Trump Revokes Travel Ban EO, Reissues New Executive Order For Six Muslim Countries Minus Iraq

Posted: 1:50  am ET
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On March 6, President Trump issued a new Executive Order that revoked the January 27 order, reissued the ban for the same six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen, with Iraq excepted.   This new EO has been discussed in detail elsewhere but we just want to note that Section 10 of the new EO talks about “Visa Validity Reciprocity” and how the “Secretary of State shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees.”

The United States charges a reciprocal visa issuance fee when a U.S. visa is issued. For example, a Brazilian issued an H1B visa will be charged $100 for a multiple entry, 24 month-visa. Or a Burmese citizen traveling as a tourist to the United States will be charged $32 for a one entry, 3 month validity visa. U.S. citizens traveling to Brazil or Burma will be issued reciprocal validity visas and pay the corresponding visa issuance fees.  These fees are based on the principle of  reciprocity:  when a foreign government imposes fees on U.S. citizens for certain types of visas, the United States will impose a reciprocal fee on citizens of that country for similar types of visas.  But the visa issuance fee which affect a small number of countries/types of visas is not the only fee the the United States charges foreign travelers.

In addition to the reciprocity visa issuance fee that the U.S. charges, it also  collects a visa application fee, also known as the MRV fee. This is a nonrefundable fee paid by most applicants for U.S. visas, whether the application is approved or refused. It covers the costs associated with processing a U.S. visa application.  In FY2015, the U.S. processed 14,013,695 visa applications. Multiply that with the typical MRV fee of $160 for each applicant and that’s revenue of approximately $2.2 billion.

So … how soon before the rest of the world starts charging Americans processing fees in addition to whatever reciprocal visa issuance fees are in the books? And who’s looking at visa workload projection for this fiscal year? What number and fees are we looking at for a big dip?

Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States

EXECUTIVE ORDER

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PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1.  Policy and Purpose. 

(a)  It is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals.  The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States.  It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP.

(b)  On January 27, 2017, to implement this policy, I issued Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States).

(i)    Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries:  Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  These are countries that had already been identified as presenting heightened concerns about terrorism and travel to the United States.  Specifically, the suspension applied to countries referred to in, or designated under, section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), in which Congress restricted use of the Visa Waiver Program for nationals of, and aliens recently present in, (A) Iraq or Syria, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence.  In 2016, the Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern for travel purposes, based on consideration of three statutory factors related to terrorism and national security:  “(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States; (II) whether a foreign terrorist organization has a significant presence in the country or area; and (III) whether the country or area is a safe haven for terrorists.”  8 U.S.C. 1187(a)(12)(D)(ii).  Additionally, Members of Congress have expressed concerns about screening and vetting procedures following recent terrorist attacks in this country and in Europe.

(ii)   In ordering the temporary suspension of entry described in subsection (b)(i) of this section, I exercised my authority under Article II of the Constitution and under section 212(f) of the INA, which provides in relevant part:  “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”  8 U.S.C. 1182(f).  Under these authorities, I determined that, for a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into the United States of certain aliens from the seven identified countries — each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States — would be detrimental to the interests of the United States.  Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to grant case-by-case waivers when they determined that it was in the national interest to do so.

(iii)  Executive Order 13769 also suspended the USRAP for 120 days.  Terrorist groups have sought to infiltrate several nations through refugee programs.  Accordingly, I temporarily suspended the USRAP pending a review of our procedures for screening and vetting refugees.  Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to jointly grant case-by-case waivers when they determined that it was in the national interest to do so.

(iv)   Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion.  While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion.  That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities — whoever they are and wherever they reside — to avail themselves of the USRAP in light of their particular challenges and circumstances.

(c)  The implementation of Executive Order 13769 has been delayed by litigation.  Most significantly, enforcement of critical provisions of that order has been temporarily halted by court orders that apply nationwide and extend even to foreign nationals with no prior or substantial connection to the United States.  On February 9, 2017, the United States Court of Appeals for the Ninth Circuit declined to stay or narrow one such order pending the outcome of further judicial proceedings, while noting that the “political branches are far better equipped to make appropriate distinctions” about who should be covered by a suspension of entry or of refugee admissions.

(d)  Nationals from the countries previously identified under section 217(a)(12) of the INA warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats.  Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.  Any of these circumstances diminishes the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States.  Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States.  Finally, once foreign nationals from these countries are admitted to the United States, it is often difficult to remove them, because many of these countries typically delay issuing, or refuse to issue, travel documents.

(e)  The following are brief descriptions, taken in part from the Department of State’s Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:

(i)    Iran.  Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq.  Iran has also been linked to support for al-Qa’ida and has permitted al-Qa’ida to transport funds and fighters through Iran to Syria and South Asia.  Iran does not cooperate with the United States in counterterrorism efforts.

(ii)   Libya.  Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals.  In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions.  Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country.  The Libyan government provides some cooperation with the United States’ counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters.  The United States Embassy in Libya suspended its operations in 2014.

(iii)  Somalia.  Portions of Somalia have been terrorist safe havens.  Al-Shabaab, an al-Qa’ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries.  Somalia has porous borders, and most countries do not recognize Somali identity documents.  The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.

(iv)   Sudan.  Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas.  Historically, Sudan provided safe havens for al-Qa’ida and other terrorist groups to meet and train.  Although Sudan’s support to al-Qa’ida has ceased and it provides some cooperation with the United States’ counterterrorism efforts, elements of core al-Qa’ida and ISIS-linked terrorist groups remain active in the country.

(v)    Syria.  Syria has been designated as a state sponsor of terrorism since 1979.  The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country.  At the same time, Syria continues to support other terrorist groups.  It has allowed or encouraged extremists to pass through its territory to enter Iraq.  ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States.  The United States Embassy in Syria suspended its operations in 2012.  Syria does not cooperate with the United States’ counterterrorism efforts.

(vi)   Yemen.  Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition.  Both ISIS and a second group, al-Qa’ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks.  Weapons and other materials smuggled across Yemen’s porous borders are used to finance AQAP and other terrorist activities.  In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country.  Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.

(f)  In light of the conditions in these six countries, until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high.  Accordingly, while that assessment is ongoing, I am imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers, as described in section 3 of this order.

(g)  Iraq presents a special case.  Portions of Iraq remain active combat zones.  Since 2014, ISIS has had dominant influence over significant territory in northern and central Iraq.  Although that influence has been significantly reduced due to the efforts and sacrifices of the Iraqi government and armed forces, working along with a United States-led coalition, the ongoing conflict has impacted the Iraqi government’s capacity to secure its borders and to identify fraudulent travel documents.  Nevertheless, the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment for Iraq.  In particular, those Iraqi government forces that have fought to regain more than half of the territory previously dominated by ISIS have shown steadfast determination and earned enduring respect as they battle an armed group that is the common enemy of Iraq and the United States.  In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal.  Decisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.

