A Sexual Assault Reporting Process Foreign Service Members Deserve: If Not Now, When? Attn: @JohnKerry #16days

Posted: 2:13 am ET
Updated: 11:47 am PT

 

For victims/survivors of sexual assault, please see Sexual Assault in the Foreign Service — What To Do?  Consider below as a follow-up post to The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief.

The following is provided for general information that is intended, but not guaranteed, to be correct and up-to-date. Please do not consider the following legal advice as we are not lawyers; read the full necessary disclaimer below.

The Rape, Abuse & Incest National Network (RAINN) has the following sexual violence statistics:

  • On average, there are 288,820 victims (age 12 or older) of rape and sexual assault each year in the United States
  • Ages 12-34 are the highest risk years for rape and sexual assault
  • 90% of adult rape victims are female
  • 94% of women who are raped experience post-traumatic stress disorder (PTSD) symptoms during the two weeks following the rape.
  • 30% of women report PTSD symptoms 9 months after the rape.
  • 33% of women who are raped contemplate suicide.
  • The majority of perpetrators are someone known to the victim. Approximately 3 out of 4 of sexual assaults are committed by someone known to the victim

Rape notification rates differ depending on whether the victim know the perpetrator — those who knew a perpetrator were often less likely to report the crime, according to RAINN. A report (PDF) published by the National Sexual Violence Resource Center says that many survivors experience great difficulty in disclosing a sexual assault, especially when the perpetrator is known to the victim. The study is focused on rural America where “the propensity to not report may be reinforced by informal social codes that dictate privacy and maintaining family reputation. Sexual assaults in rural areas are mostly hidden crimes, hidden both intentionally and unintentionally by characteristics of a close-knit culture or an isolated lifestyle.”  Rural communities like small towns as places where “everybody knows everybody.” Sounds familiar?

A victim will have little anonymity. It means she, or a friend or family member is likely to be acquainted with or related to the perpetrator and that she may reencounter the perpetrator, even on a regular basis. Furthermore, “the closer the relationship between victim and assailant, the less likely the woman is to report the crime” (Hunter, Burns-Smith, Walsh, 1996). Studies have quite consistently pointed to the importance of the victim-offender relationship in affecting the propensity to report (Pollard, 1995; Ruback, 1993, Ruback & Ménard, 2001). In rural areas, law enforcement is likely to be part of the social network (Sims, 1988; Weisheit, Wells & Falcone, 1994; Weisheit, Wells & Falcome, 1995). This compounds the problem of reporting non-stranger sexual assaults.

We need to point out that in the Foreign Service, particularly overseas, Diplomatic Security law enforcement –as in rural communities and small towns — is part of the social network.

We should also note that a 2002 study by Lisak-Miller indicates (PDF) that a majority of the undetected rapists were repeat rapists. The repeat rapists averaged 5.8 rapes each.

According to the Callisto Project, which provides survivors with a confidential and secure way to create a time-stamped record of an assault in American campuses less than 10% of survivors will ever report their assault. Survivors wait an average of 11 months to report their assault to authorities and up to 90% of assaults are committed by repeat perpetrators.  Callisto’s CEO Jess Ladd told us that someday she would like to make available their product within other institutions (including companies and agencies) and to have a free version that anyone can use to store what happened.  But Callisto is not there yet.


Foreign Service Victims’ Concerns

Among the concerns we’ve heard so far are: 1) lack of clear reporting process, 2) confidentiality, 3) sexual assault response training, 4) potential conflict/undue pressure on investigators/managers who may be friends, colleague, or subordinates of perpetrators, and 5) lack of sexual assault data.

As we’re written here previously DOD and Peace Corps provide restricted and unrestricted reporting for victims, but that does not appear to be the case in the Foreign Service.  The State Department has over 275 posts in about 180 countries. The agency’s Diplomatic Security has Regional Security Offices in most locations but not all.  The State Department has previously told this blog that Diplomatic Security’s Office of Special Investigations  “receives and catalogues allegations and complaints. Allegations are neither categorized by location nor by alleged offense.” Which begs the question, how will the State Department know if it has sexual predators living among its various communities particularly overseas if it does not track these types of offenses?

