@StateDept Updated Assignment Restrictions Regs in 2020, Also Where’s the Preclusion Data?

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Last week, Politico published a piece about hundreds of people of color at the State Department handed “assignment restrictions” due to concerns over split loyalties or being susceptible to foreign influence. See Foreigners in their own country: Asian Americans at State Department confront discrimination. In 2017, The Foreign Service Journal published In Pursuit of Transparency in Assignment Restriction Policies by FSOs Christina T. Le and Thomas T. Wong who at that time were the current and past presidents of the Asian American Foreign Affairs Association (AAFAA). Excerpt below:

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.”

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 … “

 


 

 

Snapshot: Qualifying Injury Under 3 FAM 3660 – Compensation For Certain Injuries

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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;
        • vertigo,
        • visual focusing issues;
        • disorientation;
        • nausea;
        • extreme fatigue;
        • cognitive problems, including difficulty with concentration, working memory, and attention;
        • recurrent headache;
        • high-frequency unilateral hearing loss;
        • sleep disturbance;
        • 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.


 

 

Trump’s New E.O. Launches Wrecking Ball at the Civil Service

 

On October 21, Trump issued an Executive Order on Creating Schedule F In The Excepted Service:

“Pursuant to my authority under section 3302(1) of title 5, United States Code, I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures. Placing these positions in the excepted service will mitigate undue limitations on their selection. This action will also give agencies greater ability and discretion to assess critical qualities in applicants to fill these positions, such as work ethic, judgment, and ability to meet the particular needs of the agency. These are all qualities individuals should have before wielding the authority inherent in their prospective positions, and agencies should be able to assess candidates without proceeding through complicated and elaborate competitive service processes or rating procedures that do not necessarily reflect their particular needs.”
[..]
Schedule F. Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition shall be listed in Schedule F. In appointing an individual to a position in Schedule F, each agency shall follow the principle of veteran preference as far as administratively feasible.”

FedWeek notes that the “estimates of the potential number of employees affected range from the tens of thousands to 100,000 or more.”
The Partnership for Public Service released a statement that says in part ““Our civil service is the envy of the world and must be strengthened and enhanced. Without strong safeguards, the risk of hiring and firing for political reasons is high. The president’s executive order creating a new Schedule F job classification is deeply troubling and has the potential to impact wide swaths of federal employees over the next few months without engagement from Congress, civil servants and other key stakeholders.”
On October 27, 2020, H.R. 8687: To nullify the Executive Order entitled “Executive Order on Creating Schedule F In The Excepted Service”, and for other purposes was introduced in Congress. Of course, this bill must be passed by both the House and Senate in identical form and then signed by the President to become law.
The new E.O. which amends the Civil Service rule, requires a preliminary review of positions covered within 90 days of the issuance of the order, that places the due date on January 19, 2020, a day before the presidential inauguration of 2021. A complete review is due within 210 days, which is August 19, 2021. Agency heads will determine which positions should be placed in Schedule F category:

Sec. 5. Agency Actions. (a) Each head of an executive agency (as defined in section 105 of title 5, United States Code, but excluding the Government Accountability Office) shall conduct, within 90 days of the date of this order, a preliminary review of agency positions covered by subchapter II of chapter 75 of title 5, United States Code, and shall conduct a complete review of such positions within 210 days of the date of this order. Thereafter, each agency head shall conduct a review of agency positions covered by subchapter II of chapter 75 of title 5, United States Code, on at least an annual basis. Following such reviews each agency head shall:

(i) for positions not excepted from the competitive service by statute, petition the Director to place in Schedule F any such competitive service, Schedule A, Schedule B, or Schedule D positions within the agency that the agency head determines to be of a confidential, policy-determining, policy-making, or policy-advocating character and that are not normally subject to change as a result of a Presidential transition. Any such petition shall include a written explanation documenting the basis for the agency head’s determination that such position should be placed in Schedule F; and

(ii) for positions excepted from the competitive service by statute, determine which such positions are of a confidential, policy-determining, policy-making, or policy-advocating character and are not normally subject to change as a result of a Presidential transition. The agency head shall publish this determination in the Federal Register. Such positions shall be considered Schedule F positions for the purposes of agency actions under sections 5(d) and 6 of this order.
[…]
(b) The requirements set forth in subsection (a) of this section shall apply to currently existing positions and newly created positions.

