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.

 

Snapshot: Managing Accountability Review Board (ARB) Recommendations

Via 12 FAH-12 H-010
06-01-2020
(Office of Management Strategy and Solutions (M/SS))

(Click image to see larger view)

Related item:
12 FAM 030 ACCOUNTABILITY REVIEW BOARD (ARB)
Snapshot: ARB Recommendations — Procedural Action and Responsibilities 2016

Pompeo Convenes ARB Guadalajara For Jan 2017 Attack on USG Employee

On November 8, the Federal Register published a notice that an Accountability Review Board (ARB) for a security incident where a U.S. national attempted to murder a U.S. diplomat in Guadalajara, Mexico had been convened:

On June 1, 2018, Secretary Pompeo authorized the convening of an Accountability Review Board (ARB) to review a January 2017 attack on a U.S. government employee in Guadalajara, Mexico. Pursuant to Section 304 of the Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended (22 U.S.C. 4834), the ARB will examine the facts and circumstances, and report findings and recommendations as it deems appropriate, in keeping with its mandate. (see American Diplomat Wounded in Targeted Attack in #Guadalajara, Mexico). Last month, the assailant was sentenced to 22 years (see U.S. National Sentenced to 22 Years For Attempted Murder of U.S. Diplomat in Mexico).

The notice includes the composition of the ARB:

Secretary has appointed Lisa Kubiske, a retired U.S. Ambassador, as Chair of the Board. The other Board members are retired Ambassador Linda Thomas-Greenfield, retired Ambassador Joan Plaisted, Ms. Carol Gallo, and Mr. John DeSalvio. They bring to their deliberations distinguished backgrounds in government service.

According to the notice, the Board “will submit its conclusions and recommendations to Secretary Pompeo within 60 days of its first meeting, unless the Chair determines a need for additional time. Within the timeframes required by statute following receipt of the report, the Department will report to Congress on recommendations made by the Board and action taken with respect to those recommendations.”

12 FAM 030 on the ARB provides that “The Secretary must convene a Board not later than 60 days after the occurrence of an incident, except that such 60-day period may be extended for one additional 60-day period if the Secretary determines that the additional period is necessary for the convening of the Board.”  The attack occurred in January 2017; we have not been able to locate a notice of an ARB for this incident authorized by Tillerson. Pompeo assumed office in Foggy Bottom on April 26, 2018. ARB Guadalajara was authorized on June 1, 2018, some 17 months after the incident, but less than 60 days from Pompeo’s taking office. 

There is a provision in the regs for a delay in convening an ARB; we can’t tell if the delay here was under this provision or simply because Tillerson’s tenure was beset by chaos: With respect to breaches of security involving intelligence activities, the Secretary may delay the convening of a Board, if, after consultation with the chair of the Select Committee on Intelligence of the Senate and the chair of the Permanent Select Committee on Intelligence of the House of Representatives, the Secretary determines that the establishment of a Board would compromise intelligence sources or methods.  The Secretary must promptly advise the chairs of such committees of each determination to delay the establishment of a Board. 

In any case, we’re still interested in learning more about what happened to ARB Guadalajara. If it’s been concluded, has it been forwarded to Congress? 

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@StateDept Updates List of Personnel Offenses Subject to Discipline, Note Language on Freedom of Expression

Posted: 3:52 am ET
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In January 2017, Congress passed the Department of State Authorities Act: Fiscal Year 2017, which introduced new legislative requirements with regard to the Accountability Review Board (ARB) statute. On July 17, the State Department updated three FAM sub-chapters related to standards of appointment and continued employment, and the list of offenses subject to disciplinary action for both the Foreign Service and the Civil Service.

3 FAM 4130 STANDARDS FOR APPOINTMENT AND CONTINUED EMPLOYMENT

Under 3 FAM 4138, the following update has been added:

  • (12) Conduct by a senior official that demonstrates unsatisfactory leadership in relation to a security incident under review by an Accountability Review Board convened pursuant to 22 U.S.C. 4831; or
  • (13) Misconduct or unsatisfactory performance that significantly contributes to the serious injury, loss of life, or significant destruction of property, or the serious breach of security in relation to a security incident, as found by an Accountability Review Board convened pursuant to 22 U.S.C. 4831.

Note that 3 FAM 4139.3  Freedom of Expression (CT:PER-860;  07-17-2017) (Uniform State/USAID)
(Applies to Foreign Service Employees)
appears to be a new addition. Further note the language here that says “An employee may be held accountable for unintentional as well as deliberate and unauthorized public expressions whether written or spoken, which, by violating the confidentiality of privileged information, impede the efficiency of the Service.”

