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

 

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

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

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

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

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

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

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

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

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

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

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

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

@StateDept’s Pompeo Muscle Desperately Throws Kitchen Sink at Ousted IG Steve Linick

Since the U.S. Senate majority doesn’t take anything seriously these days, State/OIG Steve Linick will officially be terminated on June 15, 30 days after Trump sent his congressional notification. And yet, on June 8th, the Undersecretary for Management Brian Bulatao fired two letters – one to Linick’s lawyers, and another to the Council of the Inspectors General on Integrity and Efficiency ( CIGIE) asking for an investigation into the conduct of the soon to be former inspector general. As a CNN reporter pointed out, the State Department could have requested the CIGIE investigation at any point before Pompeo asked Trump to fire Linick. It did not. The State Department is asking for it now, the week that Linick officially leaves his job.
Why?
It looks like the State Department is throwing the kitchen sink full of dirty dishes at IG Linick, hoping one of those dirty dishes would hit him on his way out. We’re just waiting for one of these champions of diplomacy to turn around and say from the podium, “see, that dirt on his shirt? That’s the reason no one should pay attention to whatever he was investigating before he was fired.”
Apparently, faulting Linick for not promoting Pompeo’s professional ethos statement did not quite do the trick. So the 7th floor folks, they’re hoping this one would work, ey? Has somebody there already created a PowerPoint presentation on “How to be an Agile  Champion of Diplomacy Watchdog and Just Cover Your Eyes?”
We’d like to see that, please.
Meanwhile, the U.S. Senate yawns and scratches its bum. During his tenure as State Department watchdog, Linick has probably alienated enough Democrats in Congress during the email mess, and alienated enough Republicans in Congress during the Ukraine mess. So, that’s that.
Unfortunately, in the constant breaking news cycle we are currently living, the world will move on in short order. Media folks will report on other outrages, big and small that occurs on a daily basis.  Our country’s march towards a full blown banana republic continue. Still. We won’t forget that Mr. Linick was fired for doing his job. We’d take his word over any character from this 7th Floor of the Foggiest Bottom.

The Bulatao- CIGIE letter is here: https://www.scribd.com/document/465038049/CIGIELetter-June82020

The Bulatao-Linick’s lawyer letter is here: https://www.scribd.com/document/465025243/Bulatao-Linick

Interagency People to SIGAR: Hit the road John and don’t you come back no more, no more, no more …

Posted: 2:26 am PT
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Last year, the NYT covered SIGAR’s John Sopko.

This past Labor Day, there was this big splash, quite an effort here from a dozen or so folks from three agencies:

Detractors describe Sopko as “egomaniacal,” “petty,” “a bully” and “the Donald Trump of inspectors general.” But Sopko has publicly brushed off — even relished — the criticism, arguing that it’s his job to shine a light on mistakes made by “bureaucrats” who would prefer that his reports “be slipped in a sealed envelope in the dead of night under the door — never to see the light of day.”

“My job is to call balls and strikes,” Sopko once told NBC News. “Nobody likes the ump.”

Here’s SIGAR Sopko previously discussing his media strategy:

Then here’s one view from Afghanistan:

John F. Sopko was appointed Special Inspector General for Afghanistan Reconstruction on July 2, 2012 by President Obama. In his last congressional post, Mr. Sopko was Chief Counsel for Oversight and Investigations for the House Committee on Energy and Commerce, chaired by Rep. John D. Dingell (D-Mich.), during the 110th Congress.

In the fall of 2010, a bi-partisan group of senators and POGO called for the removal of Mr. Sopko’s predecessor. At that time, POGO reported that “the SIGAR office has largely been considered a disappointment, and numerous deficiencies in its operations and audit reports have been identified.” The POGO investigator also said at that time that the “office has produced milk-toast audits that have not inspired congressional confidence.”  In January 2011, the previous inspector, Arnold Fields, a retired Marine major general, resigned, per WaPo “after a review by the Council of Inspectors General found that many of his office’s audits barely met minimum quality standards and that Fields had not laid out a clear strategic vision.”