(h)  Recent history shows that some of those who have entered the United States through our immigration system have proved to be threats to our national security.  Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States.  They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees.  For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses.  And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction as part of a plot to detonate a bomb at a crowded Christmas-tree-lighting ceremony in Portland, Oregon.  The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.

(i)  Given the foregoing, the entry into the United States of foreign nationals who may commit, aid, or support acts of terrorism remains a matter of grave concern.  In light of the Ninth Circuit’s observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.

Sec. 2.  Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. 

(a)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.  The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.

(b)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order.  The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.

(c)  To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States.  I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.

(d)  Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the Secretary of State shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification.

(e)  After the period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.  The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.

(f)  At any point after the submission of the list described in subsection (e) of this section, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend should be removed from the scope of a proclamation described in subsection (e) of this section.

(g)  The Secretary of State and the Secretary of Homeland Security shall submit to the President a joint report on the progress in implementing this order within 60 days of the effective date of this order, a second report within 90 days of the effective date of this order, a third report within 120 days of the effective date of this order, and a fourth report within 150 days of the effective date of this order.

Sec. 3.  Scope and Implementation of Suspension.

(a)  Scope.  Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who:

(i)    are outside the United States on the effective date of this order;

(ii)   did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and

(iii)  do not have a valid visa on the effective date of this order.

(b)  Exceptions.  The suspension of entry pursuant to section 2 of this order shall not apply to:

(i)    any lawful permanent resident of the United States;

(ii)   any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;

(iii)  any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;

(iv)   any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;

(v)    any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or

(vi)   any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

(c)  Waivers.  Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner’s delegee, may, in the consular officer’s or the CBP official’s discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest.  Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa, but will leave all other requirements for admission or entry unchanged.  Case-by-case waivers could be appropriate in circumstances such as the following:

(i)     the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity;

(ii)    the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;

(iii)   the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;

(iv)    the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;

(v)     the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;

(vi)    the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;

(vii)   the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;

(viii)  the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or

(ix)    the foreign national is traveling as a United States Government-sponsored exchange visitor.

Sec. 4.  Additional Inquiries Related to Nationals of Iraq. 

An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, as appropriate, consultation with a designee of the Secretary of Defense and use of the additional information that has been obtained in the context of the close U.S.-Iraqi security partnership, since Executive Order 13769 was issued, concerning individuals suspected of ties to ISIS or other terrorist organizations and individuals coming from territories controlled or formerly controlled by ISIS.  Such review shall include consideration of whether the applicant has connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS, as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or otherwise threaten the national security or public safety of the United States.

Sec. 5.  Implementing Uniform Screening and Vetting Standards for All Immigration Programs.  

(a)  The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry.  This program shall include the development of a uniform baseline for screening and vetting standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.

(b)  The Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Director of National Intelligence, shall submit to the President an initial report on the progress of the program described in subsection (a) of this section within 60 days of the effective date of this order, a second report within 100 days of the effective date of this order, and a third report within 200 days of the effective date of this order.

Sec. 6.  Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017.  

(a)  The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section.  During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.  The suspension described in this subsection shall not apply to refugee applicants who, before the effective date of this order, have been formally scheduled for transit by the Department of State.  The Secretary of State shall resume travel of refugees into the United States under the USRAP 120 days after the effective date of this order, and the Secretary of Homeland Security shall resume making decisions on applications for refugee status only for stateless persons and nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that the additional procedures implemented pursuant to this subsection are adequate to ensure the security and welfare of the United States.

(b)  Pursuant to section 212(f) of the INA, I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any entries in excess of that number until such time as I determine that additional entries would be in the national interest.

(c)  Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States, including in circumstances such as the following:  the individual’s entry would enable the United States to conform its conduct to a preexisting international agreement or arrangement, or the denial of entry would cause undue hardship.

(d)  It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees.  To that end, the Secretary of State shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.

Sec. 7.  Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility.  The Secretary of State and the Secretary of Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority permitted by section 212(d)(3)(B) of the INA, 8 U.S.C. 1182(d)(3)(B), relating to the terrorism grounds of inadmissibility, as well as any related implementing directives or guidance.

Sec. 8.  Expedited Completion of the Biometric Entry-Exit Tracking System.

 (a)  The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry‑exit tracking system for in-scope travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.

(b)  The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive set forth in subsection (a) of this section.  The initial report shall be submitted within 100 days of the effective date of this order, a second report shall be submitted within 200 days of the effective date of this order, and a third report shall be submitted within 365 days of the effective date of this order.  The Secretary of Homeland Security shall submit further reports every 180 days thereafter until the system is fully deployed and operational.

Sec. 9.  Visa Interview Security.  

(a)  The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.  This suspension shall not apply to any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of conducting meetings or business with the United States Government.

(b)  To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that nonimmigrant visa-interview wait times are not unduly affected.

Sec. 10.  Visa Validity Reciprocity.  The Secretary of State shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment.  If another country does not treat United States nationals seeking nonimmigrant visas in a truly reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by that foreign country, to the extent practicable.

Sec. 11.  Transparency and Data Collection.  

(a)  To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available the following information:

(i)    information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other national-security-related reasons;

(ii)   information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States;

(iii)  information regarding the number and types of acts of gender-based violence against women, including so-called “honor killings,” in the United States by foreign nationals; and

(iv)   any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.

(b)  The Secretary of Homeland Security shall release the initial report under subsection (a) of this section within 180 days of the effective date of this order and shall include information for the period from September 11, 2001, until the date of the initial report.  Subsequent reports shall be issued every 180 days thereafter and reflect the period since the previous report.

Sec. 12.  Enforcement. 

(a)  The Secretary of State and the Secretary of Homeland Security shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of the actions directed in this order.

(b)  In implementing this order, the Secretary of State and the Secretary of Homeland Security shall comply with all applicable laws and regulations, including, as appropriate, those providing an opportunity for individuals to claim a fear of persecution or torture, such as the credible fear determination for aliens covered by section 235(b)(1)(A) of the INA, 8 U.S.C. 1225(b)(1)(A).

(c)  No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.

(d)  Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry.  Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.

(e)  This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture.  Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.

Sec. 13.  Revocation.  Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.

Sec. 14.  Effective Date.  This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017.

Sec. 15.  Severability. 

(a)  If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other persons or circumstances shall not be affected thereby.

(b)  If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements.

Sec. 16.  General Provisions. 

(a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

 

DONALD J. TRUMP

THE WHITE HOUSE,
March 6, 2017.