The agencies do not presume to impinge upon any of their employee’s right of expression, but the individual as an employee is obliged to protect or to refrain from unauthorized dissemination of certain types of information which the employee acquires through official duties, such as classified information, privileged financial, commercial, and other business information, and information about individuals protected by 5 U.S.C. 552a (the Privacy Act of 1974).  An employee may be held accountable for unintentional as well as deliberate and unauthorized public expressions whether written or spoken, which, by violating the confidentiality of privileged information, impede the efficiency of the Service.  Such efficiency may be impeded because information appearing insignificant from a security point of view is highly sensitive by virtue of the source or manner in which it was acquired; or because creation of a poor reputation for discretion and security consciousness seriously impairs the trust and confidence the Service normally enjoys with foreign governments and individuals with whom it must deal in candor and mutual confidence.  The Department’s procedures for the expression of dissenting views on official matters are contained in 5 FAM, and for the agencies the prerequisites for public speeches or writing for publication are found in uniform State/USAID regulations in 3 FAM 4170.

Other additions/update to this subchapter includes Habitual Use of Intoxicating Beverages to Excess, Abuse of Narcotics, Drugs, or Other Controlled Substances, Loyalty and Security, and Financial Responsibility.

3 FAM 4370 says: The purpose of this subchapter is to advise employees, supervisors, and managers of some of the types of employee conduct which can result in disciplinary action.  It is intended that this material be required reading for new employees and that it be referred to during briefings on the behavior expected of employees, ethics, the Department’s leadership tenets, etc.  The Department believes that the more employees know and understand their responsibilities and the professional standards by which they are expected to abide, the less likely it is that they will engage in improper behavior that requires disciplinary action.  Disciplinary action is taken only after it has been determined that discipline, rather than less formal action, such as an admonishment, is necessary.

On duty 24 hours a day:  As explained in 3 FAM 4130, the attainment of foreign policy objectives requires the maintenance of the highest standards of conduct by employees of the Foreign Service.  Because of the uniqueness of the Foreign Service, employees serving overseas are considered to be on duty 24 hours a day, seven days a week, and must observe especially high standards of conduct during and after working hours, and when on leave or in travel status.  Accordingly, the commission after work hours of many of the offenses listed here under “Conduct on the Job” would still be punishable if it affects the ability of the individual or the agency to carry out its responsibilities or mission.  No action against a Foreign Service employee should be considered without a careful review of 3 FAM 4130.

The list is not exhaustive, but these are a few marked additions:

  • 40. Dereliction of managerial and supervisory duty by neglecting to carry out personnel management responsibilities, including failure to address conduct or performance problems, failure to complete required performance ratings or reviews, or failure to address a toxic workplace.
  • 50. Violation of laws, regulations, or policies relative to trafficking in persons and the procurement of commercial sex, any attempt to procure commercial sex, or the appearance of procuring commercial sex.
  • 51.  Sexual Assault (3 FAM 1700)
  • 52.  Violation of regulations or policies (including post policies) regarding the payment or treatment of domestic staff (3 FAM 4128)
  • 53. Failure to maintain records as required in 5 FAM 414.8 paragraph (2)
  • 54. Misconduct or unsatisfactory performance that significantly contributes to the serious injury, loss of life, or significant destruction of property, or the serious breach of security in relation to a security incident, as found by an Accountability Review Board convened pursuant to 22 U.S.C. 4831.

See more 3 FAM 4370 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – FOREIGN SERVICE

The subchapter for the Civil Service appears to be entirely new:

It is impossible to list every possible punishable offense, and no attempt has been made to do this.  Employees are on notice that any violation of Department regulations could be deemed misconduct regardless of whether listed in 3 FAM 4540.  This table of penalties lists the most common types of employee misconduct.  Some offenses have been included mainly as a reminder that particular behavior is to be avoided, and in the case of certain type of offenses, like sexual assault, workplace violence, and discriminatory and sexual harassment, to understand the Department’s no-tolerance policy.

The non-exhaustive list includes 51 offenses with penalties meriting a Letter of Reprimand except for the following:

12. Improper political activity (5 U.S.C. 7321, et seq.) – suspension or removal

35. Violation of the “no strike” affidavit – removal (same penalty for Foreign Service)

39. Gifts to official supervisors¾soliciting contributions for gifts or presents to those in superior official positions, accepting gifts or presents from U.S. Government employees receiving lower salaries, or making donations as a gift or present to official supervisors (exception:  this does not prohibit a voluntary gift of nominal value or donation in a nominal amount made on a special occasion such as marriage, illness, retirement, or transfer (22 CFR 1203.735-202(e)) – Removal (required by 5 U.S.C. 7351) (same penalty for the Foreign Service)

Read more here: 3 FAM 4540 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – CIVIL SERVICE

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Snapshot: ARB Recommendations — Procedural Action and Responsibilities

Posted: 1:26 am ET
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Via 12 FAH 12 Exhibit H-013 | M/PRI 12-08-2014

Per 12 FAH 12, following receipt of an Accountability Review Board’s report, the Secretary will determine what actions should be taken with respect to the recommendations.  The Deputy Secretary of State for Management and Resources will oversee the Department’s progress on ARB implementation. The Under Secretary for Management (M), in coordination with the Under Secretary for Political Affairs (P), is responsible for implementation of ARB recommendations.  On behalf of the Secretary and other Department principals, the Office of Management Policy, Rightsizing and Innovation (M/PRI) will coordinate and track recommendations and manage the overall implementation process. 

