Posted: 12:57 am ET
Posted: 12:57 am ET
Posted: 1:56 am ET
The Federal Vacancies Reform Act of 1998 (Vacancies Reform Act) was enacted on October 21, 1998. (Pub. L. No. 105 -277, Div. C, tit. 1, §151, 112 Stat. 2681-611-16, codified at 5 U.S.C.§§3345-3349d.) The provides new rules for the temporary filling of vacant executive agency positions that require presidential appointment with Senate confirmation. According to the Government Accountability Office, under the Act, an acting officer may serve in a vacant position for no longer than 210 days, with adjustments to be made if the President submits a nomination to fill the position and under other specified circumstances.
The Act requires executive departments and agencies to report to the Congress and to the Comptroller General (GAO) certain information about a vacancy immediately upon the occurrence of events specified in the Act. The Act also provides that the Comptroller General report to specified congressional committees, the President, and the Office of Personnel Management if the Comptroller General determines that an acting officer is serving longer than permitted by the Act.
The GAO notes that its database includes only vacancy information that federal departments and agencies have actually submitted to GAO and may not be complete or the most up-to-date information regarding those vacancies.
The Partnership for Public Service’s appointment update notes that 48 positions have been referred to the Senate Foreign Relations Committee, 16 have been reported out, and only 9 have been confirmed as of July 31, 2017. PPS’ Political AppointeeTracker for the State Department includes 131 positions.
The State Department has only 36 vacant positions reported to the GAO. The GAO database for State Department includes one filled vacancy, the Secretary of State, zero officials with pending nominations, 24 positions with identified acting officials (some of those listed have since left the positions), and the rest are positions with no acting officials.
Here’s the relevant part going forward with a ghost town at the top floors of the State Department, via the GAO:
If a vacancy exists during the 60-day period beginning on a transitional inauguration day, the 210-day period begins 90 days after such transitional inauguration day or the date the vacancy occurs, whichever is later. 5 U.S.C. § 3349a(b). The State CFO position became vacant on January 20, 2009, the transitional inauguration day. Accordingly, the 210-day period began to run 90 days after January 20, 2009—on April 20, 2009—and ended on November 16, 2009. Consequently, the position should have been vacant beginning November 17, 2009, until June 12, 2012, when the position was filled. […] We have previously determined that using the acting title of a position during the period in which the position should be vacant violates the time limitations in the Vacancies Reform Act.
The item above is from the GAO report on the Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998—Chief Financial Officer, Department of State when James Millette served as Acting CFO at State after November 16, 2009, through on or about November 15, 2011.
Posted: 3:48 pm PT
Last month, we wrote about the 1974 Congressional Budget and Impoundment Control Act; the Act inspired by then President Nixon’s refusal to disburse nearly $12 billion of appropriated funds by Congress.
Today, Politico is reporting that Secretary Tillerson is resisting the pleas of State Department officials to spend nearly $80 million allocated by Congress for fighting terrorist propaganda and Russian disinformation.
“It is highly unusual for a Cabinet secretary to turn down money for his department. But more than five months into his tenure, Tillerson has not issued a simple request for the money earmarked for the State Department’s Global Engagement Center, $60 million of which is now parked at the Pentagon. Another$19.8 million sits untouched at the State Department as Tillerson’s aides reject calls from career diplomats and members of Congress to put the money to work against America’s adversaries.”
The $60 million will expire on Sept. 30 if not transferred to State by then, current and former State Department officials told POLITICO.
Last month, Republican Sen. Rob Portman of Ohio pressed Deputy Secretary of State John Sullivan on whether Tillerson considers the Global Engagement Center a priority and urged that hiring caps be lifted so the center can expand.
We anticipate that Congress could allocate more funds for the State Department than requested by the Trump Administration. Given that the Administration has proposed some 30% cuts in its own request, it will be worth watching what Tillerson will do with the bulk of appropriated funds that the Administration did not ask for. The reported $80 million for the State Department’s Global Engagement Center that the State Department has not released could be the first test.
The State Department could violate the 1974 Impoundment Control Act (ICA) if it refuses to obligate funds for policy reasons without President Trump sending a special message to both Houses of Congress. It is also considered a violation is if it sets aside funds or intentionally slows down spending, or if it proposes a deferral but the timing is such that funds could be expected to lapse before they could be obligated.
Under ICA, an impoundment is any action or inaction by an officer or employee of the federal government that precludes obligation or expenditure of budget authority. The Act applies to salaries and expenses appropriations as well as program appropriations.
The Impoundment Control Act of 1974 (ICA) provides authority for agencies to “impound” or withhold the obligation of funds in certain circumstances. There are two ways for withholding funds, through a deferral or through proposed rescission. In both both cases, the President is required to send a “special message” to the House and the Senate specifying the following:
(1) the amount of budget authority which he proposes to be rescinded or which is to be so reserved;
(2) any account, department, or establishment of the Government to which such budget authority is available for obligation, and the specific project or governmental functions involved;
(3) the reasons why the budget authority should be rescinded or is to be so reserved;
(4) to the maximum extent practicable, the estimated fiscal, economic, and budgetary effect of the proposed rescission or of the reservation; and
(5) all facts, circumstances, and considerations relating to or bearing upon the proposed rescission or the reservation and the decision to effect the proposed rescission or the reservation, and to the maximum extent practicable, the estimated effect of the pro- posed rescission or the reservation upon the objects, purposes, and programs for which the budget authority is provided.