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Trump Travel Ban: Rudy Tells the “Whole Story”, Plus Reactions and Fall Out

Posted: 2:09 am ET
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On January 27, 2017, President Trump signed an executive order suspending the entry of refugees to the United States for FY2017 for 120 days. The E.O also proclaimed the entry of certain aliens as “detrimental to the interests of the United States” and declared the suspension of their entry into the United States for 90 days.  The aliens referred to are from countries cited under Section 217(a)(12) of the INA, 8 U.S.C.1187(a)(12) according to the executive order.  These are the same countries cited under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015: Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen.

We’ve seen folks on social media get confused about this. So let’s try this.  There are 38 countries designated as Visa Waiver Program (VWP) countries; citizens or nationals of these 38 countries are currently eligible to travel to the United States without a visa. However, if either of the following is true, travelers will no longer be eligible to travel to the U.S. without a visa. Instead, individuals in the following categories will have to apply for a visa using the regular appointment process at a U.S. Embassy or Consulate.

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

The Trump EO banning entry and issuance of immigrant and nonimmigrant visas for 90 days uses these same seven countries.  Note that citizens from these seven countries have not been banned from visa applications or entry to the United States previously. Citizens from 38 visa waiver countries who previously traveled to these seven Muslim-majority countries were not allowed to use the waiver and must submit for an interview with a consular officer at an embassy or consulate overseas.

Since it appears that DOD Secretary Mattis and DHS Secretary Kelly were out of the loop on this, would it be totally shocking if no input was asked from the State Department? No?  Interagency cooperation is just the White House now? On the day President Trump was preparing to sign this EO, our embassies and consular posts worldwide were still issuing visas;  all official, and valid but no longer acceptable at ports of entry as soon as the executive order took effect.

Here’s Rudddddddy with a backgrounder.

Reaction round-up below:

 

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US Implements Visa Waiver Restrictions For Dual Nationals From Iran, Iraq, Sudan, and Syria

Posted: 6:09 pm EDT
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The ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes a provision for “terrorist travel prevention and visa waiver program” officially called the ‘‘Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015’’.  The new law which affects dual nationals from WVP countries and Iran, Iraq, Sudan and Syria includes a waiver to be be exercised by the DHS secretary.  The new law also requires the Secretary of Homeland Security to submit to the Committee on Homeland Security, the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on the Judiciary of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, the Select Committee on Intelligence, and the Committee on the Judiciary of the Senate a report on each instance in which the Secretary exercised the waiver authority during the previous year.

On January 21, the State Department announced the implementation of the changes to the Visa Waiver Program. Below is the announcement:

The United States today began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). U.S. Customs and Border Protection (CBP) welcomes more than a million passengers arriving to the United States every day and is committed to facilitating legitimate travel while maintaining the highest standards of security and border protection. Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

These individuals will still be able to apply for a visa using the regular immigration process at our embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis.

Beginning January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked.

Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. As a general matter, categories of travelers who may be eligible for a waiver include:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.

Again, whether ESTA applicants will receive a waiver will be determined on a case-by-case basis, consistent with the terms of the law. In addition, we will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.

Any traveler who receives notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with a valid nonimmigrant visa issued by a U.S. embassy or consulate. Such travelers will be required to appear for an interview and obtain a visa in their passports at a U.S. embassy or consulate before traveling to the United States.

The new law does not ban travel to the United States, or admission into the United States, and the great majority of VWP travelers will not be affected by the legislation.

An updated ESTA application with additional questions is scheduled to be released in late February 2016 to address exceptions for diplomatic- and military-related travel provided for in the Act.

Information on visa applications can be found at travel.state.gov.

Current ESTA holders are encouraged to check their ESTA status prior to travel on CBP’s website at esta.cbp.dhs.gov.

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A couple days ago ….

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Post Closures, Travel Suspension, 9/11 Security Reminders

Posted: 2:07 am EDT
Updated: 11:11 am EDT
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Post closures:

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Non-essential travel suspension:
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9/11 Anniversary reminders:

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U.S. Court Awards Damages to Victims of August 7, 1998 East Africa Embassy Bombings

— Domani Spero
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Last week, we posted the State Department’s Albright archive of the 1998 East Africa embassy bombings.  Yes, the interesting thing about that is how 16 years later, the names, the response, the briefings and the narrative are ever so familiar.

The twin-embassy bombings cost the lives of over 220 persons and wounded more than 4,000 others. Twelve American USG employees and family members, and 32 Kenyan and 8 Tanzanian USG employees, were among those killed.

Screen Shot 2014-08-07

U.S. Embassy Nairobi employees joined Charge d’Affaires Isiah Parnell for a wreath laying ceremony to commemorate the victims of the 1998 Embassy bombing in Nairobi. August 7, 2014

In December 2011, U.S. District Judge John Bates ruled (PDF via Legal Times) that the governments of Sudan and Iran will be liable for monetary damages to victims of suicide bombings at U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania in 1998. According to Judge Bates’ 2011 order (PDF via Legal Times) , a special master was appointed to figure how much in damages the plaintiffs will receive.  The Court previously ruled that the foreign-national U.S.-government-employee victims have a federal cause of action, while their foreign-national family members have a cause of action under D.C. law.

On July 25, 2014, the Court entered final judgment on liability under the Foreign Sovereign Immunities Act (“FSIA”) on several related cases—brought by victims of the bombings and their families—against the Republic of Sudan, the Ministry of the Interior of the Republic of Sudan, the Islamic Republic of Iran, the Iranian Revolutionary Guards Corps, and the Iranian Ministry of Information and Security (collectively “defendants”) for their roles in supporting, funding, and otherwise carrying out the attacks. The combined cases involve over 600 plaintiffs. The awards range from $1.5 million for severe emotional injuries to $7.5 million for severe injuries and permanent impairment. The total award is reportedly $8 billion.

Judge John Bates in his ruling  (see Wamai, et al.,v. Republic of Sudan, et.al. (pdf) (Civil Action No. 08-1349 (JDB) writes that the 1998 embassy bombings shattered the lives of all plaintiffs.

[T]heir personal stories reveals that, even more than fifteen years later, they each still feel the horrific effects of that awful day. Damages awards cannot fully compensate people whose lives have been torn apart; instead, they offer only a helping hand. But that is the very least that these plaintiffs are owed. Hence, it is what this Court will facilitate.