Screen Shot

 

Related item:

12 FAM 030  ACCOUNTABILITY REVIEW BOARD (ARB)

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OIG Compliance Review: Minimum Security Standards For Overseas Facilities Remain a Hard Nut to Crack

Posted: 2:00 pm EDT
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Three ARB-related IG reports were issued this past week, two of them, the Audit of the DOS Implementation of the Vital Presence Validation Process and the Review of the Implementation of the Benghazi Accountability Review Board Recommendation have been designated as Classified. The third one, the Compliance Followup Review of the 2013 Special Review of the Accountability Review Board Process is available in full online.

On September 25, 2013, State/OIG released its Special Review of the Accountability Review Board (ARB) Process. That report contains 20 formal and 8 informal recommendations. For the status of the 20 formal recommendations, see Appendix B of the report.  For the status of the informal recommendations, see Appendix C of the report. The OIG notes that the action taken by State at some Benghazi ARB recommendations “did not appear to align with the intent of the recommendations and some Benghazi ARB recommendations did not appear to address the underlying security issues adequately.”

Thirteen of the formal recommendations and five of the informal recommendations are related to the ARB process. The remaining seven formal and three informal recommendations mirror or are closely related to the Benghazi ARB recommendations. As stated in the ARB process review report, the ARB process team’s rationale for issuing these recommendations was that the action taken to date on some of the Benghazi ARB recommendations did not appear to align with the intent of the recommendations and some Benghazi ARB recommendations did not appear to address the underlying security issues adequately. The classified annex to the report provides an assessment of the Department’s implementation of the recommendations of the Benghazi ARB as of the date of the review. Its focus is on the implementation of the 64 tasks S/ES issued in response to the Benghazi ARB recommendations. It contains no OIG recommendations.

In the Compliance Followup Review or CFR dated August 2015, State/OIG reissued one recommendation from the 2013 inspection report, that the Under Secretary of State for Management, in coordination with the Bureau of Diplomatic Security and the Bureau of Overseas Buildings Operations, develop minimum security standards that must be met prior to occupying facilities located in designated high-risk, high-threat locations and include these minimum standards for occupancy in the Foreign Affairs Handbook as appropriate. The report also include a little nugget about DOD cooperation with investigative reports of security-related incidents that involve State Department personnel, specifically mentioning “the incident in Zabul Province, Afghanistan.” That’s the incident where FSO Anne Smedinghoff and four others were killed in Zabul, Afghanistan in April 2013.

Outstanding Recommendation on Minimum Security Standards 

Recommendation 17 of the ARB process review report recommended that the Department develop minimum security standards that must be met prior to occupying facilities in HRHT locations. The Department rejected this recommendation, stating that existing Overseas Security Policy Board standards apply to all posts and that separate security standards for HRHT posts would not provide better or more secure operating environments. Furthermore, recognizing that Overseas Security Policy Board standards cannot be met at all locations, the Department has a high threshold for exceptions to these standards and the waiver and exceptions process requires “tailored mitigation strategies in order to achieve the intent of the standards.”5

Although OIG acknowledges the Department’s assertion of a “high threshold for exceptions,” the Department’s response does not meet the recommendation’s requirement for standards that must be met prior to occupancy. As was noted in the ARB process review report, “…occupying temporary facilities that require waivers and exceptions to security standards is dangerous, especially considering that the Department occupies these facilities long before permanent security improvements are completed.”6 As the Department has not identified minimum security standards that must be met prior to occupancy, Recommendation 17 is being reissued.

Recommendation CFR 1: The Office of the Under Secretary of State for Management, in coordination with the Bureau of Diplomatic Security and the Bureau of Overseas Buildings Operations, should develop minimum security standards that must be met prior to occupying facilities located in Department of State-designated high-risk, high-threat environments and include new minimum security standards of occupancy in the Foreign Affairs Handbook as appropriate. (Action: M, in coordination with DS and OBO)

So, basically back to where it was before Benghazi, when there were no minimum security standards prior to occupying temporary facilities.

How high is this “high threshold of exceptions” that’s being asserted?

Risk management process now called “tailored mitigation strategies” — resulting in waivers of Inman standards?

So waivers will continue to be executed?

And temporary facilities will continue to be occupied?