A deferral is used if the President wants to temporarily withhold obligation of funds (but not beyond the end of the fiscal year). A rescission is used if the President wants to permanently withhold funds from obligation and for Congress to cancel the budget authority (before that authority would otherwise expire). The latter can be accomplished only through legislation.
The GAO’s Principles of Federal Appropriations Law notes that “The President is authorized to withhold budget authority that is the subject of a rescission proposal for a period of 45 days of continuous session following receipt of the proposal. Unless Congress acts to approve the proposed rescission within that time, the budget authority must be made available for obligation.”
Since Congress is on break in August, and the fiscal year ends on Sept 30, we don’t think there’s enough time to notify Congress of the rescission if that’s something the State Department is considering for the $80 million GEC funds.
So what happens if an agency withholds appropriated funds, and refuses to spend it?
Posted: 12:05 am ET
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Via gao.gov (PDF):
— Domani Spero
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Our analysis of State’s real property portfolio indicated that the overall inventory has increased. State reported its leased properties, which make up approximately 75 percent of the inventory, increased from approximately 12,000 to 14,000 between 2008 and 2013. However, comparing the total number of owned properties between years can be misleading because State’s method of counting these properties has been evolving over the past several years. OBO officials explained that in response to changes in OMB’s and FRPP’s reporting guidance, they have made efforts to count properties more precisely. For example, OBO has focused on separately capturing structural assets previously recorded as part of another building asset, such as perimeter walls, guard booths, and other ancillary structures. As a result of this effort, State recorded approximately 650 additional structural assets in its fiscal year 2012 FRPP report and approximately 900 more structures the following year in its fiscal year 2013 FRPP report, according to OBO officials.
Acquisitions: State reported spending more than $600 million to acquire nearly 300 properties from fiscal year 2008 through 2013 (see fig.1).11 State uses two sources of funding to acquire real property. It acquires land for building new embassy compounds (NEC) with funding from the CSCS program. It acquires residences, offices, and other functional facilities with proceeds from the disposal of unneeded property. In fiscal years 2008 through 2013, State reported spending approximately $400 million of these disposal proceeds to acquire approximately 230 properties.
Disposals: From fiscal years 2008 through 2013, State reported selling approximately 170 properties. In doing so, it received approximately $695 million in proceeds (see fig.1). According to State, property vacated when personnel move into newly constructed facilities is the largest source of property that can be disposed of. When State completes construction of a NEC, personnel previously working in different facilities at multiple locations are then collocated into the same NEC, a move that provides State an opportunity to dispose of its former facilities. Further information on State’s acquisitions and disposals from fiscal year 2008 through 2013, can be found in figures 1 and 2 below.
Leases: The majority of State’s leased properties are residences. State reported spending approximately $500 million on leases in 2013 and projects a potential increase to approximately $550 million by 2016 as growing populations in urban centers around the world push rental costs higher and the U.S. government’s overseas presence increases.
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— Domani Spero
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Migrants, such as foreign workers, from many countries seek employment in the Gulf region. In 2013, the top five source countries of international migrants to Gulf countries were India, Bangladesh, Pakistan, Egypt, and the Philippines (see table 5). Growing labor forces in source countries provide an increasing supply of low-cost workers for employers in the Gulf and other host countries where, according to the International Labour Organization (ILO), demand for foreign labor is high.
Economic conditions and disparities in per capita income between source and host countries encourage foreign workers to leave their countries to seek employment. In 2012, average per capita income in the six Gulf countries was nearly 25 times higher than average income per capita in the top five source countries, and some differences between individual countries were even more dramatic, according to the World Bank. For example, in 2012, annual per capita income in Qatar was more than $58,000, nearly 100 times higher than in Bangladesh, where per capita income was almost $600. Foreign workers in Gulf countries send billions of dollars in remittances to their home countries annually. For example, in 2012 the World Bank estimated that migrant workers from the top five source countries sent home almost $60 billion from the Gulf countries, including nearly $33 billion to India, nearly $10 billion to Egypt, and nearly $7 billion to Pakistan.
Read more here (pdf).
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— Domani Spero
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The Government Accountability Office (GAO) recently evaluated the construction of U.S. Embassy Kabul due to “broad congressional interest” in the oversight and accountability of U.S. funds used in Afghanistan. The GAO wanted to see what contracts State put in place to construct new U.S. embassy facilities in Kabul starting in 2009; the extent to which construction requirements, cost, or schedule have changed, and the reasons for the changes; and the extent to which the present expansion matches projected needs.
The GAO reports that contract costs for construction have increased by nearly 24 percent, from $625.4 million to $773.9 million as of May 2014. The original construction completion was to be the end of summer 2014; the contractual delivery date for all permanent facilities is now anticipated for July 2016.
With the withdrawal of U.S. troops in the horizon, SIGAR recently said that “constraint on oversight of US-funded Afghan reconstruction will only worsen as more US coalition bases close” and that the “ability to monitor, manage & oversee reconstruction programs in Afghanistan will only become more difficult.”
