damayan, a grassroots organization fighting for the rights of low-wage Filipino migrant workers she escape her employer, and was encouraged to fight back. In July 2012, the diplomat settled with her after she demanded unpaid wages.

Sophia Kiwanuka (World Bank) | According to Reuters, World Bank economist, Anne Margreth Bakilana, hired a Tanzanian woman, Sophia Kiwanuka, to work in her home in Falls Church, Virginia, and improperly withheld Kiwanuka’s wages and threatened to send her back to Tanzania, according to court records. She pleaded guilty in 2010 and was sentenced to two years probation and fined $9,400.

Bhardwaj v. Dayal et al (Indian Embassy) |  In 2011, Indian national Santosh Bhardwaj filed a lawsuit against Indian Consul General Prabhu Dayal for allegedly intimidating her into a year of forced labor, where she was subjected to 105-hour workweeks for $300 per month. According to Indian Express, in December 2012, the Indian Ministry of Finance approved payment of $75,000 from the budget of Ministry of External Affairs to a “former domestic assistant” who had filed a lawsuit against India’s consul-general in New York, Prabhu Dayal. Click here to read an interview with Mr. Dayal in India Today concerning his case and the Khobragade case.

Araceli Montuya (Lebanon Embassy ) | She filed a lawsuit against  her former employer, the Lebanese Ambassador Antoine Chedid. On April 2011, U.S. District Judge James Boasberg in Washington threw out a case in which Montuya alleged that Chedid and his wife underpaid and verbally abused her.

Four former cooks and housekeepers (Qatar Embassy) |  According to Reuters, on March 2011, four former cooks and housekeepers for Essa Mohammed Al Manai, Qatar’s second-highest ranking diplomat in the United States filed a civil lawsuit alleging they were paid less than 70 cents per hour and “forced to work around the clock” at Al Manai’s six-bedroom home in Bethesda, Maryland. The suit also claimed that one of the women was sexually assaulted. More here.

F.V. (The Taipei Economic and Cultural Office) |  In 2011, Hsien-Hsien “Jacqueline” Liu, 64, of Taiwan, high-ranking representative of Taiwan was charged in federal court with fraud in foreign labor contracting for fraudulently obtaining a Filipino servant for her residence. Liu paid the Filipino worker $400-450 per month, although the employment contract stipulated a salary of $1,240 per month. Liu allegedly required the victim to work six days a week, 16 to 18 hours a day, and forbid her to leave the house without permission. (See Taiwanese Official in Kansas Charged for “Fraudulently Obtaining a Filipino Servant”).  Liu was arrested by the FBI on Nov. 10, 2011 and was detained for two months before entering a plea agreement. She eventually entered a plea agreement and was ordered to pay US$80,044 in restitution to the two maids. According to the Taipei Times, in 2012, Liu was suspended from her duties for two years for “seriously damaging the country’s reputation.”

Gurung v. Mahotra (Indian Embassy) | In 2012, a New York City Magistrate Judge  ordered Neena Malhotra, an Indian diplomat and her husband Jogesh to pay nearly $1.5 million reportedly arising from their employment of an Indian girl, Shanti Gurung who alleged “barbaric treatment” while she was employed as their domestic worker.

C.V. (Mauritius Embassy) | According to The Record, in 2012, Somuth Soborun, the Republic of Mauritius’ ambassador to the US pleaded guilty to the misdemeanor offense in September, admitting that he failed to properly pay a domestic worker minimum hourly and overtime wages between December 2008 and August 2009. He was fined $5,000.  As part of his plea agreement, Soborun has already paid $24,153 in restitution to the domestic worker, who was identified in court papers only by the initials C.V.

Kumari Sabbithi, Joaquina Quadros and Tina Fernandes (Kuwaiti Embassy) | In 2012, the ACLU represented three Indian women who were employed as domestic workers by Major Waleed Al Saleh and his wife Maysaa Al Omar of McLean, Virginia.  The complaint alleged that they were brought to the U.S. in the summer of 2005 and that they were forced to work every day from 6:30 a.m. until sometimes as late as 1:30 a.m. for approximately $250 to $350 a month. The complaint further alleged that they were subjected to threats and verbal and physical abuse, including one incident in which Al Saleh threw one of the women, Sabbithi, against a kitchen table, knocking her unconscious. The Kuwaiti government agreed to settle the case brought by three women who claimed that they were trafficked to the United States by a Kuwaiti diplomat and his wife.

USA v. Devyani Khobragade |  In December 2013, the Indian Deputy Consul General Arrested For Visa Fraud and False Statements Related to Domestic Worker

The  reported abuse of migrant domestic workers by diplomats and the staff of international organizations typically include wages and hour violations, passport deprivation, denial of the workers’ right to leave the house or premises in which they work, physical, sexual and emotional abuse and invasion of privacy, where domestic workers often have their rooms searched, their mail opened, and are not allowed to make private phone calls.  For additional reading, see  Joy M. Zarembka’s Global Woman: Nannies, Maids, and Sex Workers in the New Economy,which details the plight of some of the domestic workers brought to the U.S. by employees of international organizations.

