Great news: The HAVANA Act is headed to the President’s desk. I am committed to providing needed support & benefits to US personnel & family members injured in alarming attacks in Havana, China & around the world. We must get to the bottom of this & hold perpetrators accountable. https://t.co/ShFmCiZsZ3
The GAO recently released its review of the State Department’s overseas real property assets:
State’s Bureau of Overseas Buildings Operations operates and maintains over 8,500 owned and leased real property assets, including both buildings and structures. According to State, at least 60 percent of a building’s total lifecycle cost stems from operations and maintenance costs. GAO has reported that deferring maintenance and repairs can lead to higher costs in the long term and pose risks to agencies’ missions.
GAO was asked to review State’s efforts to manage its operations and maintenance needs. This report examines (1) how operations and maintenance funding for overseas assets changed from fiscal years 2016 through 2020, (2) the condition and maintenance needs of State’s overseas assets, and (3) the extent to which State has followed leading practices to address its deferred maintenance backlog.
Officials said they had not found it necessary to specifically request such funding because they only determined that the backlog had substantially increased from $96 million in fiscal year 2019 to $3 billion in fiscal year 2020 after using a new methodology for estimating deferred maintenance and repair. In addition, State does not have a plan to address the backlog, but officials estimated it could take 30 to 40 years to eliminate the backlog with current funding levels.
Dear, lord! What is this going to be like by 2050?
–The Department of State’s portfolio of overseas assets and expenditures to operate them have grown, but State-allocated funding for maintenance has stayed nearly the same. For fiscal years 2015 through 2019, both the number and square footage of State’s assets increased 11 percent and operations expenditures grew 24 percent. However, maintenance and repair funding has remained nearly unchanged.
— State’s allocation for Maintenance Cost Sharing—for projects collectively funded by State and tenant agencies overseas—was $399 million in fiscal year 2016 and $400 million in 2020.
From fiscal years 2016 through 2020, building operating expenditures for State and other agencies that work at overseas assets increased by 24 percent, from $530 million to $656 million annually. State’s allocated funding for maintenance and repairs for overseas assets has remained about the same in recent years, averaging $505 million from fiscal years 2016 through 2020.
That $3 Billion Could be Higher
— State set a single acceptable condition standard of “fair” for all assets and did not consider whether some assets, like chancery office buildings, were more critical to State’s mission when estimating its $3 billion deferred maintenance backlog. Had State set a higher condition standard for critical assets, its backlog would be higher.
It All Adds Up Over Time
— Older chancery office buildings tend to be in poor condition and are a challenge to maintain. As shown earlier in table 4, we found that 72 of 216 (or 33 percent) chancery buildings—that OBO identifies as mission condition due to a large amount of deferred maintenance that has built up over time.
Ambassadorial Residences Take Note
In discussing the condition of ambassadorial residences with State, OBO officials said they have taken steps to evaluate and rank State’s ambassadorial residences that are in need of major rehabs. OBO officials told us that State has preliminarily identified the need to rehabilitate or replace ambassadors’ residences in Beijing, China; Kathmandu, Nepal; Nairobi, Kenya; Ottawa, Canada; Paris, France; Sarajevo, Bosnia and Herzegovina; and Tegucigalpa, Honduras. However, OBO officials said there is no formal schedule for rehabilitating ambassadorial residences because there is no predictable annual funding for rehabilitating State-only occupied assets.
More than a Quarter of Properties in “Poor Condition”
— More than a quarter of the State Department’s overseas buildings and other real properties are in poor condition by State’s condition standards, including almost 400 buildings and other assets that State considers critical to its mission.
FY21 $100 Million Request: Specific But Not Really
—According to OBO officials, they outlined specific funding requested for maintenance and repair, including minor construction and improvement, in an appendix to State’s congressional budget requests. State’s fiscal year 2021 budget requested $100 million to address DM&R for State’s non–cost shared facilities. However, OBO officials noted that this funding was for the minor construction and improvement program (or modernization budget), which does not specifically address the DM&R backlog.
