Coming Soon – Accountability Review Board Havana For Mysterious Attacks in Cuba

Posted: 3:34 am ET

 

The State Department’s new Under Secretary for Public Diplomacy and Public Affairs Steve Goldstein  did a press gaggle on January 9 and was asked about the convening of an Accountability Review Board for the attacks against American diplomats in Havana. He said that he expects announcements of the chair and the members of the board available for release within the next week. He also told the press “We believe that the Cuban Government knows what occurred, and so what we’d like them to do is to tell us what occurred so we can ensure this doesn’t happen again.”

He told members of the media that the USG “is not considering restoring the staff” at US Embassy Havana, and that the State Department is “providing extensive medical care to people that need it,” and that the agency “have also made it clear that if people do not want to serve in that particular embassy, they do not have to.”

When asked about Senator Marco Rubio’s comments that it’s against the law that it took –rather than 60 or 120 days– almost a year to stand up ARB Havana, U/S Goldstein responded:

UNDER SECRETARY GOLDSTEIN: Right. Well, I – we have great respect for the senator, and he shares our concern about trying to reach resolution on this matter. It took time to set up the accountability review board because we were hopeful that we would be able to know what occurred. We were – the investigation has taken longer than we anticipated, and – but it is now time to go forward. And again, we would expect the – I would expect the names to be announced over the next several days. I do have the names, I just can’t – I’m not – I want to make sure that the people have been notified.

QUESTION: — by failing to announce or create this review board back in July, that the – that you had confirmed that people were seriously wounded by March or May, that the law requires if you know that a State Department personnel is seriously wounded, that you create a review board within 60 days or tell Congress why you’re not doing so. That is the clear letter of the law. You did not follow it. That’s what he claims. What is your response to that?

UNDER SECRETARY GOLDSTEIN: Right. We don’t agree with that. The assistant secretary today made clear, and we have said too, that it took us time to get the investigation in place. The investigation is continuing, and we believe that we have the – had the authority to determine when the accountability review board should be set in place. I think let’s not lose focus here. There’s 24 people that had injuries, and those people are receiving treatment, and we’ve had over 20 conversations with the people of Cuba. We’ve – the government investigators have been down four times; they’re going down again within the next few weeks. And so our primary goal at the present time is to find out why this occurred, to prevent it from happening again in Cuba and the embassy of Cuba or in any other place where American citizens are located.

When an ARB should be convened is in the rules book once it was determined that the incident was security-related with serious injury.  For folks who want a refresher, per 12 FAM 030, 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.

Security-related incidents are defined as “A case of serious injury, loss of life, or significant destruction of property at or related to a U.S. government mission abroad, or a case of a serious breach of security involving intelligence activities of a foreign government directed at a U.S. mission abroad (other than a facility or installation subject to the control of a U.S. area combatant commander), and which does not clearly involve only causes unrelated to security.”

(See U.S. Diplomats in Cuba Sonic Attacks: As Serious as Mild TBI/Central Nervous System Damage?)

12 FAM 032.1 updated in October 2017 notes that the ARB/Permanent Coordinating Committee will, “as quickly as possible after an incident occurs, review the available facts and recommend to the Secretary to convene or not convene a Board.  (Due to the 1999 revision of the law requiring the Secretary to convene a Board not later than 60 days after the occurrence of an incident, except that such period may be extended for one additional 60-day period, the 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.”

So we gotta ask an uncomfortable question for the Tillerson State Department — is it possible that no ARB Havana was convened because the eight positions who are members of the PCC, an entity tasked with making recommendations to the Secretary was not filled or only partially filled?

Did the ARB/PCC meet on the Havana incidents last year? What recommendations were made to the Secretary? Why are they convening an ARB just now?

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Dear @StateDept, You Need Bond. Michele Bond at the Daily Press Briefing

Posted: 4:08 am EDT
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In case you missed this:

 

We’ve just read the Daily Press Briefing from last week with the press corps asking questions about K-1 visas related to the San Bernardino attack.