 

 

Below are some of the embassy employees and their injuries cited in court documents:

  • Many plaintiffs suffered little physical injury—or none at all—but have claims based on severe emotional injuries because they were at the scene during the bombings or because they were involved in the extensive recovery efforts immediately thereafter. Those plaintiffs will be awarded $1.5 million. See id. Typical of this category is Edward Mwae Muthama, who was working at the offsite warehouse for the United States Embassy in Kenya when the bombings occurred. Report of Special Master John Aldock Concerning Edward Muthama [ECF No. 93] at 4. Shortly after the attack, Muthama headed to the blast site and spent days assisting with the gruesome recovery efforts; to this day he suffers from emotional distress resulting from his time administering aid to survivors and handling the dead bodies (and body parts) of his murdered colleagues. Id.
  • Other plaintiffs suffered minor injuries (such as lacerations and contusions caused by shrapnel), accompanied by severe emotional injuries. They will be awarded $2 million. Typical is Emily Minayo, who was on the first floor of the United States Embassy in Nairobi at the time of the bombing. Report of Special Master Brad Pigott Concerning Emily Minayo [ECF No. 162] at 4. She was thrown to the floor by the force of the blast, but she was lucky enough to escape with only lacerations that were later sewn up during a brief hospital stay. Id. She continues, however, to suffer from severe emotional damage resulting from her experience. Id.
  • To those who suffered more serious physical injuries, such as broken bones, head trauma, some hearing or vision impairment, or impotence, the Court will award $2.5 million. Typical is Francis Maina Ndibui, who was in the United States Embassy in Nairobi during the bombing. Report of Special Master Brad Pigott Concerning Francis Maina Ndibui [ECF No. 152] at 4. Ndibui became temporarily trapped under debris that fell from the ceiling, and he suffered minor lacerations similar to Minayo’s. Id. Also as a result of the bombing, he continues to suffer from partial vision impairment, which has persisted even through reparative surgery. Id. He also suffers from severe emotional damage resulting from his experience. Id.
  • Plaintiffs with even more serious injuries—including spinal injuries not resulting in paralysis, more serious shrapnel injuries, head trauma, or serious hearing impairment—will be awarded $3 million. Typical is Victor Mpoto, who was at the United States Embassy in Dar es Salaam on the day of the bombing. Report of Special Master Jackson Williams Concerning Victor Mpoto [ECF No. 136] at 3. The blast knocked him to the ground and covered him in debris, causing minor physical injuries. Id. Because he was only about fifteen meters away from the blast, he suffered severe hearing loss in both ears that continues to this day and for which he continues to receive treatment. Id. He also suffers from severe emotional damage resulting from his experience. Id. at 4.
  • Those who suffered from injuries similar to those plaintiffs who are generally awarded the “baseline” award of $5 million (involving some mix of serious hearing or vision impairment, many broken bones, severe shrapnel wounds or burns, lengthy hospital stays, serious spinal or head trauma, and permanent injuries) will also be awarded that baseline. See Valore, 700 F. Supp. 2d at 84. Typical is Pauline Abdallah, who was injured in the bombing of the United States Embassy in Nairobi. Report of Special Master Stephen Saltzburg Concerning Pauline Abdallah [ECF No. 117] at 3. She was knocked unconscious by the blast, and later spent about a month in the hospital. Id. She suffered severe shrapnel wounds requiring skin grafts, third-degree burns, and two of her fingers were amputated. Id. Shrapnel still erupts from her skin. Id. She also suffered severe hearing loss. Id. Like other plaintiffs who were injured in the bombing, she suffers from severe emotional damage. Id. at 3-4.
  • And for a few plaintiffs, who suffered even more grievous wounds such as lost eyes, extreme burns, severe skull fractures, brain damage, ruptured lungs, or endured months of recovery in hospitals, upward departures to $7.5 million are in order. Livingstone Busera Madahana was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Kenneth Adams Concerning Livingstone Busera Madahana [ECF No. 175] at 4. Shrapnel from the blast completely destroyed his right eye and permanently damaged his left. Id. He suffered a skull fracture and spent months in a coma; his head trauma caused problems with his memory and cognition. Id. “He endured multiple surgeries, skin grafts, physical therapy, vocational rehabilitation, speech and cognitive therapy, and psychotherapy for depression.” Id.
  • Gideon Maritim was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Jackson Williams Concerning Gideon Maritim [ECF No. 222] at 3. The second explosion knocked him unconscious for several hours. Id. at 4 The blast ruptured his eardrums, knocked out several teeth, and embedded metal fragments into his eyes. Id. He also suffered deep shrapnel wounds to his legs and stomach, and his lungs were ruptured. Id. His hearing is permanently impaired, as is his lung function. Id. at 5. And he suffers from chronic back and shoulder pain. Id.
  • Charles Mwaka Mulwa was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Jackson Williams Concerning Charles Mwaka Mulwa [ECF No. 132] at 3. The bomb blast permanently disfigured his skull, ruptured both his eardrums, and embedded glass in his eyes. Id. He continues to suffer from nearly total hearing loss, and his eyesight is permanently diminished. Id. And he suffered from other shrapnel injuries to his head, arms, and legs. Id.
  • Tobias Oyanda Otieno was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Brad Pigott Concerning Tobias Oyanda Otieno [ECF No. 181] at 4. The blast caused permanent blindness in his left eye, and substantial blindness in his right. Id. He suffered severe shrapnel injuries all over his body, including a particularly severe injury to his hand, which resulted in permanent impairment. Id. His lower back was also permanently damaged, causing continuous pain to this day. Id. He spent nearly a year recovering in hospitals. Id.
  • Moses Kinyua was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Deborah Greenspan Concerning Moses Kinyua [ECF No. 202] at 4. The blast knocked him into a coma for three weeks. Id. His skull was crushed, his jaw was fractured in four places, and he lost his left eye. Id. The head trauma resulted in brain damage. Id. In addition, he suffered from a ruptured eardrum, a detached retina in his right eye, a dislocated shoulder, broken fingers, and serious shrapnel injuries. Id. He was ultimately hospitalized for over six months. Id.
  • Joash Okindo was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Brad Pigott Concerning Joash Okindo [ECF No. 163] at 4. He spent about eight months in hospitals, and was in a coma for the first month because he suffered a skull fracture. Id. at 4-5. He suffered from severe shrapnel injuries to his head, back, legs, and hands, and the blast fractured bones in both of his legs. Id. at 4.
  • Each of these plaintiffs also suffered severe emotional injuries. The injuries suffered by these plaintiffs are comparable to those suffered by plaintiffs who were awarded $7–$8 million in Peterson II. See 515 F. Supp. 2d at 55-57 (e.g., Michael Toma, who suffered “various cuts from shrapnel, internal bleeding in his urinary system, a deflated left lung, and a permanently damaged right ear drum”). Hence, the Court will award each of these plaintiffs $7.5 million for pain and suffering. The Court adopts the recommendations by special masters of awards consistent with the adjusted guidelines described above, and will adjust inconsistent awards accordingly.

An attorney for hundreds of the East African victims cited the “need to have patience and determination” in collecting approximately $8 billion from Iran and Sudan, acknowledging it is unlikely that the  two governments would make voluntarily payments for the award ordered by the U.S. court. The lawyers are reportedly looking at Iranian and Sudanese assets seized in the United States or other countries as a source for the court-ordered payments.

