Open Technology Fund, et.al v. Michael Pack: Where the Accountability Rests – At the Ballot Box

 

OPEN TECHNOLOGY FUND, et al., Plaintiffs, v. MICHAEL PACK, in his official capacity as Chief Executive Officer and Director of the U.S. Agency for Global Media, Defendant
For nearly 80 years, international broadcasting sponsored by the United States has served as a trusted and authoritative global news source, a forum for the expression of diverse viewpoints on the most pressing topics of the day, a model of journalistic excellence and independence, and a beacon of hope for those trapped within authoritarian regimes. Despite being funded by American taxpayers, U.S. international broadcasting has typically remained free of governmental interference. Indeed, its autonomy and its commitment to providing objective news coverage has often been viewed as key to its ability to advance the interests of the United States abroad. Our country’s commitment to this model of cultural export has largely been viewed as a rousing success, helping to undermine and topple some of history’s most oppressive regimes—including Nazi Germany and the Soviet Union—by spreading freedom and democracy around the globe. The current Chief Executive Officer (“CEO”) of the United States Agency for Global Media (“USAGM”)—the defendant, Michael Pack—is accused of putting this legacy at serious risk. Since taking office less than a month ago, Pack has upended U.S.-sponsored international broadcasting. Most relevant to the current dispute, on June 17, 2020, Pack unilaterally removed the operational heads and directors of four USAGM-funded organizations—Open Technology Fund (“OTF”), Radio Free Europe (“RFE”), Radio Free Asia, and the Middle East Broadcasting Networks (collectively, “Networks”)1—and replaced the directors with five members of the current Trump Administration as well as an employee of Liberty Counsel Action, a conservative advocacy organization.
[…]
Pack’s actions have global ramifications, and plaintiffs in this case have expressed deep concerns that his tenure as USAGM CEO will damage the independence and integrity of U.S.- sponsored international broadcasting efforts. If they are correct, the result will be to diminish America’s presence on the international stage, impede the distribution around the world of accurate information on important affairs, and strengthen totalitarian governments everywhere. Yet, Congress has decided to concentrate unilateral power in the USAGM CEO, and the Court cannot override that determination. If Pack’s actions turn out to be misguided, his appointment by the President and confirmation by the Senate points to where the accountability rests: at the ballot box. Based on an evaluation of plaintiffs’ likelihood of success on the merits, the solution is likely not in this Court.
Read in full here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv1710-22

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Secretary of State to be Sole Recipient of ARB Report, Will Also Determine Its Subsequent Distribution.

 

On June 1, 2020, the State Department updated its Foreign Affairs Manual (12 FAM 030) covering the Accountability Review Board (ARB). The chair of the ARB Permanent Coordinating Committee will now be the director of the Office of Management Strategy and Solutions (M/SS). If we remember correctly, this used to be the director of M/PRI (Office of Management Policy, Rightsizing and Innovation (M/PRI). Another update relates to the classification authority of Board Members; they have no original classification authority; M/SS will exercise original classification authority on the Board’s work materials.  On the ARB’s findings, the Board submits its findings to the Secretary of State through M/SS.  The updated regs make clear that “the report will initially be provided solely to the Secretary, who will determine its subsequent distribution.”
The updated regs has not eliminated 12 FAM 036.4  which refers to Reports to Congress (an update from 10-05-2017). Per the ARB statute, 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 with respect to that recommendation.”
The Secretary is required to submit “a report” to the Congress not later than 90 days but the regs does not require him/her to submit the ARB report. The new regs says the secretary of state will determine the report’s “subsequent distribution.”

12 FAM 035  FINDINGS AND RECOMMENDATIONS

12 FAM 035.1  Findings
(CT:DS-332;   06-01-2020)

a. Examination:  A Board will examine the facts and circumstances surrounding the security-related incident or a visa incident.

b. Written submission:  In its report to the Secretary, a Board makes written findings, which may be classified, as necessary.

c.  Dissemination of findings:  The board submits its written findings directly to the Secretary through the M/SS director, whose role is only to classify the document as appropriate (the Board members do not have original classification authority), and L, whose role is to offer legal advice about the report, including ensuring that the report meets the legal requirements laid out in 22 U.S.C. 4834.  The report will initially be provided solely to the Secretary, who will determine its subsequent distribution.  The Board’s written findings are distributed as directed by the Secretary following the Secretary’s receipt of the Board’s written findings.

12 FAM 034.2-5  Classification Authority
(CT:DS-332;   06-01-2020)

Members of the Board do not have original classification authority.  The director of M/SS will exercise original classification authority for materials originating from Board activities.