GAO made five recommendations to the State Department:
The Secretary of State should ensure that that the Director of OBO reassess State’s acceptable condition standard for all asset types and mission dependencies, to include whether mission criticality justifies a different standard among assets. (Recommendation 1)
The Secretary of State should ensure that the Director of OBO incorporates the mission criticality of its assets when deciding how to target maintenance and repair investments. (Recommendation 2)
The Secretary of State should ensure that the Director of OBO monitors posts’ completion of annual condition assessments that use a standardized inspection methodology, so that State has complete and consistent data to address its deferred maintenance and repair backlog. (Recommendation 3)
The Secretary of State should ensure that the Director of OBO develops a plan to address State’s deferred maintenance and repair backlog, and specifically identifies the funding and time frames needed to reduce it in congressional budget requests, related reports to decision makers, or both. (Recommendation 4)
The Secretary of State should ensure that the Director of OBO employs models for predicting the outcome of investments, analyzing tradeoffs, and optimizing among competing investments. (Recommendation 5)
The HAVANA Act of 2021 or the Helping American Victims Afflicted by Neurological Attacks Act of 2021 passed/agreed to in Senate without amendment by Unanimous Consent on 6/7/21.
Summary: This bill specifically authorizes the Central Intelligence Agency, the Department of State, and other agencies to provide payments to agency personnel who incur brain injuries from hostilities while on assignment.
Specifically, the bill allows agency personnel and their families to receive payments for brain injuries that are incurred (1) during a period of assignment to a foreign or domestic duty station; (2) in connection with war, insurgency, hostile acts, terrorist activity, or other agency-designated incidents; and (3) not as the result of willful misconduct.
The bill’s authority applies to injuries incurred before, on, or after the date of the bill’s enactment. Agencies must submit classified reports on the bill’s implementation, including the number of payments made and the amount of each payment.
Since 2016, some intelligence, diplomatic, and other governmental personnel have reported experiencing unusual cognitive and neurological impairments while on assignment (particularly abroad), the source of which is currently under investigation. Symptoms were first reported by personnel stationed in Cuba and have since been collectively referred to as Havana Syndrome.
Section 3 of S.1828 provides the authority to pay personnel of the Department of State for certain injuries of the brain.
The Act requires mandatory classified reporting for a budget/spend plan for the use of the authority detailing total amount expended, number of covered employees, dependents and individuals to whom payments were made, and amount provided. It also requires an assessment of “whether additional authorities are required to ensure that covered dependents, covered employees and covered individuals can receive payments for qualifying injuries, such as a qualifying injury to the back or heart.”
Similarly, Section 3 of H.R.3356 provides the authority to pay State Department personnel for certain injuries.
The House version also provides the following:
“(A) IN GENERAL.—The Secretary or other agency head described in paragraph (1) that provides payment under such paragraph shall prescribe regulations to carry out this subsection.
“(B) ELEMENTS.—The regulations prescribed under subparagraph (A) shall include regulations detailing fair and equitable criteria for payment under paragraph (1).
“(4) NO EFFECT ON OTHER BENEFITS.—Payments made under paragraph (1) are supplemental to any other benefit furnished by the United States Government for which a covered dependent, dependent of a former employee, covered employee, former employee, or covered individual is entitled, and the receipt of such payments may not affect the eligibility of such a person to any other benefit furnished by the United States Government.”.
GovTrack currently has a 38% chance for this bill to get enacted. It needs to pass the Committee, the House, then the Senate (bill needs to be in identical form) and then signed by the President to become law.
We have spoken to our effort on behalf of SIVs, so-called Special Immigrant Visa applicants. You ask why we didn’t – why we haven’t done more. Let me just offer a bit of context. Through the course of this program, the United States has resettled, brought to their new lives, more than 75,000 Afghans who have in various ways assisted the United States Government over the years. The Special Immigrant Visa program provides – well, as it was initially conceived and legislated by Congress, it provides a visa to the United States. When this administration recognized that the security situation was becoming – was quickly evolving, many weeks ago we launched Operation Allies Refuge. This was something that was never envisioned in any SIV program, including the one we had in Afghanistan or the one we had in Iraq; that is to say, a gargantuan U.S. effort not only to process, adjudicate, and to grant visas to these so-called special immigrants but to actually bring them to the United States with a massive airlift operation.