Oh, holy mother of goat and her stupid nephews!

It should have been all hands on deck to know absolutely everything about this case.  Instead we have Mark Toner, the deputy spokesperson of the State Department on December 3, either asking to take the question, or guessing his response. “I don’t know “…. “I would presume …”

Then the next day, Elizabeth Trudeau, the Press Office director did the DPB and seriously underwhelmed our video player. She refused to confirm that the K-1 visa was issued in Islamabad, something that Mr. Toner already talked about just the day before. 

Folks, haven’t you learned anything at all?  Anything? It’s not like this case is locked in a file cabinet in the catacombs of Foggy Bottom..  That’s why you have your consular systems.

 

Her name is Bond, Michelle Bond.

The State Department need to put its Consular Affairs Assistant Secretary of State Michele Bond up there at the podium to answer these questions.  Help the journalists understand the K-1 process, and the roles State and DHS play in the systems currently in place.  PA officials who have not done visa work in 15-20 years should not be left on the podium guessing about the process and unable to answer questions about this case.

When the press asks, “Can Americans have confidence in this visa processing system?”, Ms. Bond should be able to say “Absolutely, and here’s why.”  And she should be able to explain clearly the whys.  Hopefully, she’s not going to say because “it’s an adaptable system” or  that “We continue to improve it.” Because people are not really interested whether it’s an adaptable system. They want an assurance that the systems in place work; and if it did not work in the visa issuance process for Tashfeen Malik, they want to know what had been done to update that process.

We were going to suggest that the State Department convene an Accountability Review Board per 12 FAM 030. The ARB Permanent Coordinating Committee, where the Deputy Assistant Secretary for Visa Services sits as one of its seven members, by the way, can make that recommendation to the Secretary:

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

Except that current regulations are quite clear that “a Board will be convened with respect to a visa incident only if the following three determinations are made:”

(1)  That the incident involved a terrorist act causing serious injury, loss of life, or significant destruction of property in the United States;

(2)  That there is probable cause to believe that a specifically identified alien was a participant in the terrorist act; and

(3)  That the alien was issued a visa on or after May 1, 1996; at the time of visa issuance, the alien’s name was included in the Department’s Consular Lookout and Support System (CLASS) and that the visa was issued as a result of a failure by the consular officer to adhere to the procedures required to be followed by the inclusion of the name in such visa lookout system.

Since State is confident of its vetting process, it appears right now that subject was not in the CLASS.  Which would make the ARB not a requirement under these regs.

Nonetheless, it would be helpful to know if the State Department has reviewed its internal processes or that it plans to do so. This individual got through  — despite the vetting, the interagency sharing of information, fingerprints, etc, and the face to face interview —  it is not unreasonable to ask how she got in. Maybe there are no cracks, but the public needs to understand the process, which will never with 100% fault-free.

As our consular blog pal told us, “It will never be fault-free because humans aren’t.” People can get away with lying, or can change their minds. Unless the USG has come up with a precognition system similar to Philip K. Dick’s in the Minority Report, there is no way to determine an individual’s action in the future. What do you do with a culprit that has not yet committed a crime? Do you arrest him or her before he/she commits a future crime thereby protecting the public from all prospective harm?  What regulations apply to that?


Daily Press Briefing excerpts:

On December 3, Mr. Toner, the State Department’s deputy spox took a stab at the K-1 questions.  If you want to beat your head against the wall, hard … well, we can understand the feeling, but wear your helmet first, okay?

QUESTION: — of the suspects in the San Bernardino mass shooting that happened yesterday? There are various statements and reports out there about Tashfeen Malik, the alleged female shooter suspect who was killed yesterday. Some are saying that she lived in Saudi Arabia before coming to the U.S. And what I wonder is the extent to which the State Department has been pulled into this investigation. Can you give us some kind of guidance on whether those reports are accurate? And if so, what type of visa was she in the United States on? Is there anything about the citizenship status of her that you can share with us?