Due to the lack of clear reporting process — except “report to RSO” or “contact OSI,” victims (as well as this blog) have no way to independently assess what reporting entails. We don’t know what kind of confidentiality is afforded the victims. Among other concerns and questions:

  • When we asked an FS assault victim if there is any good option for reporting sexual assault, we were told bluntly, “There is no good option. That’s what the predator knows.” 
  • When a victim reports to RSO overseas, we know that the RSO is supposed to contact State/OSI, but who else has access to that information?   Embassy/post leadership? Which officials in the embassy hierarchy?  Will the local Health Unit be informed? The CLO? State/MED? DS Command Center?  And will reporting victims be informed in advanced who their information will be shared with and the specific reason for sharing their information?
  • Do DS/OSI investigators travel to the location of the assault to investigate? Time and evidence collection are of the essence in sexual assault reporting.  If yes, how quickly?  Is there a have rapid response team? What should the victim do while waiting for the arrival of DS/OSI investigators? Not shower? Not go to work?
  • In countries where sexual assault victims are jailed for “promiscuity”, what is the State Department’s policy and recommendation to someone assaulted in a place where requesting a rape kit means going to jail? Would the Department work with local authorities to actually protect the victim from prosecution while DS investigates or would they just allow an already traumatized victim to get PNG’d and force them to pack up and leave?
  • How will the victim’s report be transmitted to DS/OSI? Via unclassified email? Via fax? Via phone? In the case of emails, what restricts that information from being forwarded with a click of a mouse, or the record being compromised intentionally or unintentionally?
  • How are victims’ reporting records protected?  What are the consequences for an employee/s with access to the victim’s report who shares it with an unauthorized entity or individual? What if it is shared with a colleague, or a friends, or a family member?
  • What kind of training do RSOs get to enable them to assist sexual assault victims overseas? “Does every single RSO in the world know a designated medical facility to process a rape kit?” Or for that matter, do Health Units at overseas posts even have this information available?
  • Victims who report to RSO or DS/OSI would like to know if the officers receiving their sexual assault reports represent the victims’ interests or State Department interests?
  • What support is available to victims? What can victims expect after they report their assaults?  What consequences will their reporting have on their medical clearance and assignments? What kind of work accommodation will be extended to them, if needed? Who will be their effective has the responsibility to advocate for them if they need to file workers’ comp from the Department of Labor?
  • How are perpetrators — who are not strangers — handled by the State Department?  This is not a hypothetical question.  An OIG investigation indicates that one security officer’s alleged sexual misconduct spanned 10 years and 7 posts.  In that case, the Department never attempted to remove the RSO from Department work environments where the RSO could potentially harm other employees.  DS agents investigating the 2011 allegations reported to DS management, in October 2011, that they had gathered “overwhelming evidence” of the RSO’s culpability.  These agents encountered resistance from senior Department and DS managers as they continued to investigate the RSO’s suspected misconduct in 2011. The OIG found that the managers in question had personal relationships with the RSO.  Folks who work at the State Department should ask questions like who are these senior Department and DS managers who allowed this to happen for 10 years and 7 posts?  Do they have other friends that they have similarly protected? What happened to the victims at 7 posts? What support were available to them?  What responsibility does the State Department have for not removing that employee despite overwhelming evidence of culpability?


FOIA Diplomatic Security’s sexual assault cables?

As readers here know, there is no official guidance in the FAM on reporting sexual assault in the Foreign Service (see The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief). We’ve requested the unclassified cables that were released by DS/OSI in 2015 and earlier this year on sexual assault reporting (15 State 71370;  15 State 79760;  and 16 STATE 5647all reportedly available at DS/OSI intranet). Since the information is unclassified and it could be useful information, we thought we could save time and money by requesting these through regular channels without having to FOIA them. We appreciate the efforts of those who were trying to obtain these for us through regular channels; we understand some folks worked through the weekend to attend to this requests. Thanks, folks!  Late Monday, we got word from a State Department spokesperson:

“Our thanks for your patience while the Department reviewed the practice of releasing State Department internal cables to members of the public or media. At this stage, a decision has been made that we are unable to release cables in this manner.”