It’s been through that operation that 2,000 Afghans have been able to reach the United States. Most of those Afghans have now been able to start their new lives through resettlement agencies. Just – it was a month or so ago we recognized that the need could be even greater for Afghans who are vulnerable, who may be at risk. That is precisely why we initiated a so-called Priority 2, P-2 refugee status program that went beyond – beyond the statutory definitions of who could apply for and be eligible for the SIV program, to include those brave Afghans who not only have helped the U.S. Government over the years but have helped the American people.
We know that there are other vulnerable Afghans – some for the work they have done, some for the things they have said, some for nothing more than their gender – and we are also working and planning to bring as many as we can to safety.
Right now, we are, again, in the process of re-establishing control over the airport. The military has been able to surge resources and will surge additional resources to the theater to allow us to bring, on a large scale, a number of these Afghans who will be able to start new lives in the United States or who will be able to reach safety elsewhere in the world. We are committed to that. We have been flexible. We have been ambitious in our effort to do just that.
Note that FY2020 National Defense AuthorizationAct (NDAA) amended the SIV program for Afghanistan and put a limit to the total number of principal Afghan applicants who could be granted a special immigrant visas after December 19, 2012 originally at 22,500. The Congressional Research Service indicates that the State Department has taken the position that the total number of SIVs available after December 19, 2014 is actually 26,500. That number matched the data provided by State to State/OIG when it reviewed the Afghan SIV program in 2020.
CRS also says that the FY2021 CAA, enacted on December 27, 2020, “rewrote the existing statutory visa cap language (which provided 22,500 visas) to authorize a new total of 26,500, an increase of 4,000 visas.”
According to the US Embassy Kabul Consular Section cited by State/OIG, it is common for an SIV applicant to have approximately five derivative family members (one spouse and four children) who qualify to receive SIVs. If State has already issued 75,000 SIVs, approximately 15,000 principal applicants were already issued visas. Which means, there are 11,000 visas for principal applicants still available; after that, Congress will need to fix the cap if it wants additional visas to be issued.
Sources: State/OIG/Review of the Afghan SIV 2020 and CRS Report June 21, 2021
On June 1, 2021, State/OIG published online its Semiannual Report to the Congress (October 1, 2020 to March 31, 2021).
On accountability and independence, the OIG reports:
“OIG did not encounter any attempts to interfere with Inspector General independence—whether through budgetary constraints designed to limit its capabilities, resistance or objection to oversight activities, or restrictions on or significant delays in access to information—for the reporting period from October 1, 2020, through March 31, 2021.
OIG encountered a three-month delay in scheduling an interview with Secretary Michael Pompeo as part of its review of allegations of misuse of Department resources. OIG initially requested an interview on September 11, 2020, but then-Secretary Pompeo did not agree to the interview (which was scheduled for December 23, 2020) until December 16, 2020.
During a mandated review of the Bureau of International Narcotics and Law Enforcement Affairs’ (INL) reporting related to National Drug Control Program activities, INL was not sufficiently responsive to OIG’s requests for information. At the conclusion of fieldwork, OIG determined that it could not complete its review because it did not have sufficient, appropriate evidence to be able to draw a conclusion about whether the Department’s management assertions in its Accounting and Authentication of FY 2020 Drug Control Funds and Related Performance Report were fairly stated.”
The Office of Evaluations and Special Projects (ESP):
“From October 1, 2020, to March 31, 2021, ESP issued one unclassified report on Department programs and operations. Management Assistance Report: Representational Travel by the Spouse of the Secretary of State (ESP-21-01, 12/2020) In 2019, OIG received a whistleblower complaint related to travel by the spouse of the Secretary of State that the Department considered official travel. To investigate this complaint, OIG requested and reviewed documentation related to official representational family travel by Susan Pompeo from April 2018 to April 2020. Generally, Department policy permits such travel by relatives of Department officials for appropriate representational purposes. However, both Department guidance and principles of internal control require documentation of both the official purpose and the approval of the travel. The Secretary’s spouse took eight trips that were declared official from April 2018 to April 2020. Of the eight trips, OIG found documentation of an authorized purpose for all eight trips, but only found written approval for two of the trips.