Maid in Manhattan Case: U.S. Attorney Preet Bharara, the Man Who Makes Embassy Row Tremble

We suspect that nowhere is the  Khobragade Affair watched more closely than in the United Nations in New York and in the Embassy Row (the informal name for the streets and area of Washington, D.C. in which embassies, diplomatic missions, and other diplomatic representations are concentrated).  Besides India, that is.  To avoid possible “misunderstanding,” the State Department has recommended that diplomats keep employment records of their domestic workers including work hours and payment, records that should be maintained for the duration of actual employment of domestic employees plus three years.  Would be interesting to see how many diplomatic missions in the United States actually take this recommendation seriously.

In an interview with India Today published on December 23, the former Indian Consul General Prabhu Dayal who was taken to court by his former housekeeper in New York said that “in our consulates in the US, there is a lot of fear today.”

“India’s view has been that the domestic assistants of our diplomats hold Official Passports and should be outside the purview of US labour laws. The US side has not agreed to this, insisting that US laws apply to them. This impasse continues.[…] even if were were to revamp our system relating to domestic assistants, we will not be able to guarantee that our officials in our Consulates will not be arrested or dragged into law courts for some  reason or another in future. The US is a highly litigious country where suing people is a sort of favourite past time. […] There is no doubt, however that our officers posted at the Consulate in New York have begun to feel very insecure after all these recent cases, and the same may also be true for the other Consulates in Chicago, San Francisco, Houston and Atlanta. How will India protect its diplomats posted to the Consulates given the US position on immunity?”

But perhaps the more telling parts during this incident is the on the record statement made by a senior Indian official quoted by the Times of India below:
“Which Indian would pay a help Rs 6500 ($ 100) a day?” asked Shakti Sinha, a former principal secretary in the government of India who did various stints abroad, including at the World Bank and various UN agencies, assuming eight normal working hours.

FirstPost.com reports  on India’s former foreign secretary Kanwal Sibal’s opinion on this matter, quoting the former official as saying:

“There is much chicanery involved here. Indian diplomats taking domestic staff to the US accept the minimum wage requirement when all concerned, including the US visa services and the State Department, know this is done pro-forma to have the paper work in order. To imagine that the US authorities are duped into believing that our diplomats will pay their domestic staff more than what they earn is absurd. The US authorities have been clearing such visas for years to practically resolve the contradiction between reality and the letter of the law.”

And that’s probably why “there is a lot of fear today.”

Apparently, according to NYT, there are 14 other Indian maids working for Indian diplomats in the United States, and “India is negotiating over their status with the State Department.”  If a Deputy Consul General could be hauled to jail for underpaying her domestic employee, who could Preet Bharara go after next?

Dirty Laundry Gets Washed

The State Department’s TIP 2012 report says that “U.S. government employees, their dependents, and members of their households do not have immunity in the U.S. domestic legal framework for acts of human trafficking associated with domestic staff occurring at overseas postings. Any such reports will be fully investigated by Diplomatic Security and/or the Office of the Inspector General and, where appropriate, may result in either an administrative penalty and/or referral to the Department of Justice for criminal prosecution. These measures apply to Department of State employees overseas as well as their dependents and other members of household.”

It’s not an accident that the above item was included in the report.  The State Department had two recent cases of domestic worker abuse.

Harold and Kimberly Countryman | In 2006, Harold Countryman, a former Department of State agent, and his wife, Kimberly Countryman, a realtor in northern Virginia, pleaded guilty to aiding and abetting visa fraud.  According to the plea agreement, Kimberly Countryman admitted to using the fraudulent visa to further the forced labor of a Cambodian woman in their employ. According to court documents, the couple provided materially false information to the Department of State to obtain a visa on behalf of a Cambodian woman, who they then brought to the United States to work for them as a domestic servant for two years. In the plea agreement, Kimberly Countryman admitted that she procured the visa with reason to believe that the visa would be used to commit a felony, namely forced labor. As a result, Kimberly Countryman is subject to an increase in her sentence. Kimberly Countryman acknowledged that she withheld a portion of the woman’s pay, took possession of the woman’s passport, and physically assaulted the woman.  As part of the plea agreement, the Countrymans were required to pay $50,000 in restitution and $50,000 in forfeiture.

Linda  and Russell Howard |  In 2011, Jane Doe, an Ethiopian national in her 30s filed a lawsuit in the U.S. District Court for the Eastern District of Virginia against a State Department employee Linda Howard and her husband, Russell Howard, alleging involuntary servitude, forced labor and human trafficking in violation of the Trafficking Victims Protection Act of 2000 (TVPA).  She alleged that she was forced to work more than 80 hours a week for less than a dollar an hour; the exact amount was $0.88 an hour; the minimum hourly wage at the time of Jane Doe’s employment was $6.55 an hour.  Court awarded a default judgment to Jane Doe for total damages of $3,306,468.  Linda and Russell Howard had reportedly left the United States. See Court Awards $3.3 Million Default Judgment Against State Dept Couple Accused of Slavery and Rape of Housekeeper.

