Monday, September 19, 2016

When Laws and Regulations are not enough


When the Korean War began in June 1950, the United States Army, after five years of occupation duty in Japan, was ill-prepared for combat in the rugged terrain of the Korean Peninsula. It was less prepared, however, for dealing with an enemy that ignored the Geneva Convention and subjected Prisoners of War (POW) to brutal and inhumane treatment. At the end of the war, the American government was shocked when 21 American POWs refused repatriation and took up residence in China, or to learn that one in three American POWs had not only collaborated with the enemy, but had mistreated fellow prisoners.
Despite provisions in the Uniform Code of Military Justice (UCMJ) that made collaboration with the enemy or abuse of comrades criminal acts, it still occurred because American military personnel were not prepared to resist the physical torture and brainwashing employed by their captors. Determined to do something about it, the Department of Defense developed the Military Code of Conduct, a simple six-article code to guide American forces in combat or captivity in the future. With only a couple of changes since promulgated by President Dwight D. Eisenhower’s Executive Order 10631 in 1955, the Code of Conduct has since been the legal, moral, and ethical basis for military conduct, nor replacing, but supplementing the existing laws and regulations.
Why do we need Codes of Conduct?
With the many laws and regulations we have that regulate the conduct of government employees, one might legitimately ask why separate codes of conduct are even necessary. As the Defense Department learned during and after the Korean War, having laws prohibiting conduct is often not enough to enable individuals to make appropriate decisions in situations of uncertainty.
In the last several decades more and more organizations, government and private, have come to the realization that laws and regulations alone are not enough to equip people to do the right thing.
Doctors, nurses, firemen, lawyers, police officers, therapists, and accountants are among the many professions that have a formal code of ethical conduct in addition to the man laws and regulations they must abide by. The diplomatic and government officials of the UK, Canada, Australia, New Zealand, and Nepal, among others, have codes of ethical behavior to complement the laws and regulations that guide their conduct. Sadly, one very important profession is missing from the list of those having formal codes of conduct—the U.S. Foreign Service.
The rationale for codes of conduct is that they enable individuals to make difficult decisions, especially when those decisions edge into the gray areas of ethics and morality. They help protect employees who would otherwise be tempted to compromise their integrity under the influence of unscrupulous individuals. Codes also improve an organization’s external reputation by publicizing the goals and the behaviors that are in line with those goals, establishing clear expectations, and holding members of the organization accountable for their actions.
Following are the commonly accepted traits of a profession:
1.      Performs specialized activities based on possession of advanced specialized knowledge, and the activities are primarily intellectual in nature rather than physical or manual.
2.      Confidential relationship between practitioners and their clients or employers.
3.      A substantial degree of public obligation by virtue of the specialized knowledge practitioners possess and employ in their work.
4.      Practitioners share a common heritage of knowledge, skill, and status.
5.      Work is performed in the general public interest.
6.      Practitioners are bound by a distinctive ethical code in interactions with clients, colleagues, and the public.
Number 6, codes of ethical conduct, is perhaps one of the most important traits of a profession, because it is the organization’s institutional ethics that underpin the other five traits, and it is through a formal, broadly understood code of ethics that organizations earn public trust and support. A commonly understood and accepted code is also critical in building esprit within an organization. Just as the Military Code of Conduct reassures members of the armed services that those serving beside them adhere to a code of honorable behavior, in an organization, having a code of ethical conduct helps members know that their colleagues ‘have their backs.’
Laws and regulations, while necessary are not sufficient
As previously mentioned, the U.S. Foreign Service does not have a formal code of ethical conduct for its members. It stands out among the other Western democracies, and even a few non-western countries in that regard.
Coming as I did from a military background, I noted this lack early in my 30 years in the Foreign Service, but didn’t find it particularly troubling until about midway through my career. During one of my assignments I observed two incidents and their disparate handling that highlighted the problem of relying on laws and regulations alone to control behavior. In the first incident, an American embassy staffer became romantically involved with a local. When an effort to end the relationship resulted in the local staging a rather noisy demonstration in front of the chancery, the American employee was immediately sent home by the ambassador, using the ‘loss of confidence’ authority that all chiefs of mission have. Some months later, foreign mercenaries were present in the country, and the ambassador published a written policy stating that only three officials in the embassy were to have any contact with them. An American staffer (not one of the three the ambassador authorized) began a romantic relationship with one of the mercenaries, going so far as to allow him to spend the night in embassy-controlled quarters, during which stays an armed member of the local military would station himself outside the compound gate. In this case, the ambassador, fearing the employee might sue the State Department or the ambassador for intruding on her ‘private’ life, took no action and ordered the DCM to take no action—to allow the employee, who was transferring in three months, to leave quietly.