In accordance with Government Auditing Standards, SIGAR is required to undergo a periodic external quality control review (peer review). SIGAR’s latest peer review, which was conducted by the Council of Inspectors General on Integrity and Efficiency (CIGIE) was publicly released on March 30, 2016:

The NASA Office of Inspector General reviewed the system of quality control for the Special Inspector General for Afghanistan Reconstruction (SIGAR) Auditing Division in effect for fiscal year 2015. As indicated in our February 25, 2016, report, we assigned SIGAR a “pass” rating. During our review, we found three issues that were not of sufficient significance to affect our opinion on this rating but that require your attention. We believe these issues could be addressed through simple revisions to the policy manual.

So SIGAR was reviewed by IG peers and got a pass rating!  Imagine that.

Mr. Sopko’s deputy famously said once,“Some people are unhappy with the fact we get press coverage, even though our two-person press shop pales in comparison to the squadrons of PR people at Embassy Kabul, ISAF, or DOD. Some people think we’re doing this to attract attention and gratify our egos. They are mistaken. Neither John nor I are angling for another government job, movie role, book advance, or trying to become the next YouTube sensation.”

We should note that when we request information from SIGAR, we always get a response. When we request information from US Embassy Kabul, our emails just get swallowed by black holes of indifference.

 

Related item:

Letter of Comment on the System of Quality Control for the Audit Organization of the Special Inspector General for Afghanistan Reconstruction (PDF) March 2016

 

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Why didn’t the State Dept have a permanent IG from 2008-2013? Late, but a senator wants to know.

Posted: 12:13  am EDT
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Senate Judiciary Committee chairman Chuck Grassley has been keeping the records folks awake in Foggy Bottom. Last week, he directed his attention on the missing permanent IG at the State Department from 2008-2013. Over two years late but this gotta be good.

The previously Senate-confirmed OIG for the State Department was Howard J. Krongard who announced his resignation on December 7, 2007 and left post on January 15, 2008.  President Obama nominated the current IG Steve Linick in June 2013. The U.S. Senate confirmed his nomination on September 17, 2013 and Mr. Linick officially started work at the State Department on September 30, 2013.  (By the way, on October 1, the federal government went on shutdown and Mr. Linick’s office was one of the very few offices at the State Department whose employees were put on furlough).  The vacancy at the IG’s office lasted more than five years before President Obama’s nominee finally took office.  (See Senate Confirms Steve Linick; State Dept Finally Gets an Inspector General After 2,066 DaysAfter 1,989 Day-Vacancy — President Obama Nominates Steve Linick as State Dept Inspector General).

In any case, Senator Grassley now wants to know why the IG vacancy at the State Department lasted, by official count, 2,071 straight days. Late but okay, we’d like to know, too.  The senator wrote a letter to Michael E. Horowitz, the Chair of Council of the Inspectors General on Integrity and Efficiency (CIGIE) and to Secretary Kerry. Excerpt below:

Congress needs a better understanding of how and why the State Department lacked a permanent IG who could serve as an independent watchdog for 2,071 straight days. Accordingly, please respond to the following by September 11, 2015:

CIGIE Chair Horowitz: Assuming that CIGIE prepared a list of recommended candidates to fill the IG vacancy at the State Department created upon the departure of former IG Howard Krongard in 2008:

a. Who were the candidates?
b. When were they recommended?
c. Who sent the slate of recommendations from CIGIE to the White House?
d. Who received the slate of recommendations at the White House from CIGIE?

e. What was the response, if any, from the White House regarding the slate of candidates?
f. Who, if anyone, at CIGIE received the White House’s response?
g. When and how was any such response from the White House received?

h. Please provide all records from any CIGIE official at the time relating to communications with the White House about the IG vacancy or potential candidates to fill the vacancy.
i. Did CIGIE provide candidate names to the State Department? If so, please provide the Committee with all records from any CIGIE official at the time relating to communications with the State Department about the IG vacancy or potential candidates to fill the vacancy.

Secretary Kerry: Please provide the Committee with all State Department records related to the IG vacancy or potential candidates to fill the vacancy, including communications between and among former Secretary Clinton, her senior staff, or any State Department personnel, any CIGIE official, or any White House official.