12 FAM 032.1  ARB Permanent Coordinating Committee (ARB/PCC)
(CT:DS-332;   06-01-2020)

a. Purpose:  The ARB/PCC 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 ARB/PCC will meet within 30 days of the incident if enough information is available.) In addition, the ARB/PCC will meet yearly to review the ARB process, existing policies and procedures, and all past ARB recommendations, and ensure that any necessary changes are effected.

b. Membership:  The ARB/PCC will be composed of the following members:

(1)  The director of the Office of Management Strategy and Solutions (M/SS), who will chair the ARB/PCC; or designee

(2)  The Assistant Secretary for Diplomatic Security or designee;

(3)  The Assistant Secretary for Intelligence and Research or designee;

(4)  The coordinator for Counterterrorism or designee;

(5)  The assistant secretary or designee of the relevant regional bureau(s)

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

(7)  The Assistant Secretary for Consular Affairs or designee.

    NOTE:  Designees must have the authority to vote at ARB/PCC meetings on behalf of their principal; they may not defer decisions until they have briefed the principal.

c.  Other participants:  As a result of the State-Justice Memorandum of Understanding (MOU) dated September 20, 2001, the Department of Justice has attended PCC meetings.  The Department’s Deputy Legal Adviser, director of the Bureau of Medical Services, and Executive Secretary of the Executive Secretariat, or his/her designees, will attend PCC meetings.  Also, as determined by the chairperson, representatives of other offices and agencies may be invited to work with the ARB/PCC.  Participants listed in this section do not vote.

 

SFRC Chairman @SenatorRisch Chickens Out From Holding Oversight Hearing With Pompeo

 

Pompeo Hosts Game of Distraction: From “Enormous Evidence” to “Somewhere in the vicinity of the lab” #cliffhanger

 

 

Pompeo, May 7, 2020:

“I think the whole world knows that this began and originated there in Wuhan.  Where exactly it came from, it matters.  We want to know the answers to that.  There’s evidence that it came from somewhere in the vicinity of the lab, but that could be wrong.”

Pompeo, May 3, 2020:

And Mr. Secretary, have you seen anything that gives you high confidence that it originated in that Wuhan lab?

SECRETARY POMPEO:  “Martha, there is enormous evidence that that’s where this began.  We’ve said from the beginning that this was a virus that originated in Wuhan, China.  We took a lot of grief for that from the outside, but I think the whole world can see now.  Remember, China has a history of infecting the world and they have a history of running substandard laboratories.  These are not the first times that we’ve had a world exposed to viruses as a result of failures in a Chinese lab.  And so while the Intelligence Community continues to do its work, they should continue to do that and verify so that we are certain, I can tell you that there is a significant amount of evidence that this came from that laboratory in Wuhan.”

Matt Armstrong on Understanding the White House’s Attack on VOA

Matt Armstrong served as the Executive Director of the U.S. Advisory Commission on Public Diplomacy in 2011.  From August 2013 through January 2017, Matt served as a Governor on the Broadcasting Board of Governors, since renamed the U.S. Agency for Global Media. He is an MPhil/PhD candidate at King’s College London in the Defence Studies Department (since January 2020), an Associate Fellow at King’s Centre for Strategic Communication at King’s College London, and an Adjunct Lecturer for the Joint Special Operations University.

Pompeo Helpfully Highlights Lisa Simpson’s Cesspool on the Potomac

OH. MY.
“The city of Washington was built on a stagnant swamp some 200 years ago, and very little has changed. It stank then, and it stinks now. Only today, it is the fetid stench of corruption that hangs in the air. And who did I see taking a bribe but the “Honorable” Bob Arnold! Don’t worry, Congressman, I’m sure you can buy all the votes you need with your dirty money! And this will be one nation, under the dollar, with liberty and justice for none.” – Lisa Simpson
See the longer snippet here in Mr. Lisa Goes to Washington.

 

BONUS item:

World’s Greatest Debilitative Body Votes Acquittal in Best Show Category

 

 

GAO Report Cites @StateDept’s Obstruction in Ukraine Security Funds Review

 

Via GAO:

We also question actions regarding funds appropriated to State for security assistance to Ukraine. In a series of apportionments in August of 2019, OMB withheld from obligation some foreign military financing (FMF) funds for a period of six days. These actions may have delayed the obligation of $26.5 million in FMF funds. See OMB Response, at 3. An additional $141.5 million in FMF funds may have been withheld while a congressional notification was considered by OMB
[…]
Letter from General Counsel, GAO, to Secretary of State and Acting Legal Adviser, State (Nov. 25, 2019). State provided us with limited information.
[…]
As a result, we will renew our request for specific information from State and OMB regarding the potential impoundment of FMF funds in order to determine whether the Administration’s actions amount to a withholding subject to the ICA, and if so, whether that withholding was proper. We will continue to pursue this matter.

HFAC Seeks @StateDept Documents on Possible Surveillance of Amb Yovanovitch

 

 

Congressional #Iran Briefing: Who Got Shushed, Who Got Mad