Key Findings:

  • The Department of State has complied with all the formal and informal recommendations of the 2013 Special Review of the Accountability Review Board Process, except one, which has been reissued in this report.
  • The Department of State has implemented regulatory and procedural changes to delineate clearly who is responsible for implementation, and oversight of implementation, of Accountability Review Board recommendations. The Under Secretary for Management, in coordination with the Under Secretary for Political Affairs, is responsible for implementation of Accountability Review Board recommendations. The Deputy Secretary for Management and Resources is responsible for overseeing the Department’s progress in Accountability Review Board implementation, which places accountability for implementation at an appropriately high level in the Department of State.
  • The Office of Management Policy, Rightsizing, and Innovation manages the Accountability Review Board function. The Accountability Review Board process review report was critical of the Office of Management Policy, Rightsizing, and Innovation’s recordkeeping and files of past Accountability Review Boards. The Office of Management Policy, Rightsizing, and Innovation has since revised its Accountability Review Board recordkeeping guidelines. These revised guidelines have yet to be tested, as no Accountability Review Board has met since the Benghazi Accountability Review Board, which issued its report in December 2012.

More details excerpted from the IG report

Flow of Information

Formal Recommendations 1, 2, 3, and 9—as well as Informal Recommendations 1 and 3—concern the flow of information within the Department and from the Department to Congress. The recommendations introduce additional reporting requirements for all incidents that might meet the criteria to convene an ARB, as well as a more clearly defined list of congressional recipients for the Secretary’s Report to Congress. Recommendation 9 tasks S/ES with creating a baseline list of congressional recipients for the Secretary’s report to Congress. That list is now more clearly specified and included in regulations governing the ARB process.

Informal Recommendation 3 requires broader circulation of ARB reports as well as the Secretary’s report to Congress. The M/PRI position is that these reports belong to the Secretary and their dissemination should be at the Secretary’s discretion. OIG continues to believe that the Secretary should exercise discretion and circulate ARB reports and subsequent reports to Congress more widely within the Department.

ARB Recordkeeping

In December 2014, M/PRI revised its ARB recordkeeping guidelines regarding those records to be retained and safeguarded. However, because no ARB has convened since Benghazi, these revised guidelines remain untested. Although these guidelines require recording and transcribing telephone interviews, they do not mandate verbatim transcripts of all interviews, including in-person meetings, as the Inspector General suggested in his May 29, 2014, memorandum to the D/MR.

Action Memo for the Secretary

In compliance with Recommendation 1, the OIG CFR team found that M/PRI now drafts an action memo for the Secretary after every Permanent Coordinating Committee (PCC) meeting detailing the PCC decision, even if the PCC does not recommend convening an ARB.

In response to Recommendation 4, the Under Secretary for Management amended 12 FAM 030 to require vetting and reporting security-related incidents, which do not result in convening a PCC. Those cases will be communicated to the Secretary.

Alternative Review

To meet the intent of Recommendation 2, M/PRI has included in its instructions to the PCC chair a reminder to PCC members that if the PCC votes not to convene an ARB, the PCC should decide whether to recommend that the Secretary request an alternative review.

Terminology

Recommendation 5 recommends establishing written criteria to define the key terms “serious injury,” “significant destruction of property,” and “at or related to a U.S. mission abroad.” The 2013 OIG inspection team found that ambiguity in the terminology had led to their inconsistent application as criteria in decisions to convene ARBs.

ARB Implementation

Recommendations 10 and 11 recommend institutionalizing the oversight of the implementation of ARB recommendations as a responsibility of D/MR. M/PRI’s revision of 12 FAM 030 and addition of 12 Foreign Affairs Handbook (FAH)-12 now clearly delineate who is responsible for managing the ARB process and who is responsible for oversight of implementation of ARB recommendations. The Deputy Secretary’s responsibility for overseeing implementation of ARB recommendations places accountability for implementation at an appropriately high level in the Department.

Personnel Performance 

Recommendation 19 tasks M/PRI, in coordination with the Bureau of Human Resources and the Office of the Legal Adviser, to prepare clear guidelines for ARBs on recommendations dealing with issues of poor personnel performance. M/PRI has revised its standing guidance to ARB members, referring them to the Department’s new leadership principles in 3 FAM 1214, 4138, and 4532 when documenting instances of unsatisfactory performance or poor leadership. The Department further codified this ARB authority by expanding the list of grounds for taking disciplinary or separation action against an employee, including “conduct by a senior official that demonstrates unsatisfactory leadership in relation to a security incident under review by an [ARB] convened pursuant to 22 U.S.C. 4831.” In addition, in January 2013 the Department began seeking an amendment to the ARB statute (22 U.S.C. 4834(c)) to provide explicitly that unsatisfactory leadership may be a basis for disciplinary action and that the ARB would have the appropriate authority to recommend such action. No change to the statute has yet been made.

Strengthening Security at High-Risk, High-Threat Posts

New courses:  Guided by a panel of senior DS special agents and outside organizations, DS updated its former High Threat Tactical Course to create a suite of mandatory courses for DS agents assigned to HRHT locations, drawing on lessons learned from the attacks in Benghazi, Libya, and Herat, Afghanistan. The cornerstone of these courses is the “High Threat Operations Course” (HT-310), which, as of October 1, 2013, was made mandatory for all DS agents at grades FS 04 through 06 who are assigned to HRHT locations. Similar, but shorter duration courses (HT-310E and HT-315) are required for senior and mid-level DS agents assigned to such locations.