In the letter’s footnotes, Senator Grassley cites the testimony of POGO’s Danielle Brian on “Watchdogs needed: Top Government Investigator Positions Unfilled for Years, June 3, 2015.”  POGO has previously questioned the independence of the State Department’s acting IG. POGO also published a letter from “very concerned employees” (pdf) dated January 12, 2008 sounding the alarm on the appointment of an acting IG. Senator Grassley is listed as one of the addresses of that letter.

Senator Grassley’s IG vacancy letter cites two cases:

1) The “appearance of undue influence and favoritism” in departmental investigations of three allegations related to Diplomatic Security investigations (see Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security | January 2015 (pdf).

[ As an aside — the original OIG draft/report on DS investigations dates back to 2012 and was made part of the Higbie v. Kerry, a title VII employment discrimination case in Texas. That case was subsequently dismissed by the district court and affirmed by the Court of Appeals (pdf) in March 2015.  But in 2013, the government sought to exclude the “improperly obtained documents” that Higbie obtained via a subpoena from a retired OIG employee, Aurelia Fedenisn. The government asserted that the documents, including the draft report, were improperly retained by Fedenisn after her employment ended in 2012.  We’re reminded of this case in relation to the IG vacancy because the Washington Examiner recently reported that the then acting IG had sought to keep early drafts of a controversial OIG report under wraps in the Higbie case in federal court in 2013. Note that the contents of that draft report have already circulated and were reported on by the press in June 2013].

2) Allegations related to “protected disclosures” at  the U.S. Consulate General in Naples Italy, a case currently in the court system  (see Howard v. Kerry: Court Denies Motion to Dismiss One Retaliation Claim.

Senator Grassley’s letter is available to read here: 2015-08-27 Grassley | CEG to CIGIE and State Dept (IG Vacancy)

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Ex-USAID/OIG Pakistan: Finding fully developed for final report, whatchatalkinbout?

— Domani Spero
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We previously blogged recent items about USAID (see below):

In response to WaPo’s Oct. 23 article “USAID watchdog said to alter reports,” USAID/OIG has released a two-page statement dated October 24 citing its “extensive track record of providing independent, robust oversight.” It has tweeted that October 24 statement multiple times since it was first linked to on Twitter on October 27.

Screen Shot 2014-11-03

 

Yesterday, WaPo published a letter to the editor from Joseph Farinellaa senior FSO who was USAID/OIG director in Pakistan:

The Oct. 23 front-page article “USAID watchdog said to alter reports” cited a Sept. 30, 2012, inspector general’s report on an audit of a U.S. Agency for International Development assistance program in Pakistan. I was the inspector general director in Pakistan whose office conducted the audit. The article cited a draft audit finding placed in a confidential “management letter” rather than in the final published report. The inspector general’s chief of staff said that this was done because our work was not supported by evidence and more time was needed to develop information for a final report.

I recently retired as a senior Foreign Service officer with more than 40 years of worldwide audit experience in several organizations. Our finding on the program not operating efficiently and effectively was fully developed for inclusion in the final report. We provided examples of funds not used for main program goals, why this happened and the negative effect on the program.

Instead of a fully developed finding with recommendations in a published audit report, information was provided to the mission director in a letter. Sen. Tom Coburn (R-Okla.) said it all: “That’s ridiculous. The finding shouldn’t have been removed.”

Okay, maybe the USAID/OIG or his chief of staff would like to take a stab at this again?

Once more with feelings.

It seems to us that there is an easy remedy here for USAID/OIG if it really wishes to put these allegations to rest.

  • First, release all the draft audit reports as a companion to each of the final reports that are the subject of these allegations. It will give us, the paying public, a way to gauge just how much sanitation work were or were not done with these reports.
  • Second, USAID/OIG can release all the confidential “management letters” or “management alerts” it issued to USAID management, and all follow-up actions.  The October 24, 2014 USAID/OIG statement  says that “OIG’s current policy and practice is to post all management letters on its public Web site. This policy has been applied to management letters issued from April 2014 forward.” Okay, but that’s not any help with these allegations as there’s no way to tell how many “management letters” have actually been issued by USAID/OIG previous to April 2014. The allegation is that audit findings were placed on management letters that are not accessible to the public. So let’s see those management letters online and see which audit findings were not supported by evidence.