Unbelievable! But it is what it is.  We need, therefore, to FOIA these unclassified cables. Given State’s FOIA processing record, we don’t expect to see these cables until 1-2-3-4 years down the road. We might be dead of heartbreak by then.


State/OIG Hotline and Office of Special Counsel

State/OIG has reiterated to us that that their office takes allegations of rape and sexual harassment very seriously and repeated the response they provided us back in August here.  Note that we have already been told that cases like this should not be reported to the OIG Hotline.  Read more here: Another Note About the Burn Bag–There’s No Easy Way of Doing This, Is There?.  State/OIG told us that Department employees who believe they have been subjected to whistleblower retaliation may contact OIG or the Office of Special Counsel (OSC). OIG can help the individual in understanding their rights and may investigate the retaliation, as well as alert the Department to any illegal reprisal.  State/OIG also said: “By no means do we want to discourage anyone from contacting our Hotline, but such a serious crime as a rape needs to be dealt with immediately and that’s why we recommend a call to local law enforcement.”

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US Mission New Zealand: USS Sampson Supports Kaikoura Earthquake Relief Efforts

Posted: 1:55  am ET

On November 13 we blogged that the US Embassy in Wellington issued an emergency message for New Zealand following a 7.8 earthquake and tsunami warning.  Citing New Zealand’s prime minister, John Key, the USG said that there were 1,200 tourists in Kaikoura — a town of about 3,800 — when the earthquake struck. The tourist town has reportedly been completely cut off from the rest of the island due to landslides and flooding.

On November 15, the US Embassy’s updated message says to direct anyone with friends or family in Kaikoura to make their way to the Takahanga Marae Welfare Centre to register with the Red Cross to be on the evacuation list. On November 16, the amphibious sealift vessel HMNZS Canterbury evacuated around 450 people out of Kaikoura to Christchurch. The NZ Defence Force said that the Royal New Zealand Air Force’s 3 Squadron evacuated another 60 people and delivered two tonnes of aid to Kaikoura, bringing to about 660 the total number of people evacuated from the quake-damaged town.  Surveillance aircraft from the United States Navy and the Japan Maritime Self-Defense Force also conducted surveys of quake-damaged areas, focusing particular attention on inland and railway routes.

Ships from Australia, Japan, Canada, Singapore including the the United States’ USS Sampson were already traveling to New Zealand to take part in the International Naval Review to celebrate the 75th anniversary of the Royal New Zealand Navy. When the earthquake struck, the ships were diverted from the planned celebration to assist in humanitarian efforts.

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Happy 241st Birthday and Thank You @USMC! #HappyBirthdayMarines

Posted: 6:19 pm PT

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US Embassy Kuwait: Construction Vehicle as Weapon Targets U.S. Military Personnel

Posted: 4:12 am ET

 

On October 9, the US Embassy in Kuwait issued a Security Message to US Citizens in Kuwait about a failed terrorist attack against deployed U.S. troops:

U.S. Embassy Kuwait confirms that what at first appeared to be a routine traffic accident involving three deployed U.S. military personnel on a Kuwaiti highway on Thursday, October 6, was in fact an attempted terrorist attack.  An Egyptian national deliberately rammed a construction vehicle into a passenger vehicle containing the three U.S. personnel.  The Egyptian driver was incapacitated by the impact.  The three U.S. military personnel, who were uninjured, pulled the driver from his vehicle, which had caught fire.  The perpetrator was subsequently hospitalized and is in Kuwaiti custody.

We are not aware of specific, credible threats against private U.S. citizens in Kuwait at this time.  Nonetheless, this attack serves as a reminder to maintain a high level of vigilance, and the Embassy advises U.S. citizens to review their personal security plans and remain alert to their surroundings at all times.

Read in full here.

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Photo of the Day: New Marine Corps Embassy Security Group (MCESG) Headquarters Open

Posted: 1:26 am ET

 

Via state.gov:

The dedication of the new Marine Corps Embassy Security Group (MCESG) headquarters building marked the completion of the MCESG headquarters compound, where Marine and Department of State personnel screen and train U.S. Marines for duty as Marine Security Guards at U.S. diplomatic posts abroad. The building is based on a U.S. embassy design to help accustom the Marines working there to an embassy environment.

