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