And yet, Embassy Kabul’s permanent facilities—both older and newly-constructed office and apartment buildings—will eventually contain 1,487 desks and 819 beds. The projected embassy staffing for 2015 is approximately 600 U.S. direct hires and 1,100 locally employed staff. Without the military support, State would once more end up with potentially contracting its own security and life-support contractors as it did in Iraq.
Excerpt from the GAO report:
From 2002 through 2009, State took several actions to expand the U.S. embassy compound in Kabul. Initially, OBO refurbished the existing office building, built in the 1960s. Additionally, OBO completed the construction of a new chancery office building, staff apartments, and support facilities. As staffing increases continued, the embassy acquired hundreds of shipping containers for temporary offices and housing. The embassy also compressed office space by putting more desks in the new chancery and old existing office building. Today the Kabul embassy compound consists of the original compound on the west side of Great Massoud Road, referred to as the West Compound, and an expansion compound on the east side of Great Massoud Road, referred to as the East Compound.
Since the two contracts were awarded in 2009 and 2010, construction requirements have changed, costs have increased, and schedules have been extended. OBO’s original construction requirements have changed. In December 2009, OBO added two stories to planned office annex A. In September 2011, after the U.S. and Afghan governments did not reach agreement to transfer the Afghan Ministry of Public Health site to the U.S. government, OBO removed the parking facilities from Contractor 2’s contract. The embassy also requested that OBO reconfigure the existing office building’s second floor. In March 2012 and September 2013, new security upgrades to perimeter walls and guard towers were added. Because of the building alterations, OBO is building space for more desks and beds than originally planned. The new office annexes under construction are to contain 1,237 desks, a nearly 60 percent increase over the 778 desks originally planned. OBO is also building space for 661 beds, about 50 more than originally planned.
Contract costs for construction have increased by nearly 24 percent, from $625.4 million to $773.9 million as of May 2014. (See table 1 on page 20 of the enclosure.) This $148.5 million cost increase is the result of multiple contract modifications to change construction requirements, including the transfer of construction requirements from the 1st contract to the 2nd contract.1
The overall project schedule has also been extended. OBO had originally planned to complete all construction on the compound by the end of summer 2014; the contractual delivery date for all permanent facilities is currently July 2016.
Factors affecting the project include:
It is difficult to determine whether current projects and existing facilities will meet future embassy needs. Long-term construction has been occurring in an unpredictable political and security environment characterized by dramatic changes in U.S. staff levels. Additionally, as the U.S. military draws down its presence in Afghanistan, State will have to decide whether to close its facilities in the field or engage support contractors to replace life-support services currently provided by the military, such as food, water, fuel, and medical services. Such changes may affect embassy staffing and operations. Future composition of U.S. agencies, staffing levels, and embassy facility needs continue to be subject to change.
Once current contracts are completed, the Kabul embassy’s permanent facilities—both older and newly-constructed office and apartment buildings—are to contain 1,487 desks and 819 beds. These totals do not include any desks or beds within temporary offices and housing that State expects to demolish. Furthermore, the desk totals assume that compressed office areas in currently crowded office buildings will be alleviated as some staff move out of those areas and into the newly completed office annexes.
Projected embassy staffing for 2015 is approximately 600 U.S. direct hires and 1,100 locally employed staff. State is working to identify its and other agencies’ desk positions (both U.S. direct hires and locally employed staff) that will occupy the new office space. State is also examining how to accommodate new support contractors—either on or off compound—that may be used to provide needed services after the U.S. military departs Afghanistan.
State is conducting a master planning study, due in August 2014, to address on-compound facility needs unmet by current construction. That plan may address parking facilities that were removed from the current construction project. State is also considering the continued use of various leased off-compound facilities in the future.
Read the full report here (pdf).
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— Domani Spero
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This is an excellent infographic but alas, we could not locate former NEA DAS Raymond Maxwell’s office in this organizational chart.
— Domani Spero
The State Department has established a mandatory requirement that specified U.S. executive branch personnel under chief-of-mission authority and on assignments or short-term TDY complete the Foreign Affairs Counter Threat (FACT) security training before arrival in a high-threat environment.
Who falls under chief-of-mission authority?
Chiefs of mission are the principal officers in charge of U.S. diplomatic missions and certain U.S. offices abroad that the Secretary of State designates as diplomatic in nature. Usually, the U.S. ambassador to a foreign country is the chief of mission in that country. According to the law, the chief of mission’s authority encompasses all employees of U.S. executive branch agencies, excluding personnel under the command of a U.S. area military commander and Voice of America correspondents on official assignment (22 U.S.C. § 3927). According to the President’s letter of instruction to chiefs of mission, members of the staff of an international organization are also excluded from chief-of-mission authority. The President’s letter of instruction further states that the chief of mission’s security responsibility extends to all government personnel on official duty abroad other than those under the protection of a U.S. area military commander or on the staff of an international organization.