These allegations go to the heart of USAID/OIG’s mandate as an independent overseer of the people’s money.  Here now, we have an ex-auditor for a specific program publicly contradicting USAID/OIG’s official spin, not to mention the multiple whistleblowers who also came forward. Sorry, but a two-page statement touting the office’s “independent and robust oversight” will not be good enough to shut this down.

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SIGAR: Not angling for another gov job, movie role, book advance or to be next YouTube hottie

Domani Spero
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“Unless a piece of information is legitimately classified or otherwise restricted, it ought to be available, even if disclosure is not technically required. And, when disclosure is legally required, as by the IG Act, then agency refusal to provide timely access to the data is intolerable.” — DIG Gene Aloise, SIGAR 

 

Patrol Boat Purchased for the Afghan National Police (SIGAR photo)

A BOAT, A BOAT! Patrol Boat Purchased for the Afghan National Police (SIGAR photo)

A couple of days ago, Gene Aloise, the Deputy Special Inspector General for Afghanistan Reconstruction (SIGAR) was at the CIGIE Federal Audit Executive Council Annual Conference in Virginia and gave a speech on “Transparency—For the IGs and the Public Interest.” He was standing in for John Sopko, the IG, who apparently is still recovering from knee surgery.  Excerpt below:

You may have noticed that many SIGAR reports have made the news. One reason is that we publish, post, tweet, and otherwise publicize virtually everything we do.

Some people are unhappy with the fact we get press coverage, even though our two-person press shop pales in comparison to the squadrons of PR people at Embassy Kabul, ISAF, or DOD. Some people think we’re doing this to attract attention and gratify our egos.

They are mistaken. Neither John nor I are angling for another government job, movie role, book advance, or trying to become the next YouTube sensation.

We simply follow the basic principles that: (1) unless it’s a security risk or classified, we publish it; and(2) if it’s worth publishing, it’s worth publicizing.

We seek publicity because publicity has impact.

Very few Americans have seen the Health and Human Services Department IG reports on billing fraud against Medicare for motorized wheelchairs. But millions of people have had the chance to read, in print or online, the Washington Post’s 4,000-word illustrated story on August 16 that dramatized and humanized the problem.

The Post noted that Medicare has paid out more than $8 billion for motorized wheelchairs for 2.7 million people, even though a large but unknown portion of the payments involved offers of free wheelchairs, recruitment of people with no mobility problems, and prescriptions faked by corrupt doctors or even by scammers using the names of dead doctors.

That’s the kind of story that gets attention. Editorial writers, ordinary citizens, congressional staff, and think-tank researchers pick up on such revelations and weigh in. Members of Congress call hearings and draft legislation. Agency heads eagerly or reluctantly draft responses, policies, and testimony. With any luck, things get better, whether systematically or a bit at a time.

Let’s face it: No matter how good an IG audit, GAO report, or commission finding may be, if it falls into a black hole and molders unnoticed while Washington bustles on, it helps no one.

Widespread dissemination of IG reports can promote the following good outcomes:

  • Publicity brings problems to the attention of senior leaders whose information gatekeepers may not have relayed unwelcome news.
  • Exposing incidents of waste can motivate people to do the right thing, whether sharpening their own performance or calling out problems.
  • Publicity may prompt managers to take corrective action before they get a nasty memo from the boss.
  • Publicity can deter government contractors from cutting corners, using substandard materials, or tolerating unsafe practices if they fear they may not get paid, or be debarred.
  • Publicity can deter fraud. When potential wrongdoers read about a federal civilian, military member, or contractor going to jail and paying big fines for taking kickbacks or bribes, or stealing, or smuggling, they may decide not to give in to temptation.
  • Publicity can encourage people to come forward to the IG community. Some of our best tips and other information have come from senior officials, including generals and ambassadors, who approach us here or in the field, or use the SIGAR fraud hotline.
  • Publicity that points out successes and best practices can encourage agencies to continue improving their own performance, or to follow the example others have set.
  • Finally, and perhaps most importantly, publicizing our work gives the American taxpayer—and congressional appropriators—confidence that someone appointed by the President of the United States is looking out for how their money is spent.