Marine Detachments

The Department, in coordination with DOD, has added 20 new MSG detachments, and Marine Corps Headquarters has created the Marine Security Augmentation Unit. Although some HRHT posts still lack MSG detachments, for example, because of the lack of host government approval, the Department has made progress in deploying new detachments and increasing the size of existing detachments.[…] The June 2013 revision of the memorandum of agreement also includes a revision of the MSG mission. In the previous version, the MSG’s primary mission was to prevent the compromise of classified information. Their secondary mission was the protection of personnel and facilities. In the revised memorandum of agreement, the mission of the MSG is to protect mission personnel and prevent the compromise of national security information.

DS Agents Embed With DOD Forces

An additional area of security improvement beyond reliance on the host government has been the Department’s closer relationship with DOD, whose personnel have been involved in every Department contingency operation at an HRHT post since the Benghazi attack. Furthermore, DS agents are now embedded in DOD expeditionary forces.

About That Zabul Incident

Recommendation 6 recommends that the Department seek greater assurances from the Department of Defense (DOD) in providing investigative reports of security-related incidents that involve Department personnel. The Department makes its requests via Executive Secretary memorandum to the equivalent DOD addressee, in accordance with 5 FAH-1 H-120. The DOD counterpart has been responsive in delivering requested materials in all the recent instances, including the incident in Zabul Province, Afghanistan. M/PRI will continue to monitor DOD responses to requests for reports in the future.

That means, the State Department now has the Army investigation report into the death of FSO Anne Smedinghoff and four others in Zabul, Afghanistan in April 2013.  See Zabul Attack: Spox Says State Dept Did Its Own Review, It’s Classified, and There’s Now a Checklist! Zabul Attack: Walking But Not Lost, More Details But Not Official; Plus Update on Kelly HuntArmy Report: Poor planning led to FSO Anne Smedinghoff and troops’ death in Afghanistan.

The Chicago Tribune FOIA’ed that Army report but did not make the document public. The State Department internal report of the incident as far as we are aware, remains Classified. Then State Department spox, Jennifer Psaki referred to “multiple investigations” in April 2014;  none publicly released.

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Related item:

ISP-C-15-33 | Compliance Followup Review of the Special Review of the Accountability Review Board Process | August 2015

 

State Dept on Former DAS Raymond Maxwell’s Allegations: Crazy. Conspiracy Theory. What Else?

— Domani Spero
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AP’s Matt Lee revisited the question of Raymond Maxwell’s Benghazi-related allegations during the September 16 Daily Press Briefing with State Department deputy spox, Marie Harf.

Here is the short version:

Screen Shot 2014-09-16 at 5.54.23 PM

 

Below is the video clip followed by an excerpt from the transcript where the official spox of the State Department called the allegations of one of its former top officials “a crazy conspiracy theory about people squirreling away things in some basement office and keeping them secret.” Crazy. Conspiracy. Of course!  Now stop asking silly questions and go home.

Over 20 years of service in the Navy and the diplomatic service and his allegation is reduced to a sound bite.  Mr. Maxwell is lucky he’s retired, or he would have been made to work, what was it, as a telecommuter?  Pay attention, there’s a lesson here somewhere.

In The American Conservative today, Peter Van Buren writes:

Maxwell impresses as a State Department archetype, dedicated to the insular institution, apolitical to the point of frustration to an outsider, but shocked when he found his loyalty was not returned.

He has revealed what he knows only two years after the fact. People will say he is out for revenge. But I don’t think that’s the case. As a State Department whistleblower who experienced how the Department treats such people, I know it’s not a position anyone wants to be in.
[…]
You don’t just wake up one morning and decide to turn your own life, and that of your family, upside down, risking financial ruin, public shaming, and possibly jail time. It is a process, not an event.

 

 

 

QUESTION: You wouldn’t – you would probably disagree, but anyway, this has to do with what Ray Maxwell said about the AR – the preparation to the documents for the – for submission to the ARB. You said yesterday that his claims as published were without merit and showed a – I think you said lack of understanding of the process, how it functioned.

MS. HARF: How the ARB functioned, a complete lack of understanding, I think I said.

QUESTION: Complete lack of understanding, okay.

MS. HARF: Not just a partial lack of understanding.

QUESTION: Okay. So what was it that – presuming he’s not making this story up about coming into the jogger’s entrance and going to this room where – I mean, I presume there’s nothing really sinister about collecting documents for the – for whatever purpose, but it —

MS. HARF: There may have been a room with documents —

QUESTION: Right.

MS. HARF: — being collected and – yes.

QUESTION: Okay. So what did he see if he did not see —

MS. HARF: I have no idea what he saw.

QUESTION: Was there, that you’re aware of – and I recognize that you were not here at the time and this was a previous Secretary and a previous Secretary’s staff, likely all of them previous although I don’t know that to be true, so you may not know. But I would expect that you have asked them for their account of what happened.