The Government Accountability Office (GAO) recently released its report which examines (1) State and USAID personnel’s compliance with the FACT training requirement and (2) State’s and USAID’s oversight of their personnel’s compliance. GAO also reviewed agencies’ policy guidance; analyzed State and USAID personnel data from March 2013 and training data for 2008 through 2013; reviewed agency documents; and interviewed agency officials in Washington, D.C., and at various overseas locations.
High Threat Countries: 9 to 18
The June 2013 State memorandum identifying the nine additional countries noted that personnel deploying to three additional countries will also be required to complete FACT training but are reportedly exempt from the requirement until further notice. State Diplomatic Security officials informed the GAO that these countries were granted temporary exceptions based on the estimated student training capacity at the facility where FACT training is currently conducted. We know from the report that the number of countries that now requires FACT training increased from 9 to 18, but they are not identified in the GAO report.
“Lower Priority” Security Training for Eligible Family Members
One section of the report notes that according to State officials, of the 22 noncompliant individuals in one country, 18 were State personnel’s employed eligible family members who were required to take the training; State officials explained that these individuals were not aware of the requirement at the time. The officials noted that enrollment of family members in the course is given lower priority than enrollment of direct-hire U.S. government employees but that space is typically available.
Typically, family members shipped to high-threat posts are those who have found employment at post. So they are not just there accompanying their employed spouses for the fun of it, they’re at post to perform the specific jobs they’re hired for. Why the State Department continue to give them “lower priority” in security training is perplexing. You know, the family members employed at post will be riding exactly the same boat the direct-hire government employees will be riding in.
Working Group Reviews
This report includes the State Department’s response to the GAO. A working group under “M” reportedly is mandated to “discover where improvements can be made in notification, enrollment and tracking regarding FACT training.” The group is also “reviewing the conditions under which eligible family members can and should be required to complete FACT training as well as the requirements related to personnel on temporary duty assignment.”
Excerpt below from the public version of a February 2014 report:
Using data from multiple sources, GAO determined that 675 of 708 Department of State (State) personnel and all 143 U.S. Agency for International Development (USAID) personnel on assignments longer than 6 months (assigned personnel) in the designated high-threat countries on March 31, 2013, were in compliance with the Foreign Affairs Counter Threat (FACT) training requirement. GAO found that the remaining 33 State assigned personnel on such assignments had not complied with the mandatory requirement. For State and USAID personnel on temporary duty of 6 months or less (short-term TDY personnel), GAO was unable to assess compliance because of gaps in State’s data. State does not systematically maintain data on the universe of U.S. personnel on short-term TDY status to designated high-threat countries who were required to complete FACT training. This is because State lacks a mechanism for identifying those who are subject to the training requirement. These data gaps prevent State or an independent reviewer from assessing compliance with the FACT training requirement among short-term TDY personnel. According to Standards for Internal Control in the Federal Government , program managers need operating information to determine whether they are meeting compliance requirements.
State’s guidance and management oversight of personnel’s compliance with the FACT training requirement have weaknesses that limit State’s ability to ensure that personnel are prepared for service in designated high-threat countries. These weaknesses include the following:
- State’s policy and guidance related to FACT training—including its Foreign Affairs Manual , eCountry Clearance instructions for short-term TDY personnel, and guidance on the required frequency of FACT training—are outdated, inconsistent, or unclear. For example, although State informed other agencies of June 2013 policy changes to the FACT training requirement, State had not yet updated its Foreign Affairs Manual to reflect those changes as of January 2014. The changes included an increase in the number of high-threat countries requiring FACT training from 9 to 18.
- State and USAID do not consistently verify that U.S. personnel complete FACT training before arriving in designated high-threat countries. For example, State does not verify compliance for 4 of the 9 countries for which it required FACT training before June 2013.
- State does not monitor or evaluate overall levels of compliance with the FACT training requirement.
- State’s Foreign Affairs Manual notes that it is the responsibility of employees to ensure their own compliance with the FACT training requirement. However, the manual and Standards for Internal Control in the Federal Government also note that management is responsible for putting in place adequate controls to help ensure that agency directives are carried out.
The GAO notes that the gaps in State oversight may increase the risk that personnel assigned to high-threat countries do not complete FACT training, potentially placing their own and others’ safety in jeopardy.
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— Domani Spero
The logic behind a restrictive interpretation of functional immunity is that while a diplomat may be protected from some distractions to aid his purpose, there ought to be no need for him to violate the laws of his host state to do so. As many legal scholars have pointed out, a diplomats behaviour in his host country is best described by the Arabic proverb, يا غريب خليك أديب (ya ghareeb, khalleek adeeb) – O stranger, be thou courteous. — Jaideep Prabhu
In 2007, the Department of State reported that some foreign diplomats may be abusing the household workers they brought to the United States on A-3 or G-5 visas. A subsequent Government Accountability Office (GAO) report the following year revealed that 42 household workers with A-3 or G-5 visas alleged that they were abused by foreign diplomats with immunity from 2000 through 2008. The GAO believes the total number of alleged incidents since 2000 is likely higher for four reasons: household workers’ fear of contacting law enforcement, nongovernmental organizations’ protection of victim confidentiality, limited information on some cases handled by the U.S. government, and federal agencies’ challenges identifying cases.