OIG recommended that the Office of the Secretary seek and gain written approval for all representational travel, and that the Under Secretary for Management or other authorizing official document in writing the approval for all representational trips by any family members. The Department concurred with these recommendations.”
ESP Substantiation of Allegations of Non-Criminal Misconduct Involving Senior Government Employees, 10/1/2020–3/31/2021
— A case closed in January 2021 involved a U.S. Ambassador. “OIG found that the official committed several violations of Department policy, including involving a household member in official duties, using personal social media accounts for official activities, and failing to comply with 3 FAM 1214.1 “Leadership and Management Principles for Department Employees” and “The Standards of Ethical Conduct for Employees of the Executive Branch,” issued by the U.S. Office of Government Ethics. OIG referred its findings to the Under Secretary for Political Affairs and the Bureau of African Affairs. Shortly after OIG issued its findings, the Ambassador left office as part of the presidential transition.”
— A case closed in March 2021 involved a USAGM Senior Advisor. “OIG found that the official violated Federal recordkeeping regulations by instructing employees to communicate with her on official matters using a mobile messaging application and then deleting the messages without properly preserving them in agency recordkeeping systems. OIG referred its findings to USAGM, which reviewed the matter and notified the National Archives and Records Administration of the improper disposal of Federal records.”
The Office of Investigations conducts worldwide investigations of criminal, civil, and administrative misconduct related to programs and operations of the Department. During the reporting period, OIG conducted a number of investigations involving senior Government employees.
Investigations Involving Senior Government Employees Where Allegations Were Substantiated, 10/1/2020–3/31/2021
— On June 12, 2015, OIG opened an investigation based on information that a senior Administrative Officer and two of her subordinates violated procurement rules and regulations related to the use of U.S. Government purchase cards. The investigation substantiated the allegation and revealed the officer instructed her employees to engage in the practice of split purchasing. As there was no violation of criminal law, the case was not referred to DOJ. However, the officer resigned from the Department while under investigation. The case was closed in January 2021.
— OnOctober 28, 2019, OIG opened an investigation based on information that the senior advisor to a U.S. Ambassador serving overseas may have received supplemental compensation from a private company while serving as a U.S. Government employee. The investigation revealed the advisor transmitted Sensitive But Unclassified information to non-U.S. Government personnel and received gifts of airfare and a gift card valued over $8,000 from a private business entity. As there was no violation of criminal law, the case was not referred to DOJ. However, the officer resigned from the Department while under investigation. The case was closed in February 2021.
— On May 29, 2019, OIG opened an investigation regarding multiple allegations of misconduct by a U.S. Ambassador. The investigation revealed the Ambassador inappropriately used his position to try to influence the move of a professional sporting event to a different venue. He also knowingly allowed his special assistant to conduct personal matters that fell outside of her scope of official duties, and while using non-Department email accounts, he did not courtesy copy or forward to his official Department email account at least 62 official emails in the span of approximately 6 months.As there was no violation of criminal law, the case was not referred to DOJ. However, the Ambassador resigned from the Department while under investigation. The case was closed in February 2021.
Under notable resolutions, State/OIG/INV’s list includes the following:
— In March 2021, two Foreign Service Officers agreed to pay more than $13,033 to the U.S. Government to resolve issues related to fraud allegations regarding Department travel vouchers. OIG special agents determined that the married couple engaged in a scheme to defraud the Department by filing four travel vouchers that claimed lodging expenses they were not entitled to under Federal Travel Regulations. The fraud was committed from approximately September 2014 through April 2019. OIG’s Office of General Counsel coordinated the Program Fraud Civil Remedies Act action that resulted in the settlement.
–In October 2020, three individuals were indicted for using a business email compromise scheme, or BEC, to defraud the Department. OIG and Federal Bureau of Investigation (FBI) special agents determined the individuals tricked the Department and a nonprofit agency into wiring at least $575,000 into bank accounts they controlled for the purpose of enriching themselves and their co-conspirators.