 

Related documents ( all pdfs):

07/25/2014 Civil Action No. 2008-1380 ONSONGO et al v. REPUBLIC OF SUDAN et al
Doc No. 233 (memorandum opinion) by Judge John D. Bates

07/25/2014 Civil Action No. 2008-1361 AMDUSO et al v. REPUBLIC OF SUDAN et al
Doc No. 255 (memorandum opinion) by Judge John D. Bates

07/25/2014 Civil Action No. 2008-1349 WAMAI et al v. REPUBLIC OF SUDAN et al
Doc No. 246 (memorandum opinion) by Judge John D. Bates

 

 

 

 

 

 

There’s UK’s Naked Diplomat, Now Japan’s Barefoot Diplomat, Ball’s In Your Media, American Diplomats

— Domani Spero

First, there was the Naked Diplomat. Remember him?  See Are You Ready for The Naked Diplomat? FCO’s Man In Beirut Strips Down. That’s Tom Fletcher, the British Ambassador to Lebanon who writes:

“The Naked Diplomat has a smartphone to protect his modesty. But also the skills that have always been essential to the role: an open mind, political savvy, and a thick skin. He or she will learn the language of this new terrain in the way he or she has learnt Chinese or Arabic.”

Enter Japanese diplomat Yasuhiro Murotatsu, also called The Barefoot Diplomat.  He’s seeking his first wrestling win in Sudan.  He apparently is the first foreigner, and the first diplomat to fight in Sudan’s wrestling arena.  He has had about four matches but he’s not giving up. Below is Murotatsu’s Return Match Preview. Watch, you’ll love this! (Translation maybe added later, our translator is in school).

BBC News covered one of his wrestling matches.

They call him the barefoot diplomat: Yasuhiro Murotatsu, the political officer at the Japanese embassy in Sudan, also carries out an unusual form of physical diplomacy.

He takes on the best Sudanese wrestlers in the ring.

Mr Murotatsu hopes his fights can even bring the Sudanese closer together.

“I will be very happy if all Sudanese, from different parts of Sudan, from different tribes of Sudan, come together to support Sudanese wrestlers against a foreigner, a Japanese diplomat,” he told the BBC.

Go, Muro, Go!

Mr. Murotatsu has his own YouTube channel here. The BBC News video clip is here.

Okay, folks, your turn.

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Significant Attacks Against U.S. Diplomatic Facilities/Personnel From 1998-2012

by Domani Spero

The State Department recently released its compilation of significant attacks against U.S. diplomatic facilities and personnel from 1998 to 2012.

The list notes that some attacks may not be included because, in certain cases, the motivation of the attacks could not be determined. In other cases, violence against individuals may not have been reported through official channels.  It says that the information is not an all-inclusive compilation but “a reasonably comprehensive listing of significant attacks.”

Thousands of protestors attacked the U.S. Embassy in Khartoum, Sudan, breaking windows, setting fire to the Consular Section entrance, and causing extensive damage. (U.S. Department of State Photos)

Thousands of protestors attacked the U.S. Embassy in Khartoum, Sudan, breaking windows, setting fire to the Consular Section entrance, and causing extensive damage. 2012 (U.S. Department of State Photo)

Below is the list of attacks in 2012 We have highlighted in red all attacks with death or injuries, including incidents where the casualties are non-Americans.

JANUARY 1 TO DECEMBER 31 – IRAQ: Unknown individuals targeted the U.S. Consulate in Kirkuk with indirect-fire attacks on 41 separate occasions; additional indirect-fire attacks were launched against other U.S. interests in Iraq.

*FEBRUARY 2, 2012 – BAMAKO, MALI: Demonstrators attacked a U.S. Embassy vehicle with stones while the vehicle was en route to evacuate Mission dependents from a local school. A second Embassy vehicle also was attacked in a different location. There were no injuries in either incident.

FEBRUARY 20, 2012 – KANDAHAR PROVINCE, AFGHANISTAN: Unknown individuals attacked a U.S. Army convoy carrying one Embassy employee, killing one U.S. soldier and wounding two others.

MARCH 2, 2012 – ADEN, YEMEN: A gunman fired three rounds into the side window of a U.S. Embassy vehicle. No one was hurt in the attack.

MARCH 17, 2012 – FARYAB PROVINCE, AFGHANISTAN: Insurgents fired two rockets at the U.S. provincial reconstruction team compound. No injuries or damage were reported.

MARCH 24, 2012 – URUZGAN PROVINCE, AFGHANISTAN: An explosive device detonated against a vehicle outside an entry control point of the U.S. provincial reconstruction team compound, killing four Afghan National Police officers and one local national.

MARCH 26, 2012 – LASHKAR GAH, AFGHANISTAN: An individual dressed in an Afghan National Army uniform killed two International Security Assistance Force soldiers and wounded another at the main entry control point of the U.S. provincial reconstruction team compound.

APRIL 12, 2012 – VALLEY OF THE APURIMAC, ENE, AND MANTARO RIVERS, PERU: Presumed members of Sendero Luminoso terrorist group fired on a U.S. government-owned helicopter, killing one Peruvian police officer and wounding the Peruvian crew chief.

APRIL 15 TO 16, 2012 – KABUL, AFGHANISTAN: The U.S. Embassy compound sustained minor damage after heavily armed gunmen attacked several diplomatic missions and Afghan government buildings throughout the city.

APRIL 16, 2012 – GHOR PROVINCE, AFGHANISTAN: Unknown individuals attacked a U.S. provincial reconstruction team compound with small-arms fire but caused no injuries.

APRIL 16, 2012 – MANILA, PHILIPPINES: Protesters stole several letters from the sign at the Embassy front gate and threw paint onto the building.

JUNE 6, 2012 – BENGHAZI, LIBYA: An explosive device detonated outside the U.S. Special Mission, leaving a large hole in the perimeter wall but causing no injuries.

JUNE 16, 2012 – PAKTIKA PROVINCE, AFGHANISTAN: Unknown gunmen opened fire on a U.S. Embassy helicopter, striking the aircraft and rupturing its fuel tank, but causing no injuries.

AUGUST 8, 2012 – ASADABAD CITY, AFGHANISTAN: Two suicide bombers detonated their explosives near U.S. provincial reconstruction team members walking near Forward Operating Base Fiaz, killing three U.S. service members and one USAID employee, and wounding nine U.S. soldiers, one U.S. diplomat, four local employees, and one Afghan National Army member.

SEPTEMBER 3, 2012 – PESHAWAR, PAKISTAN: A suicide bomber in an explosives-laden vehicle attacked a U.S. Consulate General motorcade near the U.S. Consulate General’s housing complex, injuring two U.S. officials, two locally employed staff drivers, a local police bodyguard, and several other policemen providing security for the motorcade.