Each year, the State Department issues A-3 and G-5 visas to individuals whose employers are foreign diplomats on official purposes in the United States. Most of these individuals are hired to work for foreign diplomats in the District of Columbia, Maryland, New York, or Virginia. According to the 2008 GAO report, for fiscal years 2000 through 2007, 207 U.S. embassies and consular posts overseas issued 10,386 A-3 visas and 7,522 G-5 visas.
Recent State Department statistics indicate that from 2008 through 2012, it issued 5,330 A-3 visas to attendant, servant, or personal employee of A1 visa holders (ambassador, public minister, career diplomat, consul, and immediate family) and A2 visa holders (other foreign government official or employee, and immediate family). It also issued 4,196 G-5 visas to attendant, servant, or personal employee of G1 through G4 (international organization officials and representatives). That’s about a 50% decrease on A-3 visas and a 44% decrease in G5 visas issued since 2008. What might have accounted for that huge drop?
How about the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008? Click here for the laws on trafficking in persons dating back to the year 2000.
In any case — five years ago today, President George W. Bush signed the TVPRA to combat human trafficking. Section 203 of the Trafficking Victims Protection Reauthorization Act of 2008 requires the secretary of state to suspend the issuance of A–3 visas or G–5 visas to applicants seeking to work for officials of a diplomatic mission or an international organization, if the Secretary determines that there is credible evidence that 1 or more employees of such mission or international organization have abused or exploited 1 or more nonimmigrants holding an A–3 visa or a G–5 visa, and that the diplomatic mission or international organization tolerated such actions.
No secretary of state has ever exercise the authority to suspend any diplomatic mission despite some repeat offenders. For a look at what the State Department has done/not done when it comes to TVPA and domestic employees of foreign diplomats in the United States, read Janie A. Chuang’s critical paper on Achieving Accountability for Migrant Domestic Worker Abuse in the 2010 North Carolina Law Review. One of the sections talks about the State Department’s “Failure to Use Power to Name, Shame, and Deter Wrongdoers.”
In 2008, the State Department through USUN sent this note verbale on the Treatment of Domestic Workers at UN Missions.
Recently, the host country has learned of a number of allegations of trafficking in persons with respect to domestic workers, including allegations of involuntary servitude and physical abuse. For example, this Mission has periodically been informed of instances where wages actually paid are less than those stipulated in an employment contract; where passports have been withheld from employees; where the actual number of working hours is considerably greater than those initially contemplated and no additional pay is provided; and where an employee is forbidden from leaving an employer’s premises even when off-duty. The United States Mission takes seriously any such allegation brought to its attention and refers these cases, as appropriate, to the United States Department of Justice for review and investigation.[…]
The United States Mission also wishes to advise the Permanent Missions that its commitment to fair and reasonable labor conditions is consistent with its commitment to human rights and, further, comports with the practice of other governments and with the requirements imposed by international organizations on their employees who have foreign domestic workers. Although the United States recognizes that the great majority of diplomats and Mission personnel are law-abiding members of the United Nations community, it is necessary to periodically re-circulate and update information regarding United States laws, regulations and policies regarding the employment of personal domestic servants.
In a 2009 diplomatic note, the State Department puts the heads of missions on notice that they are generally accountable for the treatment of domestic workers employed by their mission. We presume that this is a recurring reminder that the State Department sends to all diplomatic missions in the United States:
The United States Mission looks to the Permanent Representatives to be responsible for the conduct of the members of their missions and for ensuring that their treatment of domestic workers in their employ evidences respect for all relevant United States laws. In this regard, it is recommended that the Permanent Mission maintain copies of the signed domestic worker contracts and be able to review such contracts, as well as records of payments made to each domestic worker, in the event that the United States Mission seeks assistance if faced with credible allegations of a mission member’s mistreatment of a domestic worker.
The United States Mission and/or the Department of State refer credible allegations of abuse of domestic workers by mission members which may constitute criminal conduct to the United States Department of Justice. In that context, the United States Mission and the Department of State may take other appropriate action, including, based on the determination by an appropriate prosecuting authority that prosecution is warranted, a request for a waiver of any applicable immunity. Mission members are not only expected to pay the greater of the minimum or prevailing wage and abide by other contract terms, but they should also be aware that in the United States, withholding a person’s passport maybe evidence of the crime of trafficking in persons if it is done with the intent of keeping that person in a state of forced labor or service.
Worldwide, domestic workers employed by diplomats suffer abuses ranging from wage exploitation to trafficking offenses. Diplomats are government officials who serve their governments abroad and are generally able to apply for visas enabling domestic workers – often from third countries – to accompany them on their foreign assignments.Because domestic servants working for diplomats work behind closed doors – cleaning, cooking, and caring for children – they can become invisible to the neighborhoods and communities they live in. Domestic workers brought into a country by diplomats face potentially greater isolation than other workers because of language and cultural barriers, ignorance of the law, and sheer distance from family and friends. They work for government officials who may appear to them to hold exceptional power and/or influence. The resulting invisibility and isolation of such workers raises concerns about the potential for diplomatic employers to ignore the terms of their employment contracts and to restrict their domestic workers’ freedom of movement and subject them to various abuses. Because diplomats generally enjoy immunity from civil and criminal jurisdiction while on assignment, legal recourse and remedies available to domestic workers in their employ – and the criminal response otherwise available to the host government – are often significantly limited.