MS. HARF: Okay.

QUESTION: So was there some kind of an effort by member – that you’re aware of or – let me start again. Was there some kind of effort by State Department officials to separate out or scrub down documents related to the – to Benghazi into piles that were – did not – piles into – into piles that were separated by whether they made the seventh floor look – appear in a bad light or not? I’m sorry. I’m not – asking this in a very roundabout way. Were there —

MS. HARF: It’s okay, and we’re – and he was referring, I think, to the ARB process. Is that right?

QUESTION: Correct.

MS. HARF: Yeah.

QUESTION: Did people involved in preparing the documents for the ARB separate documents into stuff that was just whatever and then things that they thought were – made people on the seventh floor, including the Secretary, look bad?

MS. HARF: Not to my knowledge, Matt, at all. The ARB had full and unfettered access and direct access to State Department employees and documents. The ARB’s co-chairs, Ambassador Pickering and Admiral Mullen, have both repeated several times that they had unfettered access to all the information they needed. So the ARB had complete authority to reach out independently and directly to people. Employees had complete authority to reach out directly to the ARB. And they’ve said themselves they had unfettered access, so I have no idea what prompted this somewhat interesting accounting of what someone thinks they may have seen or is now saying they saw.

But the ARB has been clear, the ARB’s co-chairs have been clear that they had unfettered access, and I am saying that they did have full and direct access to State Department employees and documents.

QUESTION: Could they – could a group of people operating in this room in preparing for the ARB to look at the documents – could a group of people have been able to segregate some documents and keep the ARB from knowing about them —

MS. HARF: No.

QUESTION: — or seeing them?

MS. HARF: Not to my knowledge.

QUESTION: So it’s —

MS. HARF: The ARB, again, has said – and everything I’ve talked to everybody about – that they had unfettered access to what they needed.

QUESTION: Well, yeah, but you can’t need what you don’t know about, kind of, right? Do you understand what – see what —

MS. HARF: The ARB had full and direct access —

QUESTION: So they got to see —

MS. HARF: — to State Department employees and documents.

QUESTION: So there were no documents that were separated out and kept from the ARB that you – but you —

MS. HARF: Not that I’ve ever heard of, not that I know of. I know what I know about the ARB’s access. We have talked about this repeatedly.

QUESTION: Okay.

MS. HARF: And I don’t know how much clearer I can make this. I think, as there often are with Benghazi, a number of conspiracy theories out there being perpetrated by certain people. Who knows why, but I know the facts as I know them, and I will keep repeating them every day until I stop getting asked.

QUESTION: Okay. And does this apply to documents that were being collected in response to requests from Congress?

MS. HARF: Well, it’s a different process, right. It was a different process. And obviously, we’ve produced documents to Congress on a rolling basis. Part of that – because it’s for a different purpose.

QUESTION: Well, who – what was this group – well, this group of people in the – at the jogger’s entrance —

MS. HARF: In the – I love this – sounds like some sort of movie. Yes.

QUESTION: Well, whatever it sounds like, I don’t know, but I mean, we happen to know that there was an office that was set up to deal with this, understandably so because it required a lot of effort.

MS. HARF: Correct.

QUESTION: But that room or whatever it was, that office was only dealing with stuff for the ARB?

MS. HARF: I can check if people sat in the same office, but there are two different processes. There’s the ARB process for how they got their documents. There’s the Congressional process –we’ve been producing documents to them on a rolling basis —

QUESTION: I understand.

MS. HARF: — part of which in that process is coordinating with other agencies who may have equities in the documents, who may have employees who are on the documents. So that’s just a separate process.

QUESTION: Okay. So the people in that office were not doing anything with the Congress; they were focused mainly on the ARB?

MS. HARF: I can see who actually sat in that office. I don’t know. But what we’re focused on is the process, right, and the ARB had full and direct access to State Department employees and documents. The congressional process – as you know, we have been producing documents to Congress on a rolling basis —

QUESTION: Well, I guess that this mainly relates to the —

MS. HARF: — and there’s just different equities there.

QUESTION: This – the allegation, I think, applies to the ARB. But you are saying —

MS. HARF: Right, and I’m talking about the ARB.

QUESTION: — that it is impossible for a group of people to collect a stack of documents that say something that they don’t like and secret them away or destroy them somehow so that the ARB couldn’t get to them? Is that what you’re saying? It’s impossible for that to happen?

MS. HARF: I’m saying I wasn’t here then. What I know from talking to people here who were is that the ARB had full and direct access to State Department employees and documents.

QUESTION: Okay, but that doesn’t answer the question of whether there wasn’t —

MS. HARF: It does answer the question. (Laughter.)

QUESTION: Well – no, no, no, no. No, no, no. One of his allegations is that there were people who were separating out documents that would make the Secretary and others —

MS. HARF: So that the ARB didn’t have access to them.

QUESTION: Right, but – that put them in a bad light.