As our friends in the armed services would say, publicity is a force multiplier for the substantive results of your hard work.

When you turn up an important finding that involves serious threats to mission, to lives, to public funds, or the public interest, don’t be shy about spreading the word beyond the usual channels of distribution. It’s legitimate, it’s helpful, and—even if some officials get peeved at you— it’s a public service.

Read the whole thing here.

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What’s Missing From the Accountability Review Board Reform Act of 2013 (H.R. 1768)

As we have blogged here previously, U.S. Rep. Ed Royce (R-CA), Chairman of the House Foreign Affairs Committee (HFAC), introduced legislation on April 26, 2013, to increase the independence and transparency of future Accountability Review Boards (ARB). (See HFAC Chairman Ed Royce Introduces “Accountability Review Board Reform Act of 2013” (H.R. 1768)).

The bill currently has 22 co-sponsors and has been referred to the House Committee on Foreign Affairs.

The current regs gave the Secretary of State the authority to appoint four out of five members of the ARB.  Under the proposed legislation, the Secretary of State may now only appoint two members of the Board:

“A Board shall consist of five members, two appointed by the Secretary of State, two appointed by the Chairperson of the Council of Inspectors General on Integrity and Efficiency (the CIGIE Chairperson), and one appointed by the Director of National Intelligence.”

On the ARB Staff:

“(2) Staff.–

“(A) In general.–A Board may hire staff to assist the Board, and may have any Federal Government employee assigned or detailed to such Board, with or without reimbursement, to assist such Board. Any such assignee or detailee shall retain without interruption the rights, status, and privileges of his or her regular employment.

“(B) Special rule.–Any individual who is hired, assigned, or detailed to assist a Board under subparagraph (A) shall be subject to the rule relating to the avoidance of conflicts of interest under subsection (a) in the same manner and to the same extent as a Member of such a Board is subject to such avoidance under such subsection.

“(C) Office of the Inspector General.–To the maximum extent practicable, individuals assisting the Board shall be employees of the Office of the Inspector General of the Department of State.”.

Here are the ARB staff that may potentially be affected if the ARB Reform Act is passed by the House, the Senate and signed into law:

  • Under current ARB regs, the ARB Staff Officer is a member of the M/PRI staff appointed by the Director of the Office of Management Policy, Rightsizing and Innovation (M/PRI), an office that reports directly to the Under Secretary for Management
  • An ARB Executive Secretary is also appointed by M/PRI when an ARB is convened.  The Executive Secretary coordinates and facilitates the work of that Board. The Executive Secretary will normally be a senior Foreign Service officer or a retired senior Foreign Service officer who is recommended by DGHR/CDA.  DGHR is an office an office that reports directly to the Under Secretary for Management.
  • Experts, consultants and support staff: As determined by the Board the Department will provide the necessary experts, consultants and support staff to enable the Board to carry out its duties effectively and efficiently.
  • S/ES-EX will provide a full-time dedicated administrative support coordinator (detailee or WAE) to assist the Executive Secretary of the ARB, as formalized in Administrative Notice No.05-02, dated February 22, 2005.

H.R. 1768 also addresses conflicts of interest and recusals:

(c) Conflicts of Interest.–Section 302 of the Omnibus Diplomatic Security and Antiterrorism Act is amended by adding at the end the following new subsections

 “(c) Avoidance of Conflicts of Interest.–

“(1) In general.–The Secretary of State, the CIGIE Chairperson, and the Director of National Intelligence may not appoint any individual as a member of a Board if the Secretary, the CIGIE Chairperson, or the Director, as the case may be, determines that such individual has a conflict of interest concerning a person whose performance such Board reasonably could be expected to review.

   “(2) Declining appointment.–An individual shall decline appointment to membership on a Board if such individual has actual knowledge of a conflict of interest concerning a person whose performance such Board could reasonably be expected to review.