Why, one might wonder, would two similar actions be dealt with in such a disparate manner? In neither case was a law or formal regulation—in the State Department, the formal regulations are in the Foreign Affairs Manuals (FAM)—was broken. In the second case, one might term the ambassador’s policy a ‘regulation,’ but for the sake of argument, let’s say it didn’t quite rise to that level. What was violated, in both cases, was local policy and common sense. But, one employee was punished by being ejected from the country, while the other was allowed to leave quietly. Why? It was a judgement call, of course. In the first case, the employee took the punishment quietly, while in the second, it was judged that the employee might rock the boat and file a grievance. While I can understand the decision-making process at work here, it struck me at the time, and still does, that this wasn’t a fair and equitable way to deal with these situations. The regulations were interpreted differently for two nearly identical violations.
This was brought home even more forcefully for me recently when I read about the case of the State Department employee who was punished for refusing to obey an order to violate the Federal Acquisition Regulations (FAR). I’m not directly familiar with this case, but what appeared in media accounts left me fuming.
According to numerous reports, State Department employee Timothy Rainey was instructed by his supervisor to pressure a contractor to rehire a fired subcontractor, an action that would have violated the FAR. When Rainey refused to comply, he was given a negative performance evaluation and relieved of his contracting duties. Rainey filed a complaint with the Merit Systems Protection Board (MPSB), claiming that the Department punished him inappropriately for his refusal to obey instructions that violated federal rules. The MPSB disagreed, finding that the ‘right to disobey’ provision of the Whistelblower Protection Act, which protects federal employees from retaliation for refusing to obey an order that would require the employee to violate a federal law, didn’t apply in this situation because he hadn’t been ordered to specifically  violate federal law. The U.S. Court of Appeals agreed with the MPSB decision, finding that rules and regulations are not laws. The irony in this case is that the MPSB, in coming to its conclusion, cited a Supreme Court decision in favor of a TSA employee who’d been fired for leaking that TSA had cut air marshals on long-distance flights to save money. In this case, the court found that the employee was entitled to whistleblower protection because he’d violated a regulation, not a law.
The foregoing highlights the weakness inherent in a system to enforce ethical conduct that relies on legal interpretations alone. What it illustrates is that actions can be ‘legal’ according to the law, but ‘wrong’ in so many other ways.
Let’s take another look at the military’s experience in the Korean War. The UCMJ is quite explicit in its prohibition of certain behaviors. The seven main articles in the UCMJ that govern conduct in combat or captivity are:
            Article 90: Willfully disobeying a superior commissioned officer
            Article 92: Failure to obey an order or regulation
            Article 93: Cruelty and maltreatment
            Article 99: Misbehavior before the enemy
            Article 100: Subordinate compelling surrender
            Article 105: Misconduct as a prisoner
            Article 104: Aiding the enemy
Yet, despite all these statutes, one in three American prisoners of war collaborated with the enemy; many PWs physically abused their fellow prisoners. What explanation is there for this? The finding of the committee that was established by the Secretary of Defense after the war was that the regulations and laws were insufficient to encourage the desired behavior; that what was needed was some over-arching code that inspired service members to act in ways that complied with the laws and regulations without necessarily being related to a specific law or regulation. The Code of Conduct was designed to encourage not just ‘legal’ behavior, but ‘right’ and ‘honorable’ behavior.

Does the U.S. Foreign Service need a code of ethical conduct?
The Department of State and the other agencies employing members of the Foreign Service, have a number of regulations regarding ethical behavior. The State Department, for example, has the Foreign Affairs Manual (FAM), in particular, 11 FAM: Legal and Political Affairs, which sets out prohibited conduct and financial disclosure rules for all State Department employees. In addition, State has published ethical guidelines on a number of occasions, and a number of bureaus, such as Consular Affairs and Diplomatic Security have established ethical guidelines for personnel assigned to their areas of responsibility.
All of these are laudable and necessary, but, in my view, not sufficient. The FAM regulations, despite the court ruling, are legally-based and define prohibited behavior. Moreover, the standards of conduct, or prohibited behavior, are contained in a thick document that is not that easy for employees to access and that is virtually inaccessible to the public. The various bureau codes are fine, insofar as they pertain to performance of duties in those specific areas, but Foreign Service personnel serve across all bureaus of State, in the other foreign affairs agencies, and on assignment to other federal, state, local and international organizations. This calls for a code of conduct that applies to all Foreign Service personnel, in all situations.