(c) When conducting the review required by subsection (a) of this section, each agency head should give particular consideration to the appropriateness of either petitioning the Director to place in Schedule F or including in the determination published in the Federal Register, as applicable, positions whose duties include the following:

(i) substantive participation in the advocacy for or development or formulation of policy, especially:

(A) substantive participation in the development or drafting of regulations and guidance; or

(B) substantive policy-related work in an agency or agency component that primarily focuses on policy;

(ii) the supervision of attorneys;

(iii) substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law;

(iv) viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations generally covered by deliberative process privilege and either:

(A) directly reporting to or regularly working with an individual appointed by either the President or an agency head who is paid at a rate not less than that earned by employees at Grade 13 of the General Schedule; or

(B) working in the agency or agency component executive secretariat (or equivalent); or

(v) conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5, United States Code.

(d) The Director shall promptly determine whether to grant any petition under subsection (a) of this section. Not later than December 31 of each year, the Director shall report to the President, through the Director of the Office of Management and Budget and the Assistant to the President for Domestic Policy, concerning the number of petitions granted and denied for that year for each agency.

It looks like they expect that this would be challenged in court:

(d) If any provision of this order, or the application of any provision to any person or circumstances, is held to be invalid, the remainder of this order and the application of any of its other provisions to any other persons or circumstances shall not be affected thereby.

On October 23, 2020, OPM issued a memo with Instructions on Implementing Schedule F.

This Executive Order excepts from the competitive service positions that are of a confidential, policy-determining, policy-making, or policy-advocating character, typically filled by individuals not normally subject to replacement or change as a result of a Presidential transition. As a result of this Executive Order, such positions will be rescheduled into the newly created Schedule F and exempt from both the competitive hiring rules as well as the adverse action procedures set forth in chapter 75 of title 5 of the United States Code.
[..]
The Executive Order directs each agency head to review positions within his or her agency and identify those positions appropriately categorized as confidential, policy-determining, policy-making, or policy-advocating, and then petition OPM to place those positions in Schedule F. Agencies have 90 days to conduct a preliminary review of positions and submit petitions, with an additional 120 days to finalize that review and submit any remaining petitions.

If Biden wins, how quickly do you think this E.O. gets rescinded?
If there is a Trump second term, we expect that the wrecking ball now directed at the Civil Service will soon extend to all parts of the federal service.
Go VOTE!

Burn Bag: Sharing COVID-Positive Employees’ Information May be Prohibited Under ADA and EEO Regulations

Via Burn Bag:
“The Department has numerous required trainings for supervisors.  Yet, some continue to disregard them.  This behavior can create costly lessons for the Department, especially when it touches upon ADA and EEO regulations.
A supervisor recently emailed several individuals the full name of an employee – from a different team/office – who tested positive for COVID.  Our understanding is that the supervisor should have omitted the employee’s name per federal ADA/EEO regulations.  We do not know if the employee is aware of this supervisor’s actions, but based on previous experiences, this supervisor will retaliate if we inform the employee, EX, or S/OCR.
 Since we do not have an anonymous EEO reporting process, we ask the Department institute a mandatory training for all Bureau and posts for all supervisors, FSOs, FSSs, CSs, EFMs, contractors, detailees, and others to learn about federal EEO/ADA regulations for COVID-related matters.
 Returning to this supervisor, s/he has averaged approximately one EEO violation per month towards various individuals (with his/her leadership’s knowledge).  Yet the Department allows this supervisor to remain.  We’d like to remind the Department that it has the authority to proactively manage supervisors without waiting for numerous costly and time-consuming ADA/EEO complaints.  Employees (on their personal time) are also allowed to inform their Senators and Congressmen of the Department’s compliance with ADA/EEO regulations.”