  “(3) Recusal from particular activities.–A member of a Board shall recuse him or herself from any Board activity, interview, deposition, or recommendation concerning a person with whom such member has a conflict of interest. Such member shall promptly notify the other members of such Board of any such recusal, but need not state the basis therefor.

The current regs specifies that the ARB report on its findings and program recommendations to the Secretary of State.  To those who are repeatedly harping why the Benghazi ARB did not interview Secretary Clinton, this might be the best answer.  The ARB is supposed to submit its report to the Secretary of State. Does it make sense for the ARB to interview the Secretary when the report is to be submitted to the same Secretary that convenes the Board?

12 FAM 036.3 also specifies that “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. Note that the regs did not say the Secretary must provide the ARB report to Congress, only that he/she must report to Congress on the recommendations and the actions taken. There is nothing on the regs that precludes the Secretary of State from sharing the ARB report with Congress, but she is not required to do so under current laws.

On its program specification,  H.R. 1768 changes that and mandates that the ARB submits its findings and recommendations to the Secretary of State and Congress.

“(1) In general.–Except as provided in paragraph (2), not later than 90 days after a Board is convened in a case, such Board shall submit to the Secretary of State and Congress its findings (which may be classified to the extent determined necessary by the Board), together with recommendations as appropriate to improve the security and efficiency of any program or operation which such Board has reviewed.

And that’s all good improvement, but here is what’s missing —

A standing committee within the State Department actually assesses whether an ARB should be convened or not.  Whether the Secretary of State convenes an ARB or not depends on the  the recommendation of this standing committee.  Per 12 FAM 032.1, “the ARB Permanent Coordinating Committee (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.”

The ARB Permanent Coordinating Committee (ARB/PCC) according to the FAM is composed of the following members:

(1) The Director of the Office of Management Policy, Rightsizing and Innovation (M/PRI), who will chair the Committee; [M/PRI reports to the Under Secretary for Management]

(2) The Assistant Secretary for Diplomatic Security or the Principal Deputy; [Diplomatic Security reports to the Under Secretary for Management]

(3) The Senior Deputy Assistant Secretary for Intelligence and Research; [INR reports directly to the Secretary]

(4) The Coordinator for Counterterrorism [reports to the Under Secretary for Civilian Security, Democracy, and Human Rights]

(5) The senior deputy assistant secretary (or secretaries, as appropriate) of the relevant regional bureau(s); (regional bureaus report to the Under Secretary for Political Affairs]

(6) One representative designated by and representing the DNI; and

(7) The Deputy Assistant Secretary for Visa Services [Consular Affairs reports to the Under Secretary for Management]

The FAM is clear that 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.”

An ARB is convened when there is serious injury, loss of life, or significant destruction of property at, or related to, a United States Government mission abroad, and in any case of a serious breach of security involving intelligence activities of a foreign government directed at a United States Government mission abroad.

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US Embassy, Tunisia

And yet in the aftermath of the 2012 mob attacks of U.S. embassies particularly in Tunisia, Egypt, Sudan and Yemen where there were significant destruction of USG properties, no ARB was convened.

Why?

The destruction of property was not just the embassy buildings and facilities but also includes a number of  torched armored vehicles. We don’t know what type of armored vehicles were lost during last year’s attacks, but armored vehicles used in Iraq in 2005 cost at least $205,742 each.

Some of these attacks went on for hours with no help from the host country government.  Some embassy employees thought they were going to die and called loved ones to say their goodbyes.

So it makes us wonder — was the ARB/PCC  blind to what happened at these posts, and thus did not make a recommendation to convene a Board?

Or did the the ARB/PCC thought convening an ARB amidst the Benghazi debacle and the Benghazi ARB was a tad too much for the agency to handle that no ARB was recommended?