SEPTEMBER 8, 2012 – ZABUL PROVINCE, AFGHANISTAN: The U.S. provincial reconstruction team was targeted with two improvised explosive devices, but suffered no injuries.

SEPTEMBER 10, 2012 – BAGHDAD, IRAQ: Unknown individuals on the ground fired at a U.S. Embassy aircraft, but caused no damage to the aircraft and no injuries to those on board.

SEPTEMBER 11, 2012 – JERUSALEM: A “flash-bang” device was thrown at the front door of an official U.S. Consulate General residence, damaging an exterior door and hallway, but causing no injuries.

SEPTEMBER 11 TO 15, 2012 – CAIRO, EGYPT: Protesters overran U.S. Embassy perimeter defenses and entered the Embassy compound. No Americans were injured in the violent demonstrations that continued for four days.

SEPTEMBER 11 TO 12, 2012 – BENGHAZI, LIBYA: Attackers used arson, small arms, machine guns, rocket-propelled grenades, and mortars against the U.S. Special Mission, a Mission annex, and U.S. personnel en route between both facilities, killing the U.S. ambassador to Libya and three other U.S. government personnel, wounding two U.S. personnel and three Libyan contract guards, and destroying both facilities.

SEPTEMBER 12, 2012 – TUNIS, TUNISIA: Demonstrators, at the U.S. Embassy to protest inflammatory material posted on the Internet, threw stones at the compound’s fence and tried to get to the Embassy perimeter wall, before police secured the area.

SEPTEMBER 13, 2012 – SANA’A, YEMEN: Protesters stormed the Embassy compound, looting property and setting several fires. No U.S. citizens were injured in the attack. Throughout the day, groups of protesters harassed the U.S. Embassy and a hotel where Embassy personnel were residing.

SEPTEMBER 14, 2012 – CHENNAI, INDIA: Protesters outside the U.S. Consulate General threw a Molotov cocktail, causing some damage but no injuries.

SEPTEMBER 14, 2012 – KHARTOUM, SUDAN: An angry mob threw rocks at the U.S. Embassy, cut the Mission’s local power supply, and used seized police equipment to battle the Embassy’s defenders, damaging more than 20 windows and destroying several security cameras.

SEPTEMBER 14, 2012 – TUNIS, TUNISIA: Protesters breached the U.S. Embassy wall and caused significant damage to the motor pool, outlying buildings, and the chancery. Separately, unknown assailants destroyed the interior of the American Cooperative School. No U.S. citizens were injured in either attack.

SEPTEMBER 16, 2012 – KARACHI, PAKISTAN: Protesters broke through police lines and threw rocks into the U.S. Consulate General perimeter, damaging some windows but causing no injuries.

SEPTEMBER 17, 2012 – JAKARTA, INDONESIA: Demonstrators threw Molotov cocktails and other material at the U.S. Embassy to protest inflammatory material posted on the Internet, injuring 11 police officers and causing minor damage to the Embassy.

SEPTEMBER 18, 2012 – BEIJING, CHINA: Protesters surrounded the U.S. ambassador’s vehicle and caused minor damage to the vehicle, but no injuries were reported.

SEPTEMBER 18, 2012 – PESHAWAR, PAKISTAN: Demonstrators outside the U.S. Consulate threw rocks and Molotov cocktails, and pulled down a billboard showing a U.S. flag.

SEPTEMBER 23, 2012 – LONDON, UNITED KINGDOM: During a demonstration by thousands of protesters outside the U.S. Embassy, an unknown individual threw a rock at the building, damaging a ballistic- resistant window.

SEPTEMBER 27, 2012 – KOLKATA, INDIA: Protesters marched toward the American Center, rushed the gates, and threw sticks and stones at the facility, causing minor damage to a window.

OCTOBER 1, 2012 – KANDAHAR PROVINCE, AFGHANISTAN: Unknown individuals opened fire on the U.S. provincial reconstruction team facility with small-arms fire, but caused no injuries.

OCTOBER 4, 2012 – KANDAHAR PROVINCE, AFGHANISTAN:Unknown individuals targeted the U.S. provincial reconstruction team with small-arms fire, but caused no injuries.

OCTOBER 11, 2012 – SANA’A, YEMEN: The U.S. Embassy’s senior foreign service national investigator was shot and killed in his vehicle by gunmen on a motorcycle. The terrorist group Al-Qaida in the Arabian Peninsula claimed responsibility for the attack.

OCTOBER 13, 2012 – KANDAHAR PROVINCE, AFGHANISTAN: A suicide bomber detonated a suicide vest as a delegation of U.S. and Afghan officials arrived for a meeting, killing two U.S. citizens and five Afghan officials.

OCTOBER 29, 2012 – TUNIS, TUNISIA: Two men in a car harassed and threw a can at a U.S. military officer assigned to the Embassy who was driving a vehicle with diplomatic license plates. The officer was not injured in the incident.

NOVEMBER 4, 2012 – FARAH, AFGHANISTAN: An unknown individual attacked the U.S. provincial reconstruction team facility with a grenade but caused no injuries.

NOVEMBER 18, 2012 – PESHAWAR, PAKISTAN: Two mortar rounds exploded near U.S. Consulate General housing, injuring one local guard and damaging the consul general’s residence with shrapnel.

NOVEMBER 21, 2012 – JAKARTA, INDONESIA: Demonstrators, protesting inflammatory material posted on the Internet, threw objects at the U.S. Embassy.

NOVEMBER 23, 2012 – MEDAN, INDONESIA: Demonstrators at the American Presence Post damaged a vehicle gate in an attempt to gain access to the ground floor of the building.

NOVEMBER 23, 2012 – PESHAWAR, PAKISTAN: A round of indirect fire landed near a U.S. Consulate General residence but did not detonate and caused no injuries or damage.

DECEMBER 4, 2012 – DHAKA, BANGLADESH: Demonstrators surrounded a U.S. Embassy vehicle on the road, attempted to set it afire, and threw rocks and bricks at it, shattering several windows and injuring the driver.

DECEMBER 22, 2012 – TUNIS, TUNISIA: Protesters forced their way into the Ministry of Justice to confront a visiting delegation of U.S. government investigators. No one was hurt in the encounter, but photos of the U.S. investigators inside the Ministry of Justice were later posted on social media and other Internet sites.

The complete list is accessible online here.

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US Mission Sudan: USAID Employees’ Convicted Killer Currently in Prison Designated a Terrorist

—By Domani Spero

We blogged previously about the challenge of holding the killers of USAID Officer John Granville and FSN Abdel Rahman Abbas accountable in the Sudanese judicial system. After their 2010 escape from Khartoum’s max security prison, one is reportedly dead, one is back in jail and two remains at large three years after their escape.  These two have a $5 million bounty on each head.  The State Department has now designated the third and last of the convicted murderers as a terrorist under E.O 13244.  The individual is back jail, so not sure why this designation is happening now.  Unless this is in preparation for when Hamza gets to escape again.