ARGO Systems, LLC Chief Operating Officer Jeff Johnson; Diplomatic Security Service Director Bill Miller; former commanding officer of Marine Security Guard (MSG) Battalion Col. William Rizzio (USMC Ret.); Marine Corps Embassy Security Group (MCESG)  commanding officer Col. Rollin D. Brewster; Under Secretary of State for Management Patrick F. Kennedy; and Lt. Gen. Ronald L. Bailey cut the ribbon at the dedication of the new Marine Corps Embassy Security Group headquarters building on August 12, 2016 in Quantico, Virginia. Rizzio was the initial planner of the MCESG headquarters project, and ARGO Systems designed and built the facility.  The dedication ceremony was attended by about 70 guests including Rocky Sickman, and Bill Gallegos who were Marine Security Guards (MSG) at the U.S. Embassy in Tehran and were taken hostage when the embassy was overrun by militants in 1979. Both were retroactively presented with the MSG Ribbon.

 

On August 12, 2016, the Marine Corps Embassy Security Group (MCESG) and U.S. Department of State dedicated the new MCESG headquarters building (center background) and its memorial wall at the MCESG compound in Quantico, Virginia. The MCESG headquarters trains and deploys personnel for 175 Marine Security Guard detachments assigned to U.S. embassies and consulates in 147 countries, with the mission to protect U.S. diplomats and prevent compromise of national security information. (U.S. Department of State photo)

On August 12, 2016, the Marine Corps Embassy Security Group (MCESG) and U.S. Department of State dedicated the new MCESG headquarters building (center background) and its memorial wall at the MCESG compound in Quantico, Virginia. The MCESG headquarters trains and deploys personnel for 175 Marine Security Guard detachments assigned to U.S. embassies and consulates in 147 countries, with the mission to protect U.S. diplomats and prevent compromise of national security information. (U.S. Department of State photo)

#SouthSudan Presidential Guards Target American Diplomats in Juba

Posted: 3:22 am ET

 

On August 17, we blogged about South Sudan troops targeting Americans in the country. (see Americans Targeted in South Sudan, a Country That Gets $1.5B in American Humanitarian Aid). On July 8,2016, CNN citing State Department officials reported that shots were fired at U.S. embassy vehicles on July 7 and personnel at the embassy were briefly ordered to shelter in place after gunfire and explosions rocked the capital of Juba, including near the Presidential Palace. At that time, the official spox told CNN, “We do not believe our vehicles and personnel were specifically targeted and have no indication that the security forces were instructed to fire on our vehicles. However, we condemn this attack on U.S. embassy personnel.” 

The July 7 attack described in detail below preceded the assaults and rapes that occurred in the Terrain compound on July 11 but did not become front page news until mid-August. A State Department official told FP that “We do not believe our vehicles and personnel were specifically targeted.”  The report, however, notes that “the front windshields of the two armored SUVs held laminated cards emblazoned with the American flag. In plain sight were diplomatic license plates with the number 11, a well-known calling card in Juba that proclaims the world’s reigning superpower is passing through town.”

Via FP’s Colum Lynch:

State Department officials provided Foreign Policy with conflicting accounts of whether the department had conducted a formal investigation into the incident, with one official saying it hadn’t, and another saying it had carried out some form of investigation. But both officials said they have demanded South Sudan carry out an investigation and hold those responsible to account. The State Department has also downplayed the role of the South Sudanese in targeting U.S. diplomats, saying there was no way to know whether Kiir’s presidential guard knew who they were shooting at.

“We do not believe our vehicles and personnel were specifically targeted,” a State Department official told FP. “I think we can speak with certainty the people in the convoy did not identify themselves necessarily to the soldiers or say that it was an American convoy.”
[…]
Anxious that Juba was set to explode, Molly Phee, the U.S. ambassador to South Sudan, phoned Donegan [note: Jim Donegan, post’s DCM] and six other American diplomats at the restaurant and ordered them to cut short a farewell dinner for a colleague over beer and Indian food. The Americans’ two armored SUVs were passing by the palace when more than half a dozen presidential guards stationed at a checkpoint pulled them to the side of the road. Brandishing AK-47 assault rifles, they yelled at the Americans in a mix of Arabic and Dinka, South Sudan’s main indigenous language. At one point, the soldiers tried to force one of the car doors open, prompting the South Sudanese driver in the lead vehicle to floor it.