The Signal Plus the Noise, the Diplomatic Edition

The suspension of a high-ranking Taiwanese official for two years for “seriously damaging the country’s reputation” is the only case we are aware of in recent memory where an official was disciplined by the sending country in the aftermath of U.S. federal charges related to the treatment of a domestic worker.  In most cases, it looks like the official in question, protected by the sending state, gets moved elsewhere,  or even gets a promotion with no career repercussion. Clearly underpayment or mistreatment of a domestic employee is not considered a serious offense by a good number of diplomatic missions.

While diplomats continue to dodge cases like this behind diplomatic immunity, and as long as governments stand behind their diplomats when they commit infractions like this, the practice will continue. As the German Institute of Human Right points out: “...[E]mployers’ diplomatic immunity in prac­tice overrules the human rights of the victim and leads to a situation of de facto-unaccountability and –impu­nity for exploitative employers.”

In this India-U.S. row, we note that the outrage is focused on the circumstances of the diplomat’s arrest. And that is understandable. But it is also important to note that while the focus of the  outrage is the strip-search, few are talking about the alleged treatment of the domestic worker.  Unless, of course, we’re talking about the former Khobragade maid as a CIA agent.

In early December, Preet Bharara, the United States Attorney for the Southern District of New York also charged 49 Russian Diplomats/Spouses With Picking Uncle Sam’s Pocket in Medicaid Scam. Most of the diplomats charged are no longer in the country. And of the defendants still  here, most are attached to the UN Mission and presumably enjoy diplomatic immunity. If the U.S. may not be able to put anyone in jail nor be able to recoup the thousands of dollars in scammed Medicaid money, why charged them?  We suspect that the charges were brought to put a stop to the scam.  Basically a megaphone saying — we know what you’re doing, shame on you, now stop it.

As complicated as the Khobragade case may seem, it will be resolved eventually. A $90 billion bilateral trade partnership is at stake. Who would throw that partnership over the cliff for a mid-level official?  Or for an underpaid housemaid?  Stay tuned.  Perhaps the more interesting take on this incident is by Alison Frankel who writes, “For all we know, the State Department intended to send a message to the international diplomatic corps, which is often accused of cloaking itself in diplomatic immunity to avoid claims of mistreating domestic staff.”

Do we have an aha moment here?

* * *

 

 

 

 

 

Court Awards $3.3 Million Default Judgment Against State Dept Couple Accused of Slavery and Rape of Housekeeper

In 2011, Jane Doe, an Ethiopian national in her 30s filed a lawsuit in the U.S. District Court for the Eastern District of Virginia against a State Department employee Linda Howard and her husband, Russell Howard, alleging involuntary servitude, forced labor and human trafficking in violation of the Trafficking Victims Protection Act of 2000 (TVPA).

The complaint also alleges the rape of Jane Doe by Russell Howard, reportedly an Australian national, and a dependent of employee Linda Howard.

According to the complaint, Linda Howard met and hired Jane Doe during her assignment at the US Embassy in Yemen. Jane Doe was paid $200 a month as a housekeeper and made no allegation of mistreatment while employed in Yemen.  In late 2008, Linda Howard was reportedly reassigned to the US Embassy in Tokyo.  Jane Doe agreed to move to Japan with Linda Howard to continue working as a housekeeper.  Their signed contract reportedly guaranteed $300 a month, time off each week, health insurance and a safe place to live and work.

Among the other allegations made by Jane Doe:

  • She was forced to work more than 80 hours a week for less than a dollar an hour; the exact amount was $0.88 an hour; the minimum hourly wage at the time of Jane Doe’s employment was $6.55 an hour.
  • She was raped and was forced to engaged in sexual acts with Russell Howard in the Howards’ Tokyo residence.
  • She was threatened with deportation from Japan by Mr. Howard
  • The complaint says that after five months Jane Doe fled the Howards’ home and found help at a shelter in Tokyo. The women’s shelter reported the abuse to the US Embassy in Tokyo. While at the shelter Jane Doe met with Diplomatic Security investigators. When the case was filed in October 2011, it includes the following item: “Upon information and belief, the State Department’s investigation is still pending.”
  • At the time the lawsuit was filed, she alleged that while Linda Howard was removed from her posting at the US Embassy in Tokyo, Mrs. Howard remains employed by the State Department.

Some nasty, nasty stuff on this one, read the original complaint here.