The U.S. Department of State has designated Abd Al-Ra’Ouf Abu Zaid Mohamed Hamza under Executive Order 13224, which targets terrorists and those providing support to terrorists or acts of terrorism. As a result of this designation, all property subject to U.S. jurisdiction in which Hamza has any interest is blocked and any assets he may have under U.S. jurisdiction are frozen. U.S. persons are generally prohibited from engaging in transactions with him.

Hamza, with three co-conspirators, participated in an armed attack in Khartoum, Sudan on January 1, 2008, which resulted in the deaths of a U.S. diplomat serving with the U.S. Agency for International Development (USAID), John Michael Granville, and a locally employed U.S. Embassy staff member, Adbelrahman Abbas Rahama. The attack occurred when Granville and Abbas were leaving a New Year’s Eve party in Khartoum. Granville worked on democracy and governance programs for USAID.

The four men were convicted of murder and sentenced to death in a Sudanese criminal court in 2009. In 2010, the four men escaped from a maximum security prison, killing a Sudanese police officer and wounding another in the process. Shortly thereafter, Hamza was recaptured and is currently in prison in Khartoum. Another escapee was reportedly killed in Somalia in 2011, and the other two remain fugitives at large. These two fugitives, Abdelbasit Alhaj Alhasan Haj Hamad and Mohamed Makawi Ibrahim Mohamed, were designated as Specially Designated Global Terrorists under E.O. 13224 on January 8, 2013 and remain at large. The U.S. Department of State’s Rewards for Justice program has authorized rewards of up to $5 million each for information leading to the capture of the two fugitives.

In making this designation, the Department seeks to emphasize to the public and, in particular, to the Granville and Abbas families, our commitment to justice prevailing in this case.

Active links added above.  Check out the Rewards For Justice rogue’s gallery here.

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Murder in Khartoum — Remembering Ambassador Cleo Noel and DCM Curtis Moore

This Memorial Day we remember and honor two diplomats who were killed serving their country long before we gave terrorism its own acronym in our political discourse.  On December 23, 1972, President Nixon appointed Ambassador Cleo Noel as U.S. Ambassador to Sudan.  He would be the first full-fledged U.S. ambassador in Khartoum since the 1967 Arab-Israeli war. The outgoing Charge d’Affairs, George Curtis Moore was asked to stay on as Deputy Chief of Mission until Robert E. Fritts, the new DCM arrived in March.

On March 1, 1973 the Saudi Arabian Ambassador Abdullah al Malhouk held a farewell dinner for DCM Moore who had been in Sudan for the last three years. Around 7 pm that night, seven men from the Palestinian terrorist group Black September Organization  attacked the embassy villa armed with automatic weapons.  On March 2, 1973, 26 hours after being taken hostages, Ambassador Noel and DCM Moore were executed by the terrorists.

“Cleo and I will die bravely and without tears as men should,” Curt Moore wrote in the closing sentence of his letter to his wife.*

After a joint funeral on March 7 at the National Presbyterian Church in Washington D.C., Cleo Noel, Jr. and Curtis Moore were buried with military honors next to each other at Arlington National Cemetery.

Ambassador Noel’s wife, Lucille died of a stroke on Feb. 14, 2010 at Suburban Hospital in Bethesda.  She was 91 years old.  Mr. Moore’s wife Sarah Anne Stewart Moore  who shared a 23 year career with her husband in the Foreign Service passed away in 2007 and is also buried at Arlington National Cemetery.

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Plot: Section 5, Lot 134

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Plot: Section 5, Lot 135

The following account is an excerpt from the Foreign Affairs Oral History Collection of the Association for Diplomatic Studies and Training (ADST), an independent nonprofit organization founded to advance understanding of American diplomacy and training of foreign affairs personnel.

The BSO demanded the release of Arab militants. President Nixon said in a March 2 news conference that the U.S. would “not pay blackmail.” Ambassador Noel, Moore, and the Belgian were allowed to write final letters to their wives; they were killed 12 hours later. Demands for a plane were rejected, but the terrorists surrendered after three days to Sudanese authorities and were later put on trial, but justice was not served. Robert E. Fritts recalls how he was brought in from Washington to replace Moore as DCM, how he helped reestablish morale among the distraught embassy staff, and the frustrating pursuit of justice against the BSO. He was interviewed by Charles Stuart Kennedy in September 1999.

Foreign Affairs Oral History Project – Robert E. Fritts (Excerpt):

The embassy occupied the upper floors of a commercial office building adjoined by others on the main street. Because of the haboob [dust storm], power was out and also, I think, the Sudanese Government cut power to the Saudi embassy, and the area included us. I thus climbed five or six floors up the back steps, carrying my suitcase and my garment bag over my shoulder. The only lighting on the stairway was battery-operated dual emergency lights–very dim. I finally came to the floor where the embassy began. The administrative officer, Sandy Sanderson, was standing there with his glasses on a string hanging around his neck. I couldn’t quite see his face as he was back lighted by the emergency lamps, but I could tell he was crying. He said, “We’ve heard there was gunfire in the Saudi embassy. They may be dead. You’re in charge.”

My next thought was how could I be most useful? Others might behave differently, but I decided it was not to come in and take a high profile approach. I told Sanderson to remain in charge as he had been for the past two days, that I didn’t know the embassy, the staff, or even the city. Nor did I know Sudanese government officials, nor they me. The American embassy staff was very small: only a half-dozen American officers, two or three secretaries, all in shock and without rest. Most of our Sudanese FSNs [Foreign Service Nationals] were hunkered down at their homes. I decided the best thing I could do initially was just do whatever was helpful….

The Department and Embassy Khartoum were linked by a crude direct TTY [teletype] line that printed letter by letter. It was very slow and limited to only several sentences at a time. While talking with Sandy and others, I saw the TTY keyboard and small screen on a table with a chair in the corridor. It was unmanned and only glanced at intermittently when an officer happened to pass by. I knew how thirsty the Department was for information and its frustration with the dead time between questions and responses. So I said, “I’ll start with this.” Because of consultations, I knew who was who in the Department and thought I knew what they needed or would need. I manned the TTY for most of the next 36 hours. It became our embassy cockpit. It also freed up those who needed to be operational with the Foreign Ministry, the police, the Army, the media etc. I developed an increasingly in-depth dialogue with the Department, including sets of short evaluations, impressions, what next, etc. Versions were also being passed to Macomber, who was still in Cairo.