MR TONER: Sure. Well, since it’s already been reported out in the press, I can confirm that she did receive or was issued a K-1 so-called fiancee visa, I believe in 2012. Is that correct? 2015 – 2000 – help me here. Okay, we’ll get that number for you. Unfortunately, it’s not in front of me here. But she did receive that from Pakistan. That allowed her to travel here to the United States.
[….]
QUESTION: Does that require an interview?

MR TONER: If that petition is approved, the case is forwarded to the U.S. consulate abroad in order to verify the qualifying relationship and vet the applicant for any derogatory information. I’m virtually sure that, as in any visa – as in any visa processing, that that involves an interview. I don’t know if —

QUESTION: But not a joint interview, right? They don’t have to appear together at the consular office, wherever that is?

MR TONER: Not – that I’ll have to – I’ll have to take that question. I’m not sure. I’m not sure.

[….]

QUESTION: And can you also check on the – that before getting that given visa, where did they meet? Because I’m not sure, but if I’m remembering correctly, there is a clause that they should have met or like – it’s not just on the —

MR TONER: Again, no, that wouldn’t – so that wouldn’t – again, I would refer those kinds of questions to the FBI who’s conducting the investigation into this.

QUESTION: Well, what happens if they don’t get married within 90 days?

MR TONER: I would presume that the – that would invalidate the visa.

QUESTION: And if – okay. And then if they do, does that mean that the visa is extended or they have to apply for something else?

MR TONER: Unclear to me whether that would be – that would be automatically extended. I would somewhat doubt that. There may be – again, I’m – I’d have to get you the full facts on it. I mean, if there’s extenuating circumstances, perhaps. I don’t know in this particular case and can’t really speak to it, but there’s a 90-day window because there’s a 90-day window. So, I mean —

QUESTION: Right. But one doesn’t automatically become a U.S. citizen —

MR TONER: No, not at all.

QUESTION: — simply because one married one. So clearly —

MR TONER: Not at all. So any individual would have to provide for legal residency or a green card after living here, I guess, in – it’s one year, I think.
[…]

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Clinton will testify when ARB report is ready, that may/may not be next week — oh wait update

We blogged yesterday that Secretary Clinton is scheduled to testify at HFAC on Thursday, December 20.

She is also listed as sole witness on the 9:00 am, December 20, hearing at the SFRC on BENGHAZI: The Attack and the Lessons Learned.

We noted previously that the unclassified ARB on the 1998 East Embassy bombings is publicly available but that the other ARB reports through the last several years are not.   Due to intense public and congressional interest on this incident, we have always presumed that the unclassified portion of the Pickering ARB report will be released to the public.

Then you get this back and forth during the Daily Press Briefing between the State Dept spokesperson Toria Nuland and a member of the press that made us scratch our head.

QUESTION: So as – just to change the subject. As you know, Congress has set a date for Secretary Clinton to testify on Benghazi. So does that mean that the ARB is done now? And has she seen it? Have you seen it?
MS. NULAND: First of all, we talked about this a little bit yesterday. The ARB is continuing to do its work. To my knowledge, it has not yet concluded its work. As you know, it’s decided to keep its deliberations confidential until it is finished. As we’ve been saying, our expectation is that after the ARB reports to the Secretary, then she will have consultations with Congress in terms of the conclusions that she draws about how we need to go forward from there. So obviously, we’re planning ahead, but I don’t have any dates to announce until we have firm dates on when the ARB is coming forward.
QUESTION: Does Congress get a copy of the ARB, and do Mullen and Pickering either brief Congress or brief the press?
MS. NULAND: The ARB’s responsibility is to brief the Secretary. The Secretary has said that she will be transparent and open with Congress. I don’t have anything further to announce. I think we need to let the ARB report come forward, and we’ll go from there.
[…]
QUESTION: She does intend to testify next Thursday on the 20th of December?
MS. NULAND: Again, the Hill has talked about a planning date on the calendar. That presumes that the ARB is finished. I don’t have any dates – any schedule of the Secretary’s to announce here. It’s dependent upon events between now and then.
[…]
QUESTION: She hasn’t committed to testify?
MS. NULAND: Again, it’s dependent on the work being finished. Okay?
QUESTION: Are you aware that Senator Kerry announced that she will testify next Thursday?
MS. NULAND: She has made clear that when the work is ready, she will go consult with Congress on it. And that’s a commitment she’s made, and she intends to keep it.
QUESTION: And it could be later. On the point that he made, under the ARB regulations, the report is required to be given to Congress within 90 days of its completion.
MS. NULAND: No. What is required, Josh, and we’ll get you the statute if you’d like, is that the Secretary’s response to the ARB’s conclusions has to go in writing to the Congress within 90 days of her receiving the report. She obviously will intend to consult with them far earlier than that, as she’s committed.