If Congress must reform the Accountability Review Board to improve its effectiveness and independence, it ought to start with a look  at the Permanent Coordinating Committee, its composition and recommendation process on whether an ARB is to be convened or not.
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State Dept’s Inspector General to Conduct a “Special Review” of the ARB Process, Not/Not the ARB Panel

According to thehill.com, the State Department’s Office of Inspector General notified the State Department on March 28 that it will be conducting a “special review” of the process that the department’s Accountability Review Board (ARB) used to probe security lapses prior to and during the terrorist attack:

Doug Welty, a spokesman for the IG’s office, said the office is responsive to lawmakers’ concerns; he said this is the first time the office will review an ARB process, although it has in the past reviewed how well the State Department has followed through on the recommendations of other review boards formed after security breaches.

The review will examine “the effectiveness and accountability of the process and the resulting implementation of the recommendations,” Welty said. He couldn’t specify a time frame, but said the results would be made public: “It will take the time it needs to take to do a reliable job.”

At a State Department briefing last year, Pickering defended the ARB’s approach. He said the panel fixed responsibility “at the Assistant Secretary level, which is in our view the appropriate place to look, where the decision-making in fact takes place — where, if you like, the rubber hits the road.”

Fox News originally reported this and found an unnamed senior State Department official to comment on this development:

[A] senior State Department official told Fox News the IG probe is not a “formal investigation” but rather a review process, and one, moreover, that will examine previous ARBs in addition to the one established after Benghazi.

The official noted that the department had published a notice early on instructing employees on how they could furnish information to the ARB for Benghazi, and that the panel ultimately interviewed more than 100 witnesses.

The original law that established accountability review boards mandates that they act completely independently, the official said, adding that the department in this case neither sought nor enjoyed any influence over the panel’s work.

In any case, Fox News headline screams “State Department’s Benghazi review panel under investigation, Fox News confirms.

So we checked with State/OIG and was told by Douglas Welty that this is a  “special review of the Accountability Review Board process.” He pointed out that when he spoke with the reporter at Fox, he specifically said this was not an “investigation.” “When OIG uses the term “investigation,” it means we are looking into the possibility of criminal activity,” according to Mr. Welty. 

We asked Mr. Welty if this special review was specifically requested by a congressional representative or some other entity and we’re told the following:

We already had plans to conduct a review of the ARB process when we responded to Senators Lieberman’s and Collins’ post-Benghazi inquiry last year. Our current review is not a response to or the result of the recent congressional investigation or upcoming congressional hearing on the Benghazi attacks.

Reviews, inspections and audits of security issues is an important part of our oversight work. Whenever appropriate, we will check on the status of recommendations made by ARBs, as we did in our Jeddah and “mantraps” reports. The report will note if an ARB recommendation has been implemented. If so, how, and if in process, what is being done. If it has not been implemented and no progress has been made, then that will be noted, as well.

In late December, Senate Homeland Security and Governmental Affairs Chairman Joe Lieberman, ID-Conn., and Ranking Member Susan Collins, R-Maine released Flashing Red: A Special Report On The Terrorist Attack At Benghazi.

We did, in fact, blog recently about the March 2013 OIG’s review of ARB Jeddah (see 2005 Jeddah ARB Recommended “Remote Safe Areas” for Embassies – Upgrades Coming … Or Maybe Not). That’s the only OIG review of a previous ARB that we are aware of.

We would be interested, of course, to see what the OIG finds in its review of the ARB process. However, there are a couple of things that we are sort of curious about.   One is the fact that the State Department has not had a permanent IG since 2008.  If you look at this org chart, the IG (that is the Deputy IG) reports directly to the Secretary of State. We are curious how often does the IG sits with the Secretary of State – monthly, quarterly, and so on and so forth?  Two, we’re wondering if in practice the IG actually deals more directly with “M” (the Under Secretary of Management) rather than the Secretary of State?  We anticipate that whether justified or not, these two issues may bite in the post-IG review.

Also, given how politicized Benghazi has become, we’re also wondering if it might have been more wise for State/OIG to work with Council of the Inspectors General on Integrity & Efficiency (CIGIE) on this ARB process review.

Of course, even with that, there’s no way to tell if this would end the Benghazi controversy. In fact, our guess is we would be hearing about Benghazi for months to come. Whether or not all the hearings and reports would actually amount to improved security and better risk planning/mitigation for our people overseas remains a big question.

–DS