Addendum:

“We understand that S/OCR will soon be drafting the 2020 MD-715, an annual status report of the Department’s EEO/ADA programs, which should include COVID-related actions.  We are curious to learn how it may acknowledge that 1) supervisor(s) may be in ongoing non-compliance with EEO/ADA regulations, 2) the Department appears to maintain supervisors in their same roles and 3) this continued non-compliance directly hurts retention and advancement of employees with disabilities.”

 

White Cat on Grass Field by Pixabay

HFAC Chairman Calls Out @StateDept For ‘Temper Tantrum’ Over Canceled Hill Briefings

 

@StateDept Spent Millions on AutoInjectors to Counteract Nerve Agent Exposure, Guess What Happened?

WaPo’s Jon Swaine has an investigative piece on a $120 million State Department contract on a treatment for nerve agent poisoning. According to the report, WaPo has “obtained internal company records, reviewed emails from Emergent staffers and government officials, and interviewed nine people involved in making, selling or buying the Trobigard injectors.”
WARNING! This will get you mad.

“In June 2017, a director of regulatory affairs at the government contractor Emergent BioSolutions told colleagues that she objected to claims the company was making in a brochure for one of its newer products: a drug injector for victims of exposure to nerve agents.

“Functionality testing has not been successful in this device,” Brenda Wolling wrote in comments obtained by The Washington Post. Regarding a claim that the injector was designed to withstand “challenging operational and logistical conditions,” she wrote, “No testing ever conducted.” Even to describe the product as a “treatment of nerve agent poisoning,” Wolling wrote, “implies that we have efficacy data showing it works.”

Three months later, the Trump administration awarded Emergent a $20 million no-bid contract to supply those very injectors to the State Department. The firm later received a second contract, worth up to $100 million, to supply the agency with more of the injectors — sold under the name Trobigard — and related treatments.”

Apparently, the State Department told Emergent that it had obtained a legal opinion from the FDA’s general counsel saying the department could buy Trobigard for use by U.S. diplomats overseas, citing a company record. The report says, the company “has not sought approval from the U.S. Food and Drug Administration — a circumstance that bars the product’s sale in the United States.”

“By September 2017, State Department officials were increasingly alarmed at chemical weapons use by the Syrian regime and the Islamic State and were anxious to boost protections for U.S. diplomats. The agency gave Emergent a one-year contract worth $20.5 million to supply auto-injectors. Under the deal, Emergent delivered 456,845 auto-injectors — enough to provide several for each of 58,000 Foreign Service officers and local employees overseas.

No bid competition was held, on the grounds that there was “unusual and compelling urgency” after Pfizer’s production halt, according to contract records. The injectors were needed to protect officials who “operate in countries with active and/or assumed chemical [redacted] programs,” the records show.
[…]
Emergent’s 2017 deal with the State Department entailed a sharp increase in spending by the department above earlier plans. In August 2015, the department had been preparing to pay Meridian $750,000 per year for five years to replace expiring devices, according to records of an abandoned deal.”

The company-funded study in the Netherlands tested the drugs on guinea pigs exposed to sarin gas. That’s right guinea pigs.

“Six weeks after the State Department signed the deal, Emergent’s first study of Trobigard’s drugs was completed. The company-funded study in the Netherlands tested the drugs on guinea pigs exposed to sarin gas and recorded positive findings. As they published their work in a scientific journal, the study’s authors warned that the results “cannot be directly extrapolated to the human situation.”

Can the embattled OIG still take this on as a special project? Can House Foreign Affairs (HFAC) or House Oversight Committee (HORC) take a look?

“In July, Emergent leaders ordered that Trobigard sales materials be scrapped and that the device be moved to a portion of the company’s website that lists products in development, the company confirmed. They also told staffer to make sure all future sales materials for Trobigard were approved by the company’s medical, legal and regulatory departments.