“We thought it was unfair for diplomats who victimized their own domestic workers were, because of diplomatic immunity, virtually untouchable. So now, we’re making sure that diplomats coming to this country understand their obligations and responsibilities, and we’re taking action when we have evidence that they are not.”
No one paid attention then, but they’re paying attention now.
In the latest diplomatic row between the United States and India, the Times of India provided an unconfirmed timeline of the events. It indicates that the State Department reportedly wrote to the Indian ambassador in Washington, D.C. on September 4, 2013 expressing “considerable concern” over the allegations. On September 21, the Indian Embassy reportedly replied, “that this was none of US’ business and that the maid was seeking a monetary settlement and US visa, whereby subverting both Indian and US laws.”
If that timeline is accurate, one has to ask who miscalculated whose response?
– Martina Vandenberg, Human Trafficking Pro Bono Legal Center
Despite the many notable cases of abuse by diplomats ranging from non-payment of wages to sexual assaults, we do not see very often an arrest of a foreign diplomat or international representative in the United States. But following the arrest of IMF’s Dominique Strauss-Kahn in 2011, Reuters did report the following:
Foreign diplomats have been the subject of at least 11 civil lawsuits and one criminal prosecution related to abuse of domestic workers in the last five years, according to a Reuters review of U.S. federal court records. The allegations range from slave-like work conditions to rape, and the vast majority of the diplomats in these cases avoided prison terms and financial penalties.
We have not been able to locate all civil lawsuits but the cases below are just a sampling of abuse allegations by domestic employees against their foreign diplomat-employers in the United States in the last several years.
Tae Sook PARK v. Bong Kil SHIN (South Korean Consulate/San Francisco) | Tae Sook Park, a domestic servant sued Deputy Consul General Bong Kil Shin of the Korean Consulate in San Francisco. The Ninth Circuit Court of Appeals reversed a district court decision dismissing Park’s claims of labor law violations. It held that the deputy consul was not entitled to immunity under the Vienna Convention on Consular Relations or the U.S. Foreign Sovereign Immunities Act, and remanded the case back to district court. He later became ambassador.
Swarna v. Al-Awadi (Kuwait Embassy)| Swarna Vishranthamma took to court her former employers, Badar Al-Awadi and his wife, Halal Muhammad Al-Shaitan and the State of Kuwait in 2009. At the time of the events in question, Mr. Al-Awadi was a diplomat serving in New York City with the Permanent Mission of the State of Kuwait to the United Nations. According to WaPo, Kuwaiti government hired a prominent law firm to defend him in the civil case — in court filings, he has denied the allegations — and then later promoted him to be Kuwait’s ambassador to Cuba.
Mildrate Yancho Nchang (Cameroon Embassy) | According to WaPo, Nchang filed a case against her employers alleging she toiled for three years without pay or a day off and then was hospitalized after being beaten by a Cameroonian diplomat’s wife. She sued in federal court in Maryland, but the case was dismissed in 2006 when the diplomat asserted immunity.
Mazengo v. Mzengi, et.al. (Tanzania Embassy)| In 2007, Ms. Mazengo, a citizen of Tanzania, sued her former employers, defendants Alan S. Mzengi and Stella Mzengi, husband and wife, alleging that they falsely imprisoned her and subjected her to involuntary servitude and forced labor in violation of federal law. Alan S. Mzengi was a diplomat accredited to the embassy of the Republic of Tanzania. WikiLeaks Alert: See the State-USEmbassy Tanzania demarche on the outstanding restitution for TIP victim, Ms. Zipora Mazengo.
Regina Leo (Kuwaiti Embassy) | In July, 2008, a lawsuit was filed against an attache in the Embassy of Kuwait, Brig. Gen. Ahmed Al Naser, and his family, by their former maid, Regina Leo, an Indian immigrant who alleged that she was forced to work as much as 18 hours per day.
Marichu Suarez Baoana (Philippine Embassy) | According to WaPo, in 2009, Ms. Baoana, a Philippine national sued the Permanent Representative of the Philippines to the United Nations, Lauro L. Baja Jr. alleging she was forced to endure 126-hour workweeks with no pay, performing household chores and caring for the couple’s grandchild.
Daedema Ramos (Kuwait Embassy) | In 2010, the Filipina housekeeper left a Kuwaiti diplomat’s Manhattan duplex where she worked 20 hours a day, earning as little s $500 a month. With help from Damayan, a grassroots organization fighting for the rights of low-wage Filipino migrant workers she escape her employer, and was encouraged to fight back. In July 2012, the diplomat settled with her after she demanded unpaid wages.
Sophia Kiwanuka (World Bank) | According to Reuters, World Bank economist, Anne Margreth Bakilana, hired a Tanzanian woman, Sophia Kiwanuka, to work in her home in Falls Church, Virginia, and improperly withheld Kiwanuka’s wages and threatened to send her back to Tanzania, according to court records. She pleaded guilty in 2010 and was sentenced to two years probation and fined $9,400.
