Accountability Review Boards - Is it Time for a Review of the System?

The 1980’s were difficult years for Americans at home and those living and working abroad, especially American diplomats and military personal. During the decade of the 80s, international terrorist groups declared open season on American interests, and staged a number of deadly attacks on U.S. facilities, killing hundreds of Americans, our allies, and innocent civilians who were in or near our diplomatic facilities at the time of the attacks.

A series of devastating attacks and disasters

By April 4, 1980, fifty-three members of the staff of the American Embassy in Tehran had been held hostage by militant students in Iran since November 4 of the previous year. On that day, the United States launched an operation to rescue them. Operation Eagle Claw, authorized by President Jimmy Carter, involved the Army’s newly-formed Delta Force being infiltrated into a remote area known as Desert One, from where they would locate and rescue the hostages. A collision between one of the RH-53 helicopters and a C-130 resulted in a massive explosion, killing all eight crew members on both aircraft. Not only did the rescue mission fail, and eight men on the rescue mission lose their lives, but the force had to execute an emergency withdrawal without destroying the aircraft remaining on the ground that were not destroyed, allowing their sensitive equipment to fall into the hands of the Iranians.

A month later, on May 18, 1980, Mount St. Helens, in the state of Washington, erupted in the most violent volcanic eruption in the U.S. since 1915, killing 57 people, thousands of animals, and destroying more than 200 homes.

On June 5, 1981, the Centers for Disease Control (CDC) reported the first cases of a rare lung infection in previously healthy young men, later learned to be a result of Acquired Immune Deficiency Syndrome (AIDS).

These three events, though not the only disasters of the 80s. There was the Challenger explosion in 1986, killing all of the astronauts on board, and the Wall Street crash of 1987. But they were the opening acts of a decade that was turbulent and deadly for Americans, in particular those who traveled, lived, or worked abroad.

The 1980s saw the birth of a number of international terrorist organizations, including Al Qaeda, and a declaration of open season on Americans and American interests around the world. While there was an alarming upswing in extremist attacks worldwide, I will focus primarily on those targeted against Americans, American interests, and American allies.

The October 23, 1983 bombing in Beirut, Lebanon, of buildings housing the US and French troops of the Multi-National Force-Lebanon, when two bomb-laden trucks were driving into the structures, killed 305 people, including 241 US Marines, 58 French soldiers, and six civilians. This deadly attack came just over six months after the April 18 suicide attack on the US Embassy in Beirut, which killed 32 Lebanese, 17 members of the embassy and CIA staff at the facility, and 14 embassy visitors and passers-by. The April attack was the deadliest attack on an American diplomatic mission to that time, and was considered the beginning of Islamist attacks on American targets, and it was the beginning of a series of hijackings, suicide bombings, and other attacks that caused American casualties, and sent shockwaves through the Washington establishment.

The US Government Response

The US Government’s responses to these attacks varied from ‘no response,’ to preparations in some cases to conduct retaliatory strikes when the perpetrators or their supporters could be identified. The June 14, 1985 hijacking of TWA Flight 847, enroute from Cairo to San Diego, shortly after it took off from Athens, in which the hijackers killed US Navy diver Robert Stethen and dumped his body on the tarmac during a brief stopover in Beirut, resulted in indictments against the alleged perpetrators.  In April, 1986, the US launched air strikes against targets in Libya in retaliation for that country’s sponsorship of extremist attacks against American military and civilian targets.

It was the government’s response to the embassy and embassy annex bombings in Beirut, though, that I wish to focus on, for it’s the legacy and aftermath of those actions that I believe contribute today to what can be called a ‘climate of risk-averseness’ that exists in the Department today, which inhibits our ability to conduct truly effective diplomacy.

The initial reactions to the series of attacks were restrained. Even though President Ronald Reagan had initially agreed to a joint French-US air strike in Iran’s Bekar Valley, where it was believed the attacks were planned, Defense Secretary Casper Weinberger lobbied against US participation because at the time it was not certain that Iran was behind the attacks. The French conducted the air attack unilaterally, and President Reagan issued a statement condemning the attacks against us, and an expression of our resolve to return peace to Lebanon.