The haboob was still howling. They normally last hours; this one lasted three days. Even the following noon it was black. Dust and grit were everywhere, in your eyes and teeth. Every flat surface was layered. We were covered in gritty dust. The dim embassy lights were still battery powered.  It was a scene from hell.

Last Words

One human vignette I recall vividly is that the BSO operatives “permitted” Noel and Moore to write “last words” to their wives, who were together throughout at the residence. The murdered men’s notes, sealed in incongruously embossed Saudi embassy envelopes, were given to Sanderson by the Foreign Ministry. He asked me if I would deliver them? I said, “Sandy, I’ve never met Mrs. Noel and Mrs. Moore in my life. I’m even here as a live substitute for Moore. They’ve got enough to handle without factoring me in. You know them well, they know you. It’s better if you deliver the letters.” He left for the task in tears. He returned to say how appreciative the wives were for all everyone was doing, including me by name. And he commented that neither wife had shown any tears.

After much too long, the bodies were retrieved from the Saudi embassy basement, where they had been gunned down against a wall. Sandy identified them and he and Braun assisted in the preparation of the remains and putting them into the caskets that every embassy has for emergencies. They lay “in state” in one of our embassy houses overnight and the next day. We had a Marine Security Guard in dress blues in formal attendance, plus the American and ambassadorial flags. It was like a wake: embassy officers and Sudanese staff would come and go and come again. I think a few VIP Sudanese stopped by as well, even though the condolence book was at the embassy.

[…]

Then there was the departure ceremony. With the haboob over, Air Force One or Two, which had staged to Cairo, arrived with Macomber. We and the Sudanese arranged a tarmac exit ceremony for the coffins and the widows, attended by the government and diplomatic corps. In one of those poignant paradoxes you often see in Africa, the coffins, carried by the Marine Guards with the wives, me, and the other embassy officers following, were accompanied by Sudanese troops slow-marching to a Sudanese military bagpipe band playing Auld Lang Syne as a dirge.

In-Box Exercise, This Time for Real

You know, there’s an “in-box” exercise for Foreign Service applicants where they arrive at a post to replace an officer who’s died suddenly. They have to go through the contents of an in-box and determine priorities. Well, I now had two in-boxes and it was for real.

[…]

Among the papers in Noel’s box was a photo, taken by the desk where I now sat and developed at the embassy, of his taking the oath as ambassador on the day of his capture. He had come to the Sudan on an interim appointment and been confirmed by the Senate in absentia. Curt Moore had delivered the oath of office. The two men and their wives were wrapped in laughter and friendship. Hours later, both men were dead. If I had arrived in Khartoum directly from Jakarta, I might have been with them.

I learned later that Moore had possibly been at least vaguely aware of being under surveillance, but had discounted it. Noel had also been advised to be cautious, but, with his deep experience in Khartoum, had said that very day, “Nothing will happen to me in the Sudan.” He was right about the Sudanese, but wrong about the BSO, Libya, and, maybe, Yasser Arafat.

Among the papers in Moore’s box was a hand-written welcome letter to me. It ended with “So at the close of three and one-half of the finest years of my life, I welcome you to Khartoum and hope you will be able to make the same statement when you leave.”

Patching Up a Shattered Embassy

The small embassy was in psychological shock and depression. Although the Americans did not know Cleo Noel well, they knew his reputation. His few months at post had been impressively reassuring. They virtually revered Curt Moore. The Sudanese [Foreign Service Nationals] appreciated both men as friends of the Sudan and everyone knew that Noel and Moore were as close as brothers. The embassy was shattered, absolutely shattered.…

The first week or two was just terrible; each day worse than the one preceding. Aside from lack of knowledge and contacts, it was a challenge to resuscitate and inspire officers from such a trauma. I set initial personal and embassy goals, at first day-to-day and then longer. I soon realized the American officers found solace in focus. They also had been bonded by a crisis that encompassed me. It was March and they began to respond to my game plan of rendering honor to the fallen by having the embassy rebound as a fully functioning professional entity by July 4, 1973. If successful, we could top it off symbolically with the first formal July 4 celebration in an Arabic state since 1967. If we could do that, I would have done what I could as Charge. The embassy would then be a proven, ready, and able vehicle for a new ambassador with shoulder patch to move forward. Sounds rehearsed, but it was embedded in my mind and recallable today.

In retrospect, I consider Khartoum the formative period in my Foreign Service career. It justified the approach I had always taken of wanting responsibility and across-the-board experience. Frankly, when I left the Sudan, I felt I could handle any task the Foreign Service could assign.

Going to Court, Conviction, Release and the Big Picture

It was a tortuous process. The Sudanese Government’s initial chagrin and outrage became progressively modified by internal and foreign policy concerns. The first step, which took months, was a magisterial inquiry, sort of like a grand jury. After fits and starts and a series of our demarches to the government, the magistrate finally lodged charges of murder against the principal BSO assassins.…

[…]

Months further…they were convicted in a trial on charges of murder. The good news was that our foremost policy goal had been met: the conviction of anti-American terrorists in an Arab state. The sentence was life imprisonment, which the Sudanese Supreme Court commuted to X years. The bad news was truly bad. They were eventually turned over surreptitiously to the PLO to “impose the sentence” and spirited out by plane to Cairo. I think then-Ambassador Brewer only found out about it after the fact. The USG pressured the Egyptians not to release them and they were put in a form of progressively loose house arrest in a Nile mansion. Eventually, they evaporated. A travesty!

One of the controversies in later years was that the White House and State eased the pressure, partly for Middle East foreign policy reasons and partly because the major State principals were progressively transferred in a normal career sequence. Kissinger is cited as having a bigger picture in mind and State as viewing the matter as “an” issue, but not “the” issue it had been.…

Read ADST’s The Terrorist Attack on the Saudi Embassy – Khartoum, 1973.

You may also read the entire Robert Fritts’ interview here.

*Former FSO David Korn has written a book on this in Assassination in Khartoum.

The State Department’s Office of the Historian has now released the FOREIGN RELATIONS OF THE UNITED STATES, 1969–1976, VOLUME XXV, ARAB-ISRAELI CRISIS AND WAR, 1973.  On page 156 is the following:

“The Khartoum operation was planned and carried out with the full knowledge and personal approval of Yasser Arafat, Chairman of the Palestine Liberation Organization and the head of Fatah. When the terrorists became convinced that their demands would not be met and after they reportedly had received orders from Fatah headquarters in Beirut, they killed the two U.S. officials and the Belgian Charge ́. Thirty-four hours later, upon receipt of orders from Arafat in Beirut, the terrorists released the other hostages unharmed and surrendered to Sudanese authorities.”

Following the 1993 Oslo Accords, Yasser Arafat, and two Israelis, the Prime Minister Yitzhak Rabin and Foreign Minister Shimon Peres, were named the winners of the 1994 Nobel peace prize.

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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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