The Courthouse News Service which reported this case on September 6 says that Linda Howard is currently an IT manager with the State Department in Washington, D.C.’s citing her profile on the professional-networking website LinkedIn. The profile notes that Howard worked as a “manager” for the State Department at the U.S. Embassy in Tokyo from 2008 to 2009. Before that, Howard worked for three years, from 2005 – 2008 as “Senior IT Manager, Acting Administrative Management Officer, Acting Human Resources Officer and alternate Financial Officer” at the Embassy in Yemen, according to the profile

The report from LexisNexis® Mealey’s™ Legal News says that when Russell Howard, who is from Australia, failed to respond to Jane Doe’s complaint, and Linda Howard’s answer to the complaint was stricken pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), Doe moved for default judgment, which Magistrate Judge Thomas Rawles Jones Jr. granted in an Aug. 7 report and recommendation.

… the judgment against Linda Howard was appropriate based on the four factors established in Belk v. Charlotte-Mecklenburg Board of Education (269 F.3d 305, 348 [4th Cir. 2001]):  bad faith, amount of prejudice, need for deterrence and effectiveness of less drastic sanctions.
[…]
Linda Howard acted in bad faith by telling the court that she was unaware of any upcoming overseas job-related travel and then two weeks later retiring and leaving the country, the magistrate judge said.

“There is a great need to deter defendants from determining that the proper response to litigation is to leave the country and refuse to participate in the resolution of a dispute.  Finally, in light of Mrs. Howard’s flight from the country, it is clear that less drastic sanctions would not be effective.”

The Court awarded Jane Doe total damages in the amount of $3,306,468, broken down as follows.

  • $1,250,000 for compensatory emotional distress relating to forced sexual servitude

 

  • $44,500 in compensatory damages for forced labor and trafficking

 

  • $2,000,000 punitive damages “in light of the Howards’ intentional egregious and outrageous conduct”
  • $11,968 for back wages and liquidated award as part of the Fair Labor Standards Act damages under the Trafficking Victims Protection Act of 2000 (TVPA)

The court documents relating to this case are available here to read (some documents listed need to be purchased before you can read them).  The Court’s opinion dated September 4, 2012 is here in pdf.

 

 

Trump’s Pick For @StateDept Personnel Chief Gets the Ultimate “Stretch” Assignment

Posted: 12:01 am PT
Follow @Diplopundit

 

On October 10, President Trump announced his intent to nominate former FSO Stephen Akard to be the next Director General of the Foreign Service. This position is typically not just the Director General of the Foreign Service but also the head of Human Resources for the State Department (DGHR).

Stephen Akard of Indiana to be Director General of the Foreign Service, Department of State. Mr. Akard has served as a senior advisor in the Office of the Under Secretary for Economic Growth, U.S. Department of State since January, 2017. Previously, he was chief of staff, vice president and general counsel, and director of international development for the Indiana Economic Development Corporation from 2005 -2017. From 1997 to 2005, Mr. Akard was an officer in the foreign service at the Department of State, with assignments in India, Belgium, and as a special assistant in the Executive Secretariat. He earned his B.A., M.B.A., and J.D. degrees from Indiana University-Purdue University Indianapolis(IUPUI). While at the State Department, Mr. Akard received two Meritorious Honor awards. He also received a distinguished alumni award from IUPUI in 2000.

According to its website, “the Indiana Economic Development Corporation (IEDC) is the State of Indiana’s lead economic development agency. The IEDC was officially established in February 2005 to replace the former Department of Commerce. In order to respond quickly to the needs of businesses, the IEDC operates like a business. Led by Indiana Secretary of Commerce Jim Schellinger and IEDC President Elaine Bedel, the IEDC is organized as a public private partnership governed by a board of directors.” The IEDC Board of Directors is chaired by the Indiana Governor. Mr. Akard has previously traveled with then Governor Mike Pence in trade missions to: Japan, Germany, Israel, Japan, and China (not an exhaustive list).

The Kelley School of Business at Indiana University lists Mr. Akard as part of the Advisory Board and has additional details of his prior assignments in the State Department; it does not mention being “a special assistant in the Executive Secretariat” as the WH-released bio, but as “a special assistant to Secretary of State Colin Powell”:

Akard oversees Indiana’s overseas economic development offices and works to attract international investors to the state as vice president and general counsel for the Indiana Economic Development Corporation (IEDC). Previously, Akard served as a career foreign service officer with the U.S. Department of State, holding positions as a special assistant to Secretary of State Colin Powell; political officer at the U.S. Embassy in Brussels, Belgium; and as a consular officer at the U.S. Consulate General in Mumbai.

Mr. Akard’s name appears on congress.gov’s list of appointees as Consular Officers and Secretaries in the Diplomatic Service of the United States of America submitted in October 1997, and confirmed by Senate voice vote on March 6, 1998 (see PN793). He is also on a list of Foreign Service Officers of Class Four, Consular Officers confirmed by Senate voice vote on July 11, 2001 (see PN508). If there are other records, we have so far been unable to locate them.