The United Stated Congress appropriated an additional $251 million in economic and military aid to Lebanon, but added an amendment to the spending bill forcing the White House to seek congressional approval for any expanded military role in Lebanon Many prominent legislators opposed any US presence in Lebanon, with Republican Senator Barry Goldwater, saying, ‘It’s high time we bring the boys home.”

Secretary of State George Shultz established an Advisory Panel on Overseas Security chaired by retired navy Admiral Bobby Ray Inman. The Inman Commission, as it is more widely known, issued its report in June, 1985, with a seven-year plan that initiated the replacement of 162 out of 264 diplomatic posts with facilities using higher security standards, such as walled compounds, setback from streets and thoroughfares, and other more stringent security standards. The Inman Report not only replaced existing posts, but established standards for construction of new posts in at-risk areas. The report also recommended the establishment of the Diplomatic Security Service (DS).

In 1986, Congress passed the Omnibus Diplomatic Security and Anti-terrorism Act, PL 99-399, 22 U.S.C. 4852.  Among the main components of this legislation were limits on overseas diplomatic construction projects, restricting them to U.S. persons or qualif8ied U.S. joint venture persons on all projects exceeding $10 million, or any value if projects involved technical security. Two exceptions to the foregoing requirement were that low-level technology projects were not included, and the limits did not apply in countries where local laws prohibited U.S. contractors.

In effect, PL99-399 accepted the Inman Report’s conclusions and recommendations, including authorization of DS.

The legislation also established the requirement for Accountability Review Boards (ARBs) in cases ‘involving serious injury, loss of life, or significant destruction of property at or related to a United States government mission abroad.’

A lot of positive things have come out of the Inman Report and the subsequent legislation, including more secure diplomatic facilities, and the creation of an organization within the State Department with overall responsibility for security. But like anything, the coin has two sides, and particularly in regards to how the ARB process has been implemented, the results have not always been positive.

While the objective of the accountability process, as stated in the opening paragraph of Foreign Affairs Manual 030 (2 FAM 030) is to establish a mechanism to foster more effective security of missions and personnel abroad by conducting a thorough and independent review of security-related incidents, it also ‘seeks to determine accountability, and encourage improved security programs and practices. While few of the 18 ARBs that have been established since 1986 are publicly available for review, an examination of those that are tends to indicate that in practice, the process is less engaged in ‘fact-finding and mitigation’ of risks than ‘fault-finding, and litigation against those deemed to have been negligent in the performance of their duties. There is also, unfortunately in our current hyper-partisan environment, more noise made over assigning blame than on improving the system.

While there is probably little—if anything—the State Department and the Administration can do to mitigate the negative impact of partisan behavior on the part of members of Congress, taking a look at the general tenor of the regulations that govern the ARB process is possible, and, I submit, essential if we’re to be able to conduct diplomacy in an increasingly hazardous and complicated environment. The extended congressional ‘hearings’ into the 2012 Benghazi incident in which the American ambassador and other American members of the Embassy Libya staff lost their lives is a case in point. While the ARB found several inadequacies, it found no evidence of willful neglect of duties on the part of any individual. Some in congress, though, went to extreme lengths to ‘pin the blame’ for the incident on the Secretary of State, who happened to be from the ‘other’ political party. During this process, several State Department personnel found themselves caught up in the whirlwind of highly partisan sniper to the detriment of their careers and reputations. Even the chair and co-chair of the ARB were publicly criticized because their findings didn’t accord with the views of those in congress.

I would hazard a guess that while most active duty Foreign Service and Civil Service personnel are unfamiliar with the details of the two State Department regulations governing operations of an ARB,  2 Fam -030, and the Foreign Affairs Handbook that outlines ARB implementation procedures, 12 FAH-12 H-010, they are sensitive to the potential negative career impacts of being the subject of, or a witness for an ARB. It is these two documents that I wish to focus on.

I will not go into these documents in detail, but I offer one starting point for considerations, which I believe will go a long way toward bringing them more in line with their states purpose—fostering more effective security procedures—while at the same time, mitigating the chilling effect the process has on the effective conduct of diplomacy.