MS. HARF: But I’m saying they had access to everything.

QUESTION: Okay. But —

MS. HARF: So —

QUESTION: — do you know even —

MS. HARF: — I’m responding.

QUESTION: But even if it would’ve been impossible for them to keep these things secret, was there a collection of —

MS. HARF: This is a crazy conspiracy theory about people squirreling away things in some basement office and keeping them secret. The ARB had unfettered access.

QUESTION: Okay. I mean, Marie, I appreciate the fact that you’re taking that line. But I mean, there is a select committee investigating it.

MS. HARF: Well, it happens to be true. And tomorrow there will be an open hearing on ARB implementation, where I’m sure all of this will be discussed with Assistant Secretary Greg Starr.

QUESTION: Okay. And they will have – they will get the same answers that you’ve just given here?

MS. HARF: Let’s all hope so.

QUESTION: All right.

MS. HARF: Yes, of course.

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State Department Denies Raymond Maxwell’s Document Scrub Allegations. Peeeeriod!!!!

Domani Spero
[twitter-follow screen_name=’Diplopundit’ ]

 

We did a blog post yesterday on former NEA Deputy Assistant Secretary of State Raymond Maxwell and Benghazi (see Former State Dept DAS Raymond Maxwell Alleges Benghazi Document Scrub Pre-ARB Investigation).

A Fox News report cited State Department spokesman Alec Gerlach denying the allegations:

“That allegation is totally without merit. It doesn’t remotely reflect the way the ARB actually obtained information,” he said in an email. He explained that an “all-points bulletin”-type request went out department-wide instructing “full and prompt cooperation” for anyone contacted by the ARB, and urging anyone with “relevant information” to contact the board. 

“So individuals with information were reaching out proactively to the Board. And, the ARB was also directly engaged with individuals and the Department’s bureaus and offices to request information and pull on whichever threads it chose to. The range of sources that the ARB’s investigation drew on would have made it impossible for anyone outside of the ARB to control its access to information,” Gerlach said. He further noted that the leaders of the ARB have claimed they had unfettered access to information and people. 

Looks like that’s the press guidance.  Below is a clip of  the Deputy Spokesperson of the State Department, Marie Harf, responding to a question on Maxwell’s allegations using similar words — full indirect access, completely without merit, completely ill-informed, ARB co-chairs are of impeccable credentials, period. So she did not call the State Department’s former Deputy Assistant Secretary of State a liar, she just called him “completely uninformed.” Except that only one of the them was in that room.

Here is the text:

MS. HARF: The ARB had full and direct access to State Department employees and documents. Any accounts to the contrary, like that one you mentioned, are completely without merit, completely ill-informed. It was – these reports show a complete lack of understanding of how the ARB functioned. It collected its own documents directly from anybody in the Department. There was a Department-wide call for information to be given directly to the ARB; that’s what happened. The ARB’s co-chairs, Tom Pickering and Admiral Mike Mullen, both public servants of impeccable credentials, have both repeated several times that they had “unfettered access” to all the information they needed, period.

 

One could argue that until he was dragged into this Benghazi mess, Mr. Maxwell, a career diplomat of over 20 years was also a public servant of impeccable credentials.  One who initially did not even have access  to what was written about him in the classified report of ARB Benghazi.

Of course, as can be expected, the GOP is embracing this new revelation, and the Dems are simply shrugging this off as old news.  We know that Mr. Maxwell had a grievance case that was dismissed in June this year, we blogged about it. (See The Cautionary Tale of Raymond Maxwell: When the Bureaucracy Bites, Who Gets The Blame?).  But the allegation about this scrub had apparently surfaced about a year ago.  Rep. Jason Chaffetz, R-Utah, confirmed to FoxNews.com on Monday that Maxwell told him and other lawmakers the same story when they privately interviewed him last year about the attacks and their aftermath. Folks will question that because Mr. Chaffetz is not the most impartial individual to collaborate that story. But if there were Democrats present in that interview, would anyone be wiling to say anything, anyway?

Media Matters deployed its rapid response ninja calling Mr. Maxwell a “dubious source”:

Maxwell himself is a dubious source. He was placed on administrative leave after the Accountability Review Board’s investigation found a “lack of proactive leadership” and pointed specifically to Maxwell’s department, saying some officials in the Bureau of Near Eastern Affairs “showed a lack of ownership of Benghazi’s security issues.” A House Oversight Committee report released findings from the classified version of the ARB report, which revealed that the ARB’s board members “were troubled by the NEA DAS for Maghreb Affairs’ lack of leadership and engagement on staffing and security issues in Benghazi.”

 

Damn, where is that NEA DAS office for staffing and security issues in Benghazi here?

Extracted from DIPLOMATIC SECURITY | Overseas Facilities May Face Greater Risks Due to Gaps in Security-Related Activities, Standards, and Policies – GAO-14-655 June 2014 (click on image for larger view)

 

This will unfold with Raymond Maxwell either demonized or hailed a hero.   We don’t think he’s either; he’s just a dedicated public servant unfairly tainted by Benghazi who wants his good name back.  It looks like he’ll have to walk through fire before he gets a chance to do that.