Bhardwaj v. Dayal et al (Indian Embassy) | In 2011, Indian national Santosh Bhardwaj filed a lawsuit against Indian Consul General Prabhu Dayal for allegedly intimidating her into a year of forced labor, where she was subjected to 105-hour workweeks for $300 per month. According to Indian Express, in December 2012, the Indian Ministry of Finance approved payment of $75,000 from the budget of Ministry of External Affairs to a “former domestic assistant” who had filed a lawsuit against India’s consul-general in New York, Prabhu Dayal. Click here to read an interview with Mr. Dayal in India Today concerning his case and the Khobragade case.
Araceli Montuya (Lebanon Embassy ) | She filed a lawsuit against her former employer, the Lebanese Ambassador Antoine Chedid. On April 2011, U.S. District Judge James Boasberg in Washington threw out a case in which Montuya alleged that Chedid and his wife underpaid and verbally abused her.
Four former cooks and housekeepers (Qatar Embassy) | According to Reuters, on March 2011, four former cooks and housekeepers for Essa Mohammed Al Manai, Qatar’s second-highest ranking diplomat in the United States filed a civil lawsuit alleging they were paid less than 70 cents per hour and “forced to work around the clock” at Al Manai’s six-bedroom home in Bethesda, Maryland. The suit also claimed that one of the women was sexually assaulted. More here.
F.V. (The Taipei Economic and Cultural Office) | In 2011, Hsien-Hsien “Jacqueline” Liu, 64, of Taiwan, high-ranking representative of Taiwan was charged in federal court with fraud in foreign labor contracting for fraudulently obtaining a Filipino servant for her residence. Liu paid the Filipino worker $400-450 per month, although the employment contract stipulated a salary of $1,240 per month. Liu allegedly required the victim to work six days a week, 16 to 18 hours a day, and forbid her to leave the house without permission. (See Taiwanese Official in Kansas Charged for “Fraudulently Obtaining a Filipino Servant”). Liu was arrested by the FBI on Nov. 10, 2011 and was detained for two months before entering a plea agreement. She eventually entered a plea agreement and was ordered to pay US$80,044 in restitution to the two maids. According to the Taipei Times, in 2012, Liu was suspended from her duties for two years for “seriously damaging the country’s reputation.”
Gurung v. Mahotra (Indian Embassy) | In 2012, a New York City Magistrate Judge ordered Neena Malhotra, an Indian diplomat and her husband Jogesh to pay nearly $1.5 million reportedly arising from their employment of an Indian girl, Shanti Gurung who alleged “barbaric treatment” while she was employed as their domestic worker.
C.V. (Mauritius Embassy) | According to The Record, in 2012, Somuth Soborun, the Republic of Mauritius’ ambassador to the US pleaded guilty to the misdemeanor offense in September, admitting that he failed to properly pay a domestic worker minimum hourly and overtime wages between December 2008 and August 2009. He was fined $5,000. As part of his plea agreement, Soborun has already paid $24,153 in restitution to the domestic worker, who was identified in court papers only by the initials C.V.
Kumari Sabbithi, Joaquina Quadros and Tina Fernandes (Kuwaiti Embassy) | In 2012, the ACLU represented three Indian women who were employed as domestic workers by Major Waleed Al Saleh and his wife Maysaa Al Omar of McLean, Virginia. The complaint alleged that they were brought to the U.S. in the summer of 2005 and that they were forced to work every day from 6:30 a.m. until sometimes as late as 1:30 a.m. for approximately $250 to $350 a month. The complaint further alleged that they were subjected to threats and verbal and physical abuse, including one incident in which Al Saleh threw one of the women, Sabbithi, against a kitchen table, knocking her unconscious. The Kuwaiti government agreed to settle the case brought by three women who claimed that they were trafficked to the United States by a Kuwaiti diplomat and his wife.
USA v. Devyani Khobragade | In December 2013, the Indian Deputy Consul General Arrested For Visa Fraud and False Statements Related to Domestic Worker
The reported abuse of migrant domestic workers by diplomats and the staff of international organizations typically include wages and hour violations, passport deprivation, denial of the workers’ right to leave the house or premises in which they work, physical, sexual and emotional abuse and invasion of privacy, where domestic workers often have their rooms searched, their mail opened, and are not allowed to make private phone calls. For additional reading, see Joy M. Zarembka’s Global Woman: Nannies, Maids, and Sex Workers in the New Economy,which details the plight of some of the domestic workers brought to the U.S. by employees of international organizations.
We suspect that nowhere is the Khobragade Affair watched more closely than in the United Nations in New York and in the Embassy Row (the informal name for the streets and area of Washington, D.C. in which embassies, diplomatic missions, and other diplomatic representations are concentrated). Besides India, that is. To avoid possible “misunderstanding,” the State Department has recommended that diplomats keep employment records of their domestic workers including work hours and payment, records that should be maintained for the duration of actual employment of domestic employees plus three years. Would be interesting to see how many diplomatic missions in the United States actually take this recommendation seriously.
In an interview with India Today published on December 23, the former Indian Consul General Prabhu Dayal who was taken to court by his former housekeeper in New York said that “in our consulates in the US, there is a lot of fear today.”