In my review of the Omnibus Act, the FAM, and the Foreign Affairs Handbook, I focused on the impressions they gave me. Were they worded in such a way to underscore their stated purpose, or were there passages that were troubling? In the FAM, I found one passage that disturbed me greatly. That was the one stating that witnesses appearing before an ARB, voluntarily or under subpoena, are entitled to have personal legal representation ‘at their own expense.’ As I read this, the standard line from crime shows came to mind; “you’re entitled to have an attorney during questioning, and if you cannot afford an attorney, one will be appointed for you. Now, active  Foreign Service and Civil Service personal are entitled to have appropriate legal representation from their bargaining unit, AFSA or AFGE, but one would think that the government would give its employees the same privileges granted to all Americans—access to legal advice and representation, without having to go into bankruptcy to do so.

I’m quite sure that there are more ‘fixes’ that could be made to the regulations, and to the law itself, that would, if not eliminate, at least mitigate the chilling effect they have on the way we do out jobs in the field. As our colleague, Ambassador (retired) Anne Woods Patterson, wrote in her outstanding article in the September 2019 issue of FSJ, “We Have to be there.” If we are to have the local knowledge in our countries of assignment that will enable effective policy making in Washington, we must be willing to take managed risks, but the rise of risk aversion at the State Department had undermined our ability to gather that knowledge, and that has significant consequences for our national security. We must ‘be there,’ but if we’re there and confined to our fortified offices, unable to venture out to engage with people who have the knowledge we need, we are ineffective.

When I was a relatively junior FSO assigned to our consulate general in Chiangmai, Thailand, in 1989, we received reports of damage to facilities along the Thai-Burmese border from fighting between two competing drug armies across the border. Since these facilities were popular tourist destinations, it was essential that we verify these reports in order to be able to provide accurate and timely information to American tourists coming to Thailand. The consul general, with approval from the embassy, sent me to the area to assess and verify this rumor. As DCM at our embassy in Freetown, Sierra Leone, from 1993 to 1996, during the bitter civil war, one of our objectives was to convince the Sierra Leonean military, which had recently taken over the government in a coup, to stay out of politics and allow planned elections to proceed. I had relatively good contacts within the junta leadership, and was asked by them to carry that message to their field commanders, most of whom were in areas with active contact with the attacking rebels. The ambassador at the time, agreed with me that with appropriate security precautions, while it was still risky to venture so near active battle zones, it was a risk worth taking. I visited each of the frontline brigades, sometimes hearing small-arms fire in the distance as I talked with the unit’s leaders, and on two occasions, we found scratches from weapons fire on the armored fuselage of the old Russian helicopter that a South African mercenary pilot used to ferry me from Freetown to the units. But the military stayed out of the fray, the elections were held, and in 1996, Sierra Leone had its first democratically elected president.

I find it hard to believe in today’s environment that any ambassador or consul general would allow such actions. The fear of the consequences should things go south is just too great, and the career impact of even exposing an embassy staffer to such risks can be devastating. In September 2019, along with Ambassador (retired) Ron Neumann, president of the American Academy of Diplomacy, Ambassador Patterson, and Ambassador (retired) Richard Olson (an A-100 classmate), I participated in Sisco Memorial Forum briefings for Senate and House staffers on ‘Why Diplomats Should Take More Risk? And Why Congress Should Let Them.’ The purpose of these briefings was to underscore the need to move away from the culture of risk avoidance and adopt a mindset of risk management, to enable our diplomats to more effectively carry out their mandate to support and implement the nation’s foreign policy objectives, and enhance our national security.

Our central message was that effective diplomacy is not without risk—one has only to view the memorial plaques in the C Street lobby of the Department of State to know this—but if we are to be effective, we must weigh the risks against the benefits, and seek ways to mitigate as much of those risks as possible, while at the same time achieving critical goals. The only way to avoid the risks in a foreign country is to not be there; and, as September 11, 2001 demonstrated, even that is not a guarantee of complete safety. 

Changing the ARB process will not in itself completely eliminate the Department’s reluctance to put personnel in harm’s way under any circumstances, but it’s a start.