The reporter did not ask Ms. Nuland if Ambassador Pickering requested an extension to the 60 day authority of the Board, which should have expired on/about December 4.

The Cable’s Josh Rogin: State Dept: Clinton may not testify on Benghazi next week

The exchange seems to also indicate that the ARB report itself may not be submitted to Congress but that Secretary Clinton’s response to the ARB recommendations/conclusion will be.

So we went and dug up the regs once more.

On the ARB findings:  12 FAM 035.1 (b) specifies that “In its report to the Secretary, a Board makes written findings, which may be classified, as necessary.”

Given the presence of the CIA, we suspect that a large chunk of the report will be classified.  The Board itself has no classification authority.  So the Director of M/PRI (reportedly Alaina Teplitz) will exercise classification authority for materials originating from Board activities according to the regs.

12 FAM 036.1 enumerates the types of reports that we can expect from the ARB:

  1. A Board’s report to the Secretary on its findings and any program recommendations;
  2. The Secretary’s report to the Congress on any program recommendations and the actions taken on them; and
  3. Report(s) to the Congress by the head(s) of the concerned agency(ies) or instrumentality(ies) on any personnel recommendations.

12 FAM 036.3 specifically talks about the Reports to Congress:

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

So yes, the regs did not say she has to submit the ARB report to the Congress, only that she submits a report on the ARB recommendation and the action taken.  There’s nothing that restricts her, of course, from sharing the ARB report (publicly or in closed doors, security classification excepted), but the ARB regulations do not appear to require her to do that.

Given the conspiracy theories already sprouting heads out of the Benghazi attack, we really hope there is a publicly available version of the report.

Updated@ 12/14:  After Toria Nuland’s suggestion yesterday that the ARB report on which Secretary Clinton’s testimony will be based might not be ready in time, the acting deputy spokesman offered some clarifications:

“The committees have announced the secretary will be on the Hill next Thursday, and so that’s the plan,” said Patrick Ventrell, the State Department’s Acting Deputy Spokesperson, in a briefing today. “We’ve been cooperating with Congress extensively and will continue to do so.”

Ugh! A few more of this and we will need dramamine.

Updated @ 12/15 11:17 am PST:
Deputy Assistant Secretary of State Philippe Reines on Saturday has the following email to reporters (via npr):

“While suffering from a stomach virus, Secretary Clinton became dehydrated and fainted, sustaining a concussion. She has been recovering at home and will continue to be monitored regularly by her doctors. At their recommendation, she will continue to work from home next week, staying in regular contact with department and other officials. She is looking forward to being back in the office soon.”

The AP is now reporting that Clinton’s aides on Saturday informed the SFRC chairman, Sen. John Kerry, about her health, and that “the Massachusetts Democrat,  “insisted that given her condition, she could not and should not appear” as planned, said Kerry spokeswoman Jodi Seth.  Senior department officials are expected to testify instead.” No word yet on how the HFAC hearing is going to proceed without its main witness.

domani spero sig