The second car followed as the guards opened fire from behind at both vehicles, forcing Donegan’s car to swerve into a parked car, which happened to be owned by a senior South Sudanese national security official. The trail car whizzed past, sideswiping Donegan’s vehicle as it barreled down the main thoroughfare before turning onto CPA Road — named after the U.S.-brokered Comprehensive Peace Agreement — and racing back to the U.S. Embassy. A second group of more than half a dozen South Sudanese troops, dressed in government military uniforms, unleashed a barrage of fire at the Americans. A third cluster of armed soldiers farther along the escape route sprayed the speeding American vehicles.

But Donegan’s vehicle had been badly crippled, temporarily stalling as South Sudanese soldiers fired into its tinted windows. The driver got the car restarted but could only hobble down the road, since two tires had blown out. They made the turn at CPA Road before coming to a second and final stop, fortunately out of sight of their would-be assailants. Donegan and his colleagues waited on the suddenly quiet road for 10 to 15 minutes, before the Marines arrived and brought them back to the embassy.

Read more below:

12 FAM 030 says that the Accountability Review Board 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.”  This is a security-related incident but as far as we are aware, no ARB has been convened.  The FAM also says that “a Board will be convened for the express purpose of investigating only that incident or those incidents specified by the Secretary.”  No announcement has been made that indicates Secretary Kerry has asked for an investigation of this incident.

An OIG review from 2013 warned that the current facility in Juba puts embassy employees at risk.  Correct us if we’re wrong on this, but we think this is the same facility occupied by the embassy to-date.  Couple a deficient facility with a host country unable to control its troops and where presidential guards have now opened fire at embassy vehicles, and you’ve got a security nightmare in the making. If that’s not enough to give you pause, scroll through the comments on Embassy Juba’s Facebook page; you might learn something about how the United States is perceived in a country that it helped gain independence in 2011.

 

Related posts:

 

 

 

 

No Drama Obama Gets Lots of Drama in Asia, Plus Special G20 Surprise in South China Sea

Posted: 3:24 am ET

 

President Obama’s trip to Asia this week got off on a wrong foot. See POTUS in China: A ‘Staircase Snub’, Shouting Matches, and an Apology For a ‘Mistaken’ Tweet. Then on Monday, Philippine President Rodrigo Duterte got foul-mouthy with his early warning threat to President Obama potentially discussing the drug killings in the Philippines (also see Philippine President Calls the US Ambassador to Manila WHAT?). According to the CRS,  the Philippines has been one of the largest recipients of U.S. foreign assistance in Southeast Asia in the past decade, including both military and development aid. It also relies heavily upon the United States for its external security.  According to this 2015 piece, “the archipelago’s sailing force is made up of half-century-old antiques—and is falling apart.” And yet, here is President Duterte with his lovely manners.

 

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Security Assistance to Egypt: End-Use Monitoring and Leahy Vetting

Posted: 12:03 am ET

Via gao.gov:

U.S. agencies allocated approximately $6.5 billion for security-related assistance to Egypt in fiscal years 2011 through 2015. As of September 30, 2015, over $6.4 billion of the $6.5 billion total had been committed or disbursed. The majority of the funding (99.5 percent) was provided to Egypt through the Department of State’s (State) Foreign Military Financing (FMF) account. The funds from this account were used to purchase and sustain a wide variety of military systems, including F-16 aircraft, Apache helicopters, and M1A1 tanks.

Screen Shot

via goa.gov

via gao.gov

The Departments of Defense (DOD) and State implemented end-use monitoring for equipment transferred to Egyptian security forces, but challenges including obtaining Egyptian government cooperation hindered some efforts. DOD completed all required end-use monitoring inventories and physical security inspections of storage sites for missiles and night vision devices (NVD) in fiscal year 2015, but DOD lacked documentation showing that it completed physical security inspections for these sensitive items in prior years. Despite agreeing to give access, the Egyptian government prevented DOD officials from accessing a storage site to verify the physical security of some NVDs prior to 2015, according to DOD officials and documents. State conducted 12 end-use checks of U.S. equipment exported to Egypt in fiscal years 2011 to 2015, but State data indicate that the Egyptian government’s incomplete and slow responses to some inquiries limited U.S. efforts to verify the use and security of certain equipment, including NVDs and riot-control items. Despite this lack of cooperation, since 2008, State has not used outreach programs in Egypt that are intended to facilitate host country cooperation and compliance with State’s monitoring program. According to State officials, this was due to the small number of end-use checks conducted in Egypt and the lower priority assigned to Egypt than to other countries.