Under employee misconduct:
— In November 2020, former Seabee Martin Huizar was sentenced to 109 months’ incarceration and ordered to pay $40,100 in fines and $10,000 in restitution, along with serving a 10-year term of supervised release, for transportation of images of child sexual abuse on his phones and tablet computer. The OIG Special Assistant United States Attorney assigned to the Eastern District of Virginia prosecuted the case.
Employees’ concerns regarding the assignment restrictions process were plentiful: it was unfair, lacked transparency and was based on ethnic origin or family heritage. Our advocacy to the State Department on the issue began in 2009 and continued in earnest through 2016.
The case was framed by input from countless numbers of employees who came to us expressing real frustration, disillusionment and anger over the lack of transparency and accountability in the process. In some cases, the department had prioritized hiring these officers because of their language skills, only to turn around and preclude them from using those valued language skills overseas.
While assignment restrictions affect many State department employees of different backgrounds, we accumulated substantial anecdotal evidence that it has disproportionately affected employees of AAPI descent. Our data suggested assignment restrictions were levied with race as a factor, with disregard for mitigating circumstances and even based on incorrect facts.
According to the authors, the efforts to confront these issues went back many years: “Mariju Bofill first raised the issue with the Secretary of State in 2009, after consultations with the department’s legal advisor, and continued to raise it during the following three years. Cecilia Choi took the baton in 2012, working with the Bureau of Diplomatic Security to try to come to a fair solution. In 2013, The Washington Post featured an article on the subject, “At the State Department, Diversity Can Count Against You,” highlighting the perspectives of several Foreign Service officers.”
In May 2017, AFSA issued guidance on new provisions governing assignment limitations as negotiated with the State Department; these were reportedly implemented on October 21, 2017 and can be found in 12 FAM 233.5. The latest update were done on June 24, 2020:
Per FAM, assignment restrictions are conditions placed on a security clearance. They are used to prevent potential targeting and harassment by foreign intelligence services as well as to lessen foreign influence and/or foreign preference security concerns; for example, if an employee and/or his or her close family members maintain citizenship or dual citizenship with that country or have substantial financial interests or foreign contacts there. Foreign influence and preference are two of the U.S. Government’s Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.
Assignment restrictions may be determined when the initial clearance determination is made, during periodic reinvestigation, or when an individual’s personal situation changes; i.e., marriage, cohabitation, etc. (see 12 FAM 270). An individual may be restricted from permanent assignment to a particular country or countries, or in some cases, a desk and/or program where that country or countries are the primary focus. Desks or other positions may present vulnerabilities for targeting when there is frequent official contact with foreign individuals. Individuals with an assignment restriction to a country may not serve temporary duty (TDY) in that country for more than a total of 60 days during any 365 day period.
The 2020 FAM update allows for a review within 30 days of receiving the assignment restrictions at an employee’s request, on exceptional circumstances the employee/applicant may also request an additional 15 days review, and there us a review on the assignment restrictions by DS/SI/PSS each time an individual’s continued eligibility for access to classified information is re-adjudicated, typically every five years.
The thing that’s clear in the regs is that the initial assignment restriction is conducted by Diplomatic Security. The reviewer is also Diplomatic Security. After that review, the decision by DS/DSS becomes final. There is no appeal authority above Diplomatic Security. The State Department’s personnel chief, yes, the DGHR said in a congressional hearing that she “does not know enough about the process to answer the question” (see video below).
The updated regs also do not indicate who tracks, and keep the data about these assignment restrictions. The report on Politico points out that the State Department is required by law to provide to Congress “the number and nature of assignment restrictions and preclusions for the previous three years”. This was part of the Department of State Authorities Act, Fiscal Year 2017 dated December 16, 2016 (see 22 USC 2734c: Employee assignment restrictions). Which means Tillerson in 2017 or Pompeo in 2018 would have been required to submit preclusion data to Congress dating back at least three years. And yet, the Politico report said that a State Department spokesperson was unable to say how many diplomats across the department are currently subject to restrictions.
Well, now. So either the State Department ignored a congressional reporting requirement or the information is available but in a lock box? Who wants to share?
Congressional representatives like Andy Kim of NJ who previously worked for the State Department has publicly voiced a demand that “we fix this problem.”