The May 1998 issue of State Magazine also noted Mr. Akard’s pre-assignment training to Mumbai, India, as was the practice in those days, but that’s about it from State’s official rag.  Talented and up and coming FSOs typically do end up as special assistants to the secretary of state, the top ranks at the State Department or the Executive Secretariat; or it used to be that way, not sure if they’re asking for blood oath these days.  Secretary Powell left State in January 2005, and he was succeeded by Secretary Condi Rice in 2005. We have not been able to find a notice of Mr. Akard’s 2005 departure from the Foreign Service but it looks like he joined the Indiana Economic Development Corporation (IEDC) on the same year that he left the Foreign Service.  We understand that he left the Service because “he was offered a great job working for Indiana.”  Somebody who knew him way back when told us “he is a super nice guy.”

Mr. Akard would not be the first member of the Foreign Service to resign from the Service and return to Foggy Bottom under a new appointment. The most recent example is the current Assistant Secretary for Consular Affairs Carl Risch (see Ex-FSO Who Once Advocated Moving Visas to DHS May be the Next Asst Secretary For Consular Affairs).  Both the afsa.org tracker and history.state.gov lists Mr. Risch as a non-career appointee. If Mr. Risch who served approximately three years, and one overseas tour is considered a non-career appointee, would Mr. Akard who served eight years with two overseas, and department tours also be considered a non-career political appointee? More importantly, is Mr. Akard considered a former career member of the Foreign Service?

Below is the relevant part of Section 208 of the Foreign Service Act of 1980 (22 U.S.C. 3928) is amended to read as follows:

§3928. Director General of Foreign Service

The President shall appoint, by and with the advice and consent of the Senate, a Director General of the Foreign Service, who shall be a current or former career member of the Foreign Service. The Director General should assist the Secretary of State in the management of the Service and perform such functions as the Secretary of State may prescribe.

(Pub. L. 96–465, title I, §208, Oct. 17, 1980, 94 Stat. 2080Pub. L. 103–236, title I, §163, Apr. 30, 1994, 108 Stat. 411.)

Last month, the Academy of American Diplomacy wrote a letter (PDF) to the Senate Foreign Relations Committee that includes the following part that we thought curious at that time.:

We believe the key positions of the Under Secretary for Political Affairs, the Director General, and the Dean of the Foreign Service Institute should be career Foreign Service Officers. The Director General, a position established by the Act, should be appointed from those that have the senior experience and personal standing to guide the long-term future of the staff needed for effective diplomacy. We respectfully ask that Congress get clarification as to whether it is the Department’s intention to nominate an appropriately senior serving or retired Foreign Service Officer for the position of Director General.

So now we know why the group of former senior diplomats sought that clarification.

One source points out that a “career member of the Foreign Service” is anyone who has been appointed as such, meaning “any tenured Foreign Service member.” The source also said that Mr. Akard’s appointment “though troubling in that his FS experience is limited and he clearly chose not to make it his career – would not violate” the Foreign Service Act.

Another keen observer of the Foreign Service explains that the Foreign Service Act of 1980 says “current or former career member” but he/she is not aware that anyone has previously tried to define those terms. Does that mean any former tenured member of the service? Does that mean any current FS member regardless of rank? Does that mean any member of the FS who retired, resigned, or anyone who voluntarily left for other reasons? And if an appointee is considered a former career member, does that mean the appointment is subject to the reappointment regs under the Foreign Affairs Manual, and also subject to its limitations?

Folks we talked to notes that the Akard appointment, if confirmed by the Senate, would certainly end the interpretation and practice that the Director General position be a senior career Foreign Service Officer of distinction.  To be clear, the language of FSA of 1980 does not destinguish between foreign service officers and foreign service specialists or make any mention of ranks.  But the observer points out that the spirit of Section 208 suggests that the intent was that the Director General be a senior Foreign Service Officer, active or retired, but someone who served a full career, to enable him/her to “assist” the Secretary of State in the “management of the Service.” A full career typically would mean service of at least 20 years. This point appears to be true in tradition and practice when we look at the appointees to the DGHR position going back to 1946 — all are senior career FSOs with significant experience. Prior appointees to this position include Ambassador Nancy Jo Powell who was appointed four times as ambassador prior to her appointment as DGHR; Ambassador Anthony Cecil Eden Quainton was also a four-time ambassador and twice an assistant secretary; Ambassador Alfred Leroy Atherton Jr. was NEA Assistant Secretary and twice an ambassador; Ambassador Nathaniel Davis was three times an ambassador before becoming DGHR; Ambassador Waldemar John Gallman was ambassador to Poland, South Africa, and Iraq before becoming DGHR, and on and on.

One could argue that the career diplomats previously appointed as DHGR were primarily diplomats and not personnel/organizational development experts. But it does not appear that the current nominee has personnel or organizational development expertise either to compensate for the gaps in his diplomatic/organizational experience: a former FSO who previously worked one tour (normally two years for junior officers) as a political officer, and another tour as a consular officer, if confirmed by the U.S. Senate, will need to manage a 75,000 global workforce that is facing not only funding cuts, demoralization, but also organizational transformation.