The U.S. government completed some, but not all, human rights vetting required by State policy before providing training or equipment to Egyptian security forces. State deemed GAO’s estimate of the percentage of Egyptian security forces that were not vetted to be sensitive but unclassified information, which is excluded from this public report. Moreover, State has not established specific policies and procedures for vetting Egyptian security forces receiving equipment. Although State concurred with a 2011 GAO recommendation to implement equipment vetting, it has not established a time frame for such action. State currently attests in memos that it is in compliance with the Leahy law. However, without vetting policies and procedures, the U.S. government risks providing U.S. equipment to recipients in Egypt in violation of the Leahy laws.

Read in full here.

 

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Yemen Non-Evacuation: Court Refuses to Second-Guess Discretionary Foreign Policy Decisions

Posted: 4:38 am ET

The State Department’s Yemen Crisis page notes that due to deteriorating situation, it suspended embassy operations on February 11, 2015, and U.S. Embassy Sana’a American staff were relocated out of the country.  “All consular services, routine and emergency, continue to be suspended until further notice. The Department notified the public of this move, and its impact on consular services, and urged U.S. citizens in Yemen to depart while commercial transportation was available.”

The U.S. Embassy in Sanaa went on mandatory evacuation in May 2011 (see US Embassy Yemen Now on Ordered Departure), and again in August 2013 (see US Embassy Yemen Now on Ordered Departure) and November 2014 (see US Embassy Yemen on Ordered Departure Once Again). In July 2014, the State Department issued a Travel Warning, see New Travel Warning for Yemen — Don’t Come; If In Country, Leave! But Some Can’t Leave).

See our other posts:

The case below was filed on April 9, 2015 by a Nora Ali Mobarez, a United States citizen residing in Yemen.  She was joined by “25 other people, all of whom are U.S. citizens or permanent residents with Yemeni connections” in filing a cases against the Secretaries of State and Defense and seeking a court order to “compel Defendants to comply with an alleged duty of the Executive Branch to provide a means of evacuation from Yemen for them or their relatives.”

Excerpt from the Memorandum of Opinion dated May 17, 2016 by Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia:

Plaintiff Nora Ali Mobarez, a United States citizen, is currently residing in the war-torn and conflict-ridden Republic of Yemen. (See Compl., ECF No. 2, ¶¶ 4, 55– 59.) Mobarez has joined with 25 other people, all of whom are U.S. citizens or permanent residents with Yemeni connections, to file the instant official-capacity complaint against the Secretary of the Department of State (“State”) and the Secretary of the Department of Defense (“DOD” and, collectively, “Defendants”). These plaintiffs seek a court order to compel Defendants to comply with an alleged duty of the Executive Branch to provide a means of evacuation from Yemen for them or their relatives. (See id. ¶¶ 3–24, 29–77.) Specifically, their complaint asserts that the United States has closed its embassy in Sana’a, Yemen, has evacuated embassy staff, and has removed Marines from the country, but that the U.S. government has yet to execute any plan to secure the safe removal of private American citizens. (See id. ¶¶ 34–36, 77.) According to Plaintiffs, Defendants’ forbearance violates the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06, insofar as Defendants “have failed to provide through direct military assistance or contracting with commercial entities the necessary equipment, ships, airplanes, and other items that are available to Defendants to [e]nsure the security, safety, and well-being of United States citizens[,]” and have therefore “unlawfully withheld and/or unreasonably delayed agency action to which the Plaintiffs are entitled” and/or “have taken action that is arbitrary and capricious and an abuse of discretion and not in accordance with law[.]” (Id. ¶ 81.)