I’d like to say that the aforementioned Rainey case is an isolated incident, but my observations over thirty years tell me otherwise. Despite the volumes of legislation and regulations, there continue to be situations that are in ethical gray areas; cases of inequitable treatment and inappropriate behavior that not only threaten to undermine the morale of the service, but in some cases erode the public’s faith in the Foreign Service as an institution.
A well-designed diplomatic code of ethical conduct, on the other hand, could provide clear ethical standards for diplomatic practitioners, and a reference point that those outside the diplomatic profession could use to assess the performance and behavior of American diplomats. It allows the individual to know what’s expected as acceptable behavior, and provides a guide to making decisions that’s in line with the goals of the organization. By setting clear expectations, it protects the individual practitioner from exploitation by unscrupulous people, and establishes core aspirational values to guide individuals at all levels of the institution. The external reputation of the institution is enhanced when everyone is held accountable by a commonly shared code of ethics.
Who should develop the Foreign Service code?
In my conversations with Foreign Service colleagues on this subject, it has been pointed out on several occasions that the Department of State has published codes of ethical behavior a number of times over the past decade, and moreover, several bureaus within State (Consular Affairs and Diplomatic Security, for instance) have codes of conduct, so the Foreign Service as an institution has no need of one.
With all due respect, I believe they are wrong. While the various ethical codes promulgated by the Department of State are valuable, and laudable, the Foreign Service is an institution established by law, and while the vast majority of Foreign Service personnel do work at State, the Foreign Service is separate from State. Foreign Service personnel also work at the U.S. Agency for International Development (USAID), Commerce, Agriculture, Animal and Plant Health Inspection Service (APHIS), and the Broadcasting Board of Governors (BBG). Like lawyers, doctors, and other professionals, all personnel have to abide by the rules and regulations of the agency or organization for which they work, but other professions also have a unifying professional code of professional conduct. In the military, the activities of army, navy, and air force personnel are quite different, but the Military Code of Conduct is an ethical code that binds them all, regardless of rank or service.
The most effective codes are those that members of the profession feel ownership of. It would seem logical, therefore, that a code of ethical conduct for the Foreign Service should originate from within the Foreign Service itself, and the most logical home for such an effort is the body that represents the entire Service, the American Foreign Service Association (AFSA).
The groundwork for such an effort has already been laid. In 2012, AFSA established the Professionalism and Ethics Committee (PEC), subsequently renamed the Committee on the Foreign Service Profession and Ethics. This ad hoc committee was made up of volunteers dedicated to enhancing the Foreign Service as a profession and promoting the ethical conduct of the nation’s foreign affairs. Having just retired after 30 years in the service, I was honored to be named the first chair of this committee. With the assistance of the Institute of Government Ethics (IGE), we undertook a number of initiatives. One of the first was a survey of AFSA members in 2013, asking them, among other things, to identify the core values they feel are associated with the Foreign Service as a profession.
While a number of traits were mentioned in survey responses, the four that were overwhelmingly chosen as reflecting the highest standards of public service were:
Honesty – Being truthful, transparent and balanced.
Respect  - Giving full consideration to competing perspectives, exercising service discipline, respecting laws, customs, and practices of the United States and the host country, and engaging in a civil and courteous with all persons with whom we interact.
Responsibility – Putting the U.S. Constitution, U.S. interests, and policy objectives before self-interest, and utilizing all resources in the public’s best interest.
Fairness – Acting solely according to the merits of the case at handing and impartially serving, to the best of my ability, the elected administration.
These four traits represent the views of the AFSA membership as reflected in responses to the 2013 survey. While these are the core values as members of the Foreign Service see them, they in no way contradict the values, regulations, or laws of the organizations we serve. On the contrary, they reinforce them, and signal our aspiration to hold ourselves to an even higher standard. Like the physician who abides by the rules of the employing hospital, but at the same time honors the Hippocratic creed to ‘do no harm,’ the Foreign Service should aspire to be the epitome of a front-line force protecting the nation, its people, and its values.

I call upon AFSA, therefore, to step up and do what a professional association is designed to do; take the necessary actions to enhance the status of the Foreign Service as a profession and of AFSA members as practitioners of diplomacy. Establishing a code of conduct is but one of the things needed to achieve that goal, but it would be a useful first step