Emergent put together evidence that all injectors bought by the State Department were safe, former employees said. Government officials ultimately agreed. In September 2019, the State Department authorized the payment of a $10 million contract installment to Emergent.”

You need to read this in full. A State Department “no comment” is not acceptable.

Extracted data below from SAM.gov, the new fedbiz, with links to the contracts. Are there more that we’ve missed?

EMERGENT COUNTERMEASURES INTERNATIONAL LTD

  • Unique Entity ID (DUNS)220984617
  • CAGE CodeU1C03
  • AddressBUILDING 3, LONDON, W4 5YA

Registration

  • Expiration Date Jun 23, 2021
  • Purpose of Registration All Awards
  • Debt Subject to Offset  No

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@StateDept Skirts Thresholds in Arms Transfers to Saudi Arabia and UAE, Avoids Congressional Notifications

 

On August 10, a Senior State Department official held an on-background briefing on State/OIG’s  still unreleased report of the May 2019 Emergency Certification for Arms Sales to Saudi Arabia, UAE, and Jordan.
The State Department also released a statement Inspector General Confirms No Wrongdoing in Emergency Arms Sales to Counter Iran, The Secretary’s “Emergency Certification Was Properly Executed” and “Complied with the Requirements” of Law.
The cover memo to Pol-Mil that accompanied the IG report dated August 10 says that “OIG will distribute a copy of this report to Congress and post a redacted version of this report on OIG’s public website within 2 business days.” Then the agency basically Bill Barred the IG report, putting a fine spin on the IG report, most likely expecting a couple of days of most favorable headlines.
State/OIG posted the report online on Tuesday, August 11. But nice try by Foggy Bottom’s spin-doctors. Now folks got to read the actual report though a redacted one. The IG report says that “In a memorandum dated July 27, 2020, the Department asserted that its requested redactions were necessary to protect executive branch confidentiality interests and, further, stated its position that the Secretary “has the authority to direct the OIG not to disclose privileged information, and the Department may do so without any final assertion of executive privilege.”
Well, not only redactions from the public report, but a more extensive redactions from the classified report that they also want to withhold from the Congress:

“On August 5, 2020, the Department provided its redactions to OIG’s report. Although the Department withheld relatively little information in the unclassified portion of the report,4 it withheld significant information in the classified annex necessary to understand OIG’s finding and recommendation.”
[…]
“Department asserted that the redactions made to the classified annex should be withheld from Congress because the underlying information implicates “executive branch confidentiality interests, including executive privilege.”

But see, if the State Department could assert any redaction for State/OIG’s work products, including in the classified annex to be withheld from Congress, what’s to keep Pompeo from asserting the same thing over IG investigations related to him, his wife, or any other senior officials?
It’s high time for the Council of the Inspectors General on Integrity and Efficiency (CIGIE) to go in and take a look at the State Department given the circumstances of the Linick firing, the abrupt resignations of the acting State OIG, as well as the dismissal of other IGs in multiple agencies. Starting with the State Department, CIGIE can then “address the integrity, economy, and effectiveness issues that transcend individual Government agencies.”
Summary of Review of Arms Transfers

“In response to congressional requests, OIG reviewed the Department of State’s (Department) role in arms transfers to the Kingdom of Saudi Arabia and the United Arab Emirates following the Secretary’s May 2019 certification that an emergency existed under Section 36 of the Arms Export Control Act (AECA). 2 The Secretary’s emergency certification3 waived congressional review requirements for 22 arms transfer cases to the Kingdom of Saudi Arabia, the United Arab Emirates, and the Hashemite Kingdom of Jordan,4 with a total value of approximately $8.1 billion. Congress had previously placed holds5 on 15 of the 22 arms transfer cases included in the May 2019 emergency certification. At the time the Secretary certified the emergency, 6 of the 15 cases had been held by Congress for more than a year. The held cases included at least $3.8 billion in precision-guided munitions (PGMs) 6 and related transfers. In explaining the decision to place the holds, members of Congress cited concerns about the actions of the Saudi-led Coalition (Coalition)7 in Yemen since 2015, including high rates of civilian casualties caused by Coalition airstrikes employing U.S.- supplied PGMs.