Before this Court at present is Defendants’ Motion to Dismiss the instant complaint. (See Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 8.) Defendants contend that Plaintiffs are wrong about the existence of any duty to evacuate them. (See Defs.’ Reply in Supp. of Defs.’ Mot. (“Reply”), ECF No. 12, at 6–8.)1 Furthermore, as a threshold matter, Defendants insist that legal claims such as the ones Plaintiffs bring here require the judiciary to second-guess the discretionary foreign- policy decisions of the Executive Branch, and thus, are nonjusticiable under the political-question doctrine. (See Defs.’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 8-1, at 12–14.)

On March 31, 2016, this Court issued an order GRANTING Defendants’ Motion to Dismiss Plaintiffs’ complaint. (See Order, ECF No. 13.) The instant Memorandum Opinion explains the Court’s reasons for that order. In short, the Court agrees with Defendants’ justiciability argument, and has therefore concluded that it lacks jurisdiction to entertain Plaintiffs’ complaint.
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Plaintiffs have asked this Court, in no uncertain terms, to issue an order that compels the Executive Branch to conduct an evacuation of American citizens in Yemen. Not surprisingly, Defendants insist that any such order would impermissibly encroach upon the discretion that the Constitution affords to the political branches to conduct foreign affairs; therefore, prior to considering Defendants’ contention that Plaintiffs’ complaint fails to state a claim under the APA, this Court must first determine whether or not it has the authority to traverse the thicket of thorny foreign-policy issues that encompasses Plaintiffs’ allegations. Precedent in this area makes it crystal clear that federal courts cannot answer “political questions” that are presented to them in the guise of legal issues, see infra Part III.A., but identifying which claims qualify as nonjusticiable political questions—and which do not—can sometimes be a substantially less lucid endeavor. Not so here: as explained below, after considering the parties’ arguments and the applicable law regarding the boundaries of the political-question doctrine, this Court is confident that Plaintiffs’ claims fit well within the scope of the nonjusticiability principles that the Supreme Court and D.C. Circuit have long articulated. Accordingly, in its Order of March 31, 2016, the Court granted Defendants’ motion and dismissed Plaintiffs’ case.
[…]
It cannot be seriously disputed that “decision-making in the fields of foreign policy and national security is textually committed to the political branches of government.” Schneider, 412 F.3d at 194; see also id. at 194–95 (collecting the various explicit “[d]irect allocation[s]” in the Constitution of those responsibilities to the legislative and executive branches). And, indeed, Plaintiffs seek to have this Court question the Executive Branch’s discretionary decision to refrain from using military force to implement an evacuation under the circumstances described in the complaint, despite the fact that, per the Constitution, it is the President who, as head of the Executive Branch and “Commander in Chief[,]” U.S. Const. Art. II, § 2, decides whether and when to deploy military forces, not this Court. See El-Shifa, 607 F.3d at 842 (explaining that a claim “requiring [the court] to decide whether taking military action was wise” is a nonjusticiable “policy choice[] and value determination[]” (second and third alterations in original) (internal quotation marks and citation omitted)).

Plaintiffs’ suggestion that the court-ordered remedy they seek could very well stop short of a direct mandate for military intervention (see Pls.’ Opp’n at 15 (asserting that “[t]his Court can order Defendants to [effectuate the evacuation] by simply directing the evacuation to happen and leaving it to Defendants to determine the means”)) makes no difference, as far as the political-question doctrine is concerned. Regardless, the clear basis for the complaint’s assertion that Plaintiffs are entitled to any relief at all is the contention that the Executive Branch has abused its discretion— in APA terms—in refusing to evacuate U.S. citizens from Yemen thus far (see, e.g., Compl. ¶ 81), and the Court’s evaluation of that contention would necessarily involve second-guessing the “wisdom” of these agencies’ discretionary determinations.
[…]
[T]he “strategic choices directing the nation’s foreign affairs are constitutionally committed to the political branches[,]” and once it becomes clear that a plaintiff wishes the courts to “reconsider the wisdom of discretionary foreign policy decisions[,]” the judicial inquiry must end.

Read the Memorandum of Opinion here (PDF) or read below:

 

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Amb. to Seoul Mark Lippert Gets an F-16 Ride Over South Korean Airspace, DPRK Reacts

Posted: 3:01 am ET

 

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