To borrow the Foreign Service parlance, this is the ultimate “stretch” assignment but it is likely that this nomination will get confirmed by the Senate. While the Senate’s confirmation process has at times been described as a “knife fight”, no executive nominations have been returned to this President or disapproved by the Senate during the current Congress. Senator Corker still runs the SFRC, but despite the tit-for-tat on Twitter with POTUS, the confirmation process has been humming along. We’ll be in the lookout for Mr. Akard’s confirmation hearing.

A side note here — for the first time, the White House this year has reportedly refused to submit an FSO’s name recommended for promotion by the Promotion Board for Senate confirmation this year. We understand that this specific case is winding through the grievance process, but we suspect that it could also end up in litigation. That case could have repercussions for Foreign Service members whose promotions and appointments are subject to White House concurrence and Senate confirmation.

Below via history.state.gov:

Congress created the position of Director General of the Foreign Service in the Foreign Service Act of 1946 (P.L. 79-726; 60 Stat. 1000). Between 1946 and 1980, the Secretary of State designated the Directors General, who held rank equivalent to an Assistant Secretary of State. The Director General became a Presidential appointee, subject to the advice and consent of the Senate, under the Foreign Service Act of 1980 (Oct 17, 1980; P.L. 96-465; 94 Stat. 2071). Since Nov 23, 1975, under a Departmental administrative action, they have concurrently held the title of Director of the Bureau of Personnel.

 

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Now Comes the Accountability Review Board Created by Congress, But Dammit! Congress Can’t Wait

Updated on 10/3/2012 @8:23 EST

The Cable’s Josh Rogin reports that  the State Department is setting up an independent, bipartisan panel to investigate what happened in the Sept. 11 attack of the Benghazi consulate that resulted in the death of Ambassador Chris Stevens and three other Americans.  The report cited  Deputy Secretary of State Tom Nides telling SFRC chairman John Kerry (D-MA) that the State Department had begun setting up the panel.

Last week, Secretary Clinton herself told reporters that the panel would be chaired by Ambassador Thomas Pickering, a highly regarded retired U.S. diplomat who served as ambassador to Russia, India, Israel, El Salvador, Nigeria, Jordan and the U.S. Mission at the United Nations.

The regulations that govern the Accountability Review Board were established by law crafted by Congress under either Title III of the Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended (22 U.S.C. 4831) or Section 140(c).

Here is the stated objective:

The ARB process is a mechanism to foster more effective security of U.S. missions and personnel abroad by ensuring a thorough and independent review of security-related incidents. Through its investigations and recommendations, the Board seeks to determine accountability and promote and encourage improved security programs and practices. In addition, the ARB mechanism enhances the integrity of the visa issuing process by determining accountability in certain instances in which terrorist acts in the United States are committed by aliens.

Security-related incident refers to: “A case of serious injury, loss of life, or significant destruction of property at or related to a U.S. Government mission abroad, or a case of a serious breach of security involving intelligence activities or a foreign government directed at a U.S. mission abroad (other than a facility or installation subject to the control of a U.S. area military commander).”

With this exception:

Public Law 109-140 and Public Law 111-117, the Secretary of State is not required to convene a Board in the case of an incident involving serious injury, loss of life, or significant destruction of property at or related to a U.S. Government mission in Afghanistan or Iraq and which occurs in the period beginning on October 1, 2005 and ending on September 30, 2010. *

What can possibly be going on behind the scenes?

Within the State Department is supposedly a small group called the ARB Permanent Coordinating Committee (ARB/PCC). What does it do?

The Committee will, as quickly as possible after an incident occurs, review the available facts and recommend to the Secretary to convene or not convene a Board. (Due to the 1999 revision of the law requiring the Secretary to convene a Board not later than 60 days after the occurrence of an incident, except that such period may be extended for one additional 60-day period the Committee will meet within 30 days of the incident, if enough information is available.) In addition, the Committee will meet yearly to review the ARB process, existing policies and procedures, and ensure that any necessary changes are effected.

A check with the current directory dated September 12, 2012 does not include a list of this committee. But in any case, a decision has already been reached that an ARB will be convened.

Who are the members of the ARB/PCC?

The FAM lists the membership of the ARB/PCC as follows:

(1) The Director of the Office of Management Policy, Rightsizing and Innovation (M/PRI), who will chair the Committee. ( The Director of M/PRI is currently listed in state.gov as William J. Haugh but the Sept 12,2012 directory indicates that this position is currently vacant).

(2) The Assistant Secretary for Diplomatic Security or the Principal Deputy; (this is currently, Eric J. Boswell or PDAS, Scott P. Bultrowicz)

(3) The Senior Deputy Assistant Secretary for Intelligence and Research; (currently listed as Principal Deputy Assistant Secretary Daniel Rubenstein)

(4) The Coordinator for Counterterrorism; (this would be the Ambassador-at-Large & Coordinator Daniel S. Benjamin)

(5) The senior deputy assistant secretary (or secretaries, as appropriate) of the relevant regional bureau(s); (the Principal Deputy Assistant Secretary for the Bureau of Near Eastern Affairs  is Elizabeth L. Dibble)

(6) One representative designated by and representing the DNI; and

(7) The Deputy Assistant Secretary for Visa Services (currently listed Deputy Assistant Secretary for Visa Services (CA/VO) is Edward J. Ramotowski)

c. Other participants: As a result of the State-Justice Memorandum of Understanding (MOU) dated September 20, 2001, the Department of Justice has been invited to attend PCC meetings. Also, as determined by the Chairperson, representatives of other offices and agencies may be invited to work with the Committee.