For this review, OIG examined the process and timeline associated with the Secretary’s May 2019 use of emergency authorities contained in the AECA. OIG also evaluated the Department’s implementation of measures designed to reduce the risk of civilian harm caused by Saudi-led Coalition military operations in Yemen and analyzed Department processes for reviewing arms transfers that do not require notification to Congress. 8 The AECA affords the President or Secretary considerable discretion in determining what constitutes an emergency. Moreover, the AECA does not define the term “emergency.” Accordingly, OIG did not evaluate whether the Iranian malign threats cited in the Secretary’s May 2019 certification and associated memorandum of justification constituted an emergency, nor did OIG make any assessment of the policy decisions underlying the arms transfers and the associated emergency.

OIG determined that the Secretary’s emergency certification was executed in accordance with the requirements of the AECA. However, OIG also found that the Department did not fully assess risks and implement mitigation measures to reduce civilian casualties and legal concerns associated with the transfer of PGMs included in the May 2019 emergency certification.9 In addition, OIG found the Department regularly approved arms transfers to Saudi Arabia and the United Arab Emirates that fell below AECA thresholds that trigger notification to Congress. These approvals included items such as PGM components on which Congress had placed holds in cases where the transfers reached the thresholds requiring congressional notification. However, the AECA does not require the Department to notify Congress if it approves transactions below those thresholds specified in the law. OIG issued one recommendation to the Department in a classified annex10 that accompanies this report.”

Wait, the “emergency certification was executed in accordance with the requirements of the AECA” but the OIG made no evaluation whether it was an emergency?  So, that’s something. Was this the same position taken by the former IG Steve Linick?
Per footnote:

Sections 36(b)(1), 36(c)(1), and 36(d)(1) of the Arms Export Control Act (22 U.S.C. § 2776) specify the types of arms transfers that must be notified to Congress. For example, transfers to countries other than NATO members, Japan, Australia, the Republic of Korea, Israel, or New Zealand of major defense equipment in excess of $14 million and non-major defense equipment in excess of $50 million must be notified to Congress.

4,221 Below-Threshold Arms Transfers Estimated at $11.2 Billion

OIG reviewed Department records on approved arms transfer cases involving Saudi Arabia and the United Arab Emirates that fell below the AECA thresholds that trigger notification to Congress.41 The records show the Department approved a total of 4,221 below-threshold arms transfers involving Saudi Arabia and the United Arab Emirates, with an estimated total value of $11.2 billion since January 2017. Components of PGMs were among the below-threshold transfers to Saudi Arabia and the United Arab Emirates approved during this period. Although the Department approved below-threshold transfers of PGM components as early as January 2017, the Under Secretary for Arms Control and International Security notified the Secretary in 2018 and 2019 that the Department intended to proceed with additional below-threshold approvals notwithstanding congressional holds on larger, above-threshold transfers of similar items.

So basically, the State Department did separate below threshold arms transfers to Saudi Arabia and UAE and avoided the required congressional notifications. Apparently, it will continue to do so despite congressional holds on similar items.
Looks like the State Department is daring Congress to do something about this. Here’s Pompeo also touting full “vindication.”

Also on August 11, Politico’s tireless reporter Nahal Toosi covering the State Department published a copy of the same OIG report, unredacted.
The unredacted document is posted here labeled in red “FOR INTERNAL U.S. GOVERNMENT/COMMITTEE USE ONLY – NOT FOR PUBLIC RELEASE MAY NOT BE FURTHER DISCLOSED WITHOUT CONSENT OF THE DEPARTMENT OF STATE.  Wow! Now you can see which part of the public report, the State Department asserted the public should not see (it has to do with the timeline of the emergency declaration and the bureau involved. And oh, money, money, money).

Former Congressman Mike Pompeo Rejects Congressional Subpoenas

 

 

 

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

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.