We’ve heard about this document scrub allegation this past summer. We understand that there were others who were told about this incident last year. Some NEA folks reportedly also heard this story.

So why now?

Only Mr. Maxwell can answer that.  We hope he gets to tell his full story under oath before the Select Committee.

While we refused to see a conspiracy under every rug in Foggy Bottom, and we did not  support the creation of the Benghazi Select Committee, this changes it for us.

We just hope the Committee can keep its adult pants on and not turn the Benghazi hearings into a clownsport.

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State/OIG Releases Special Review of the Accountability Review Board Process

— By Domani Spero

The State Department’s Office of the Inspector General released its Special Review of the Accountability Review Board Process.  [See Special Review of the Accountability Review Board Process (ISP-I-13-44A)  [491 Kb]  Posted on September 25, 2013].  The inspection took place in Washington, DC, between April 15 and August 13, 2013. The names of the inspectors have been redacted per [FOIA Exemption (b) (6)]  which “exempts from disclosure records or information which if disclosed would constitute a clearly unwarranted invasion of personal privacy.” (Argh!!!)

The OIG report in short form says “The Accountability Review Board process operates as intended—independently and without bias—to identify vulnerabilities in the Department of State’s security programs.”

Among its key judgments are 1) the implementation of Accountability Review Board recommendations works best when the Secretary of State and other Department of State principals take full ownership and oversight of the implementation process; 2) per Benghazi ARB recommendation to enable future Boards to recommend that the Department of State take disciplinary action in cases of unsatisfactory leadership performance related to a security incident, State “plans to revise the Foreign Affairs Manual and request that Congress amend the applicable statute to incorporate this change.”

According to the report, the OIG team interviewed the four secretaries who held office between 1998 and 2012. “All stated that the ARB process was an effective tool that could provide the Department with important lessons for enhancing the security and safety of U.S. diplomatic facilities and employees. The interviews revealed that the secretaries had engaged actively in the ARB process and had taken the ARB and the resulting recommendations with utmost seriousness.”

The report does not include the names of the interviewees but the four SecState would have been Madeleine Albright (1997-2001), Colin Powell (2001-2005), Condoleezza Rice (2005-2009), and Hillary Rodham Clinton (2009-2013)

The very same report notes that the “OIG team was not able to identify an institutionalized process by which the Secretary or Deputy Secretary engaged beyond the drafting and submission of the Secretary’s legislated report to Congress.”

Two former secretaries “raised questions as to whether the process is sufficiently robust for handling investigations of major, complex incidents, especially those in which the interests and actions of several agencies were involved.”

The report further noted that all four former secretaries described the inherent tug of war between risks and rewards as the Department conducts its business in dangerous places around the world:

Typically, the strong preference among those responsible for advancing U.S. policy objectives is to keep posts open whenever possible, even in dangerous places, while those officials responsible for security give priority to the risks and the possibilities for harm. Within the Department, these sometimes contradictory positions tend to be represented respectively by the Under Secretary of State for Political Affairs and the Under Secretary of State for Management. For that reason, two former secretaries were strongly of the view that responsibility for reconciling these perspectives should be vested at the deputy secretary level. Indeed, one former Secretary told the OIG team that this concern was at the heart of the original proposal to create a second deputy secretary position, one that would have as a principal responsibility overseeing and reconciling these competing interests of policy and security on a daily basis.

The second deputy secretary position was first filled in 2009 during Secretary Clinton’s tenure.  The State Department describes the position as the Chief Operating Officer of the Department, but the official title is Deputy Secretary for Management and Resources (D/MR).   The position “serves as principal adviser to the Secretary on overall supervision and direction of resource allocation and management activities of the Department.” The job summary posted online makes no special mention of this position as the arbiter when the competing interests between policy and security comes to the fore.

From 2009-2010, Jacob J. Lew was D/MR and oversaw the civilian surge in Afghanistan. From 2011-2013, Thomas R. Nides was D/MR and delivered State’s first Quadrennial Diplomacy and Development Review (QDDR).  Most recently, President Obama announced the nomination of Heather Higginbottom, the new Counselor in the Office of the Secretary of State to be the third Deputy Secretary of State for Management and Resources.

We hope to do a follow-up post on the ARB Permanent Coordinating Committee and how come no ARB was convened following the attack at the US Embassy in Tunis in September 2012 despite “significant destruction of property.”

 (O_O)

Snapshot: Accountability Review Boards 1998-2012

— By Domani Spero

Extracted from State/OIG report

Extracted from State/OIG report

We’ve listed 18 since 1986 when the ARB was first mandated under the Omnibus Diplomatic Security and Antiterrorism Act of 1986. See 18 State Dept Accountability Review Boards Convened Since 1986 – Only Two Publicly Available.

(O_O)