In addition, the Director of the Office of Management Policy, Rightsizing and Innovation (M/PRI) shall appoint a member of the M/PRI staff to be the ARB Staff Officer. If M/PRI is indeed vacant, then that is a problem, isn’t it?  The ARB Staff Officer will:

(1) Oversee the ARB process and ensure that all policies and procedures relating to the ARB are adequate and up-to-date;
(2) Serve as the institutional memory and primary point of contact within the Department for ARB matters;
(3) Maintain all permanent files, rules, procedures, rosters, libraries, etc., for the ARB; and
(4) Carry out ARB related staff work for the Committee.
b. ARB Executive Secretary: When a Board is convened, M/PRI will name an Executive Secretary to coordinate and facilitate the work of that Board. The Executive Secretary will normally be a senior Foreign Service officer or a retired senior Foreign Service officer who is recommended by DGHR/CDA. The tenure of the Executive Secretary will coincide with the tenure of the Board.

As well, the ARB Staff Officer maintains a list of potential members and at the Committee’s yearly meeting the list will be reviewed and updated. If the Committee recommends that the Secretary convene a Board, it will forward a list of potential Board members to the Secretary for approval. The Committee coordinates its activities in this area with the DNI’s representative.

Convening the ARB, Congressional Notification and Timeframe

According to regulations, the Secretary of State, makes the decision to convene a Board in writing and sets forth the names of the Board’s Chairperson and members, the purposes and jurisdiction of the Board (as established in Section 304 of the Act or, as appropriate, Section 140(c)) and its duration. The decision will be published in the Federal Register, or other similar document, if deemed appropriate by the Secretary.

As of to-date no noticed has yet been published in the Federal Register. However, the Secretary has 60 days from the occurrence of an incident to convene the ARB.  An extension of an additional 60 days is provided at the Secretary’s determination.  Any further delay beyond this requires congressional notification.

Whenever the Secretary convenes a Board, the Secretary is also required to promptly inform the chairman of the Committee on Foreign Relations of the Senate and the Speaker of the House of Representatives that the Board has been convened, the membership of the Board, and other appropriate information about the Board.

As to the timeframe of the ARB, the Board is expected to begin its work within a reasonable period of time following the Secretary’s decision to convene the Board. And it must be given ample time to conduct its investigations and write its report. Should a Board decide that the time allotted for its work is insufficient, it must apply, in writing, to the Secretary for an extension of time. A Board’s authority terminates on the date set forth in the Secretary’s order convening the Board, or on such date as is subsequently set by the Secretary.

The regs also says that the Secretary will, not later than 90 days after the receipt of a Board’s program recommendations, submit a report to the Congress on each such recommendation and the action taken or intended to be taken with respect to that recommendation.

ARBs Through the Years

Unfortunately, this is not the first ARB convened nor will it be the last.  The ARB with the most attention, of course, is the twin-ARBs chaired by Admiral William Crowe for the Embassy Bombings in Nairobi and Dar es Salaam on August 7, 1998. Admiral Crowe was sworn in September 2008 and the final report was released publicly in January 1999. The members of that ARB are listed here. Other ARBs were convened in 2003, 2005 (twice), 2006, 2008, then 2010 as follows:

  • On 27 Jan 2003, an Accountability Review Board was convened for the Murder of Laurence Foley, USAID Official in Amman, Jordan. Secretary Colin Powell appointed Ambassador Wesley Egan as Chair of the Board. He was assisted by Frederick Mecke, Timothy Deerr, George Wachtenheim, Charles S. Phalen, Jr., and by Executive Secretary Howard Perlow.
  • On 11 Mar 2005, the Accountability Review Board for the December 6, 2004 Attack on the U.S. Consulate in Jeddah, Saudi Arabia was convened.  Secretary Condolezza Rice appointed David C. Fields, a retired U.S. ambassador, as Chair of the Board. He was assisted by Melvin Harrison, John Geoff O’Connell, Carolee Heileman, Robert Benedetti and by the Executive Secretary to the Board, Mark Jackson.|
  • On 8 December 2005, Secretary Rice convened another Accountability Review Board to Examine the Circumstances of the Death of DS Special Agent Stephen Sullivan and Seven Security Contractors in September 2005 in Iraq.  She appointed Edward G. Lanpher, a retired U.S. Ambassador, as Chair of the Board. He was assisted by M. Bart Flaherty, Frederick Mecke, Mike Absher, Laurie Tracy and Executive Secretary to the Board, Robert A. Bradtke.
  • On May 2006  an Accountability Review Board To Examine the Circumstances of the Death of David E. Foy and Mr. Iftikhar Ahmed in March 2006, Karachi, Pakistan was convened. Secretary Rice appointed David C. Fields, a retired U.S. Ambassador, as Chair of the Board. He was assisted by Carolee Heileman, William Pope, Melvin Harrison, John Weber and the Executive Secretary to the Board, Hugo Carl Gettinger.
  • On 14 April 2008, Secretary Rice convened her fourth ARB, this time to Examine the Circumstances of the Death of John M. Granville and Abdelrahman Abees in Khartoum, Sudan in January 2008.  She appointed Michael W. Marine, a retired U.S. ambassador, as Chair of the Board. He was assisted by M. Bart Flaherty, Wayne S. Rychak, Lewis R. Atherton, Michael Pastirik and by Executive Secretary to the Board, Hugo Carl Gettinger.
  • On 22 October 2010, Secretary Clinton convened the first ARB during her tenure relating to the Death of Three DoD Personnel Assigned to the U.S. Embassy’s Office of Defense Representative Pakistan (ODRP) on February 3, 2010. She appointed Joseph Lake, a retired U.S. ambassador, as Chair of the Board. He was assisted by Robert Bryson, Lewis Atherton, Barbara Martin, Wayne Rychak and by the Executive Secretary to the Board, Linda Hartley.

With the exception of the Nairobi/Tanzania ARB which is online, none of the above ARB reports appear to be accessible to the public which makes us genuinely grumpy.

As far as we know there was no ARB convened for the August 8, 2012 suicide bombing at the Kunar Province of Afghanistan that killed a USAID Officer and wounded an FSO. The USAID/State officers were  presumably under the control of a military commander, so an ARB is not required.  We are also unaware of an ARB for the September 3, 2012 suicide car bombing which targeted a US Consulate General Peshawar vehicle that wounded four staffers.

Both cases, of course, are still within the 60 days (plus 60) timeframe for convening the Board.

>>>>>

Below is the section where I need to wear a paper bag over my head 😳 . No great excuse for the mess up except to cite the perils of blogging at midnight.  The 60 days (plus 60) provision under the regs is only for convening the ARB. Once the Board is convened, there does not appear to be anything on the regs that dictates the tenure of the Board except that it be given ample time to do its work. I believe that the Secretary may also specify the length of the Board (The FR notice says the Board will submit its conclusions and recommendations to Secretary Clinton within 60 days of its first meeting, unless the Chair determines a need for additional time). The only publicly available report was on an ARB convened sometime after September 1998 and with final report out in January 1999.  While I cannot make a direct correlation on the timeframe  in that ARB with the ARB for Benghazi, the place of investigations for the former included Kenya and Tanzania, where security issues were not as difficult as Libya in its post-civil war state.  I remain skeptical that the DS/OIG would have better luck putting agents on the ground than the FBI in support of the ARB or that the report would be ready before the election or the inauguration.

If we presume the shortest route possible for the Benghazi Attack ARB– let’s say the full Board is convened by end of October, it shall have until the end of December to do its work. Which is way too late for politicians in the middle of an election.  The Board can have an additional 60 days if needed, which would put us until the end of February.  Way too long after the inauguration of either a second term president or  first term president. If true that the FBI agents have yet to set foot in Benghazi, how long do you think it would take for the DS/OIG agents to get shoes on the ground?

So then, apparently, our senators could not wait to get more answers about the Benghazi attack.  They sent a letter to Secretary Clinton demanding more answers, and the letter itself has already sparked a partisan disagreement.  Is it a huge shocker then that Congress which created the ARB back when, could not wait for the ARB to start/conclude its work now?

Maybe Congress ought to seriously rethink the idea of an Accountability Review Board for the following helpful reasons:

1) Since Senators do not have the patience to wait 60-120 days for the ARB to work and deliver its report, and now uses the dead as political props, they deserve rotten tomatoes on their faces (pies would do also).  Why create the ARB in the first place if you do not trust that it will deliver the results you need? Go delete it from the regs so there is one less issue of 9,999 partisanship issues in Congress that you can concentrate on.

2) The ARB investigations are supported by OIG and DS agents, not by FBI agents who already are conducting their own interviews. If you double the work, will you double the results?

3) We note that the ARB exemptions for security incidents in Iraq and Afghanistan went into the books after the September 2005 attack which killed DS Agent Sullivan and seven contractors in Iraq.  How is it that we do not wish to “determine accountability and promote and encourage improved security programs and practices” in war zones?  Too much work or too many deaths?

That said, if you do not want to scratch out the ARB from the rules books, can you please make sure that all ARB reports are accessible to the nosy public?

*
Pub. L. 112–74, div. I, title VII, § 7034(m)(2),Dec. 23, 2011, 125 Stat. 1216, provided that: “The authority provided by section 301(a)(3) of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (22 U.S.C. 4831 (a)(3)) shall remain in effect through September 30, 2012.”