“India’s view has been that the domestic assistants of our diplomats hold Official Passports and should be outside the purview of US labour laws. The US side has not agreed to this, insisting that US laws apply to them. This impasse continues.[…] even if were were to revamp our system relating to domestic assistants, we will not be able to guarantee that our officials in our Consulates will not be arrested or dragged into law courts for some reason or another in future. The US is a highly litigious country where suing people is a sort of favourite past time. […] There is no doubt, however that our officers posted at the Consulate in New York have begun to feel very insecure after all these recent cases, and the same may also be true for the other Consulates in Chicago, San Francisco, Houston and Atlanta. How will India protect its diplomats posted to the Consulates given the US position on immunity?”
“Which Indian would pay a help Rs 6500 ($ 100) a day?” asked Shakti Sinha, a former principal secretary in the government of India who did various stints abroad, including at the World Bank and various UN agencies, assuming eight normal working hours.
FirstPost.com reports on India’s former foreign secretary Kanwal Sibal’s opinion on this matter, quoting the former official as saying:
“There is much chicanery involved here. Indian diplomats taking domestic staff to the US accept the minimum wage requirement when all concerned, including the US visa services and the State Department, know this is done pro-forma to have the paper work in order. To imagine that the US authorities are duped into believing that our diplomats will pay their domestic staff more than what they earn is absurd. The US authorities have been clearing such visas for years to practically resolve the contradiction between reality and the letter of the law.”
And that’s probably why “there is a lot of fear today.”
Apparently, according to NYT, there are 14 other Indian maids working for Indian diplomats in the United States, and “India is negotiating over their status with the State Department.” If a Deputy Consul General could be hauled to jail for underpaying her domestic employee, who could Preet Bharara go after next?
The State Department’s TIP 2012 report says that “U.S. government employees, their dependents, and members of their households do not have immunity in the U.S. domestic legal framework for acts of human trafficking associated with domestic staff occurring at overseas postings. Any such reports will be fully investigated by Diplomatic Security and/or the Office of the Inspector General and, where appropriate, may result in either an administrative penalty and/or referral to the Department of Justice for criminal prosecution. These measures apply to Department of State employees overseas as well as their dependents and other members of household.”
It’s not an accident that the above item was included in the report. The State Department had two recent cases of domestic worker abuse.
Linda and Russell Howard | In 2011, Jane Doe, an Ethiopian national in her 30s filed a lawsuit in the U.S. District Court for the Eastern District of Virginia against a State Department employee Linda Howard and her husband, Russell Howard, alleging involuntary servitude, forced labor and human trafficking in violation of the Trafficking Victims Protection Act of 2000 (TVPA). She alleged that she was forced to work more than 80 hours a week for less than a dollar an hour; the exact amount was $0.88 an hour; the minimum hourly wage at the time of Jane Doe’s employment was $6.55 an hour. Court awarded a default judgment to Jane Doe for total damages of $3,306,468. Linda and Russell Howard had reportedly left the United States. See Court Awards $3.3 Million Default Judgment Against State Dept Couple Accused of Slavery and Rape of Housekeeper.
The suspension of a high-ranking Taiwanese official for two years for “seriously damaging the country’s reputation” is the only case we are aware of in recent memory where an official was disciplined by the sending country in the aftermath of U.S. federal charges related to the treatment of a domestic worker. In most cases, it looks like the official in question, protected by the sending state, gets moved elsewhere, or even gets a promotion with no career repercussion. Clearly underpayment or mistreatment of a domestic employee is not considered a serious offense by a good number of diplomatic missions.
While diplomats continue to dodge cases like this behind diplomatic immunity, and as long as governments stand behind their diplomats when they commit infractions like this, the practice will continue. As the German Institute of Human Right points out: “...[E]mployers’ diplomatic immunity in practice overrules the human rights of the victim and leads to a situation of de facto-unaccountability and –impunity for exploitative employers.”
In this India-U.S. row, we note that the outrage is focused on the circumstances of the diplomat’s arrest. And that is understandable. But it is also important to note that while the focus of the outrage is the strip-search, few are talking about the alleged treatment of the domestic worker. Unless, of course, we’re talking about the former Khobragade maid as a CIA agent.
In early December, Preet Bharara, the United States Attorney for the Southern District of New York also charged 49 Russian Diplomats/Spouses With Picking Uncle Sam’s Pocket in Medicaid Scam. Most of the diplomats charged are no longer in the country. And of the defendants still here, most are attached to the UN Mission and presumably enjoy diplomatic immunity. If the U.S. may not be able to put anyone in jail nor be able to recoup the thousands of dollars in scammed Medicaid money, why charged them? We suspect that the charges were brought to put a stop to the scam. Basically a megaphone saying — we know what you’re doing, shame on you, now stop it.
As complicated as the Khobragade case may seem, it will be resolved eventually. A $90 billion bilateral trade partnership is at stake. Who would throw that partnership over the cliff for a mid-level official? Or for an underpaid housemaid? Stay tuned. Perhaps the more interesting take on this incident is by Alison Frankel who writes, “For all we know, the State Department intended to send a message to the international diplomatic corps, which is often accused of cloaking itself in diplomatic immunity to avoid claims of mistreating domestic staff.”
Do we have an aha moment here?
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