In 2019 I was sworn-in as the then only Korean American in Congress. Now I sit on Foreign Affairs Committee with oversight over StateDept. I will now demand that we fix this problem, working with @TedLieu and others. And we will press for more fixes across our Gov and nation(END) pic.twitter.com/YPfhA4tHoE
Below is the top official in charged of personnel including assignments at the State Department told by the congressman from California to “Maybe you might want to find more about this process since you’re Director General of the Foreign Service and Director of Global Talent and this is affecting your State Department employees … “
A section in the Foreign Affairs Manual was added on May 28, 2020 (see 3 FAM 3660 Compensation for Certain Injuries). It is based on Public Law 116-94, Division J, Title IX, section 901, where:
“Congress allows the Secretary of State to pay benefits to certain Department of State personnel under chief of mission authority who incurred a qualifying injury and are receiving benefits under section 8105 or 8106 of Title 5, United States Code. It further authorizes the Secretary of State to pay for the costs of diagnosing and treating a qualifying injury of a covered employee, as defined in 3 FAM 3662, that are not otherwise covered by chapter 81 of Title 5, United States Code (the Federal Employees Compensation Act (FECA)) or other provision of Federal law; and to pay the costs of diagnosing and treating a qualifying injury of a covered individual or covered dependent, as defined in 3 FAM 3662, that are not otherwise covered by Federal law.”
3 FAM 3660 also includes definitions on who are covered employees, or covered individuals, what’s a “qualifying injury”, and the description of recognized and eligible qualifying injuries as of June 26, 2018.
3 FAM 3662 DEFINITIONS (CT:PER-994; 05-28-2020)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps-USDA)
(Applies to Foreign Service and Civil Service Employees)
Qualifying injury: The term “qualifying injury” means the following:
(1) With respect to a covered dependent, an injury listed in (3) below incurred
(a) during a period in which a covered dependent is accompanying an employee to an assigned duty station in the Republic of Cuba, the People’s Republic of China, or another foreign country designated by the Secretary of State under 3 FAM 3666;
(b) in connection with war, insurgency, hostile act, terrorist activity, or other incident designated by the Secretary of State; and
(c) that was not the result of the willful misconduct of the covered dependent.
(2) With respect to a covered employee or a covered individual, an injury listed in (3) below incurred
(a) during a period of assignment to a duty station in the Republic of Cuba, the People’s Republic of China, or another foreign country designated by the Secretary of State under 3 FAM 3666;
(b) in connection with war, insurgency, hostile act, terrorist activity, or other incident designated by the Secretary of State; and
(c) that was not the result of the willful misconduct of the covered employee or covered individual.
(3) Recognized and eligible qualifying injuries, as of 26 June 2018, based on the University of Pennsylvania-identified criteria, include the following:
sharp localized ear pain;
dull unilateral headache;
tinnitus in one ear;
visual focusing issues;
cognitive problems, including difficulty with concentration, working memory, and attention;
high-frequency unilateral hearing loss;
and imbalance walking.
3 FAM 3666 SECRETARY OF STATE COUNTRY DESIGNATION (CT:PER-994; 05-28-2020)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps-USDA)
(Applies to Foreign Service and Civil Service Employees)
a. Under Public Law 116-94, Division J, Title IX, section 901, the Secretary of State may designate another foreign country for the purposes of this section, provided that the Secretary reports such designation to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives, and includes in such report a rationale for each such designation.
b. The Secretary of State may not designate an added foreign country or duty station for the purposes of providing additional monetary benefit pursuant to 3 FAM 3663 or 3 FAM 3664 for a qualifying injury to covered employees, covered dependents, or covered individuals under this section unless the Secretary of State
(1) provides to the Committees on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives 30 days’ notice of the designation of a particular additional country or duty station and the rationale for such an addition; and
(2) provides no such additional monetary benefit pursuant to 3 FAM 3663 or 3 FAM 3664 to covered employees, covered dependents, or covered individuals for a qualifying injury until the 30-day notice period expires, unless there is written agreement by both the Chair and Ranking Members of both the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives that there is no objection to proceeding with provision of such monetary benefit compensation in less than 30 days.