117 S816 RS: Diplomatic Support and Security Act of 2021 U.S. Senate 2022-04-04 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

Short title

This Act may be cited as the

Diplomatic Support and Security Act of 2021

Investigation of serious security incidents

Section 301 of the Diplomatic Security Act of 1986 (22 U.S.C. 4831) is amended—(1)in the section heading, by striking

Accountability Review Boards

and inserting

Investigation of serious security incidents

;(2)in subsection (a)—(A)by amending paragraph (1) to read as follows:

(1)

Convening the Serious Security Incident Investigation Permanent Coordinating Committee process

(A)

In general

In any case of a serious security incident involving loss of life, serious injury, or significant destruction of property at, or related to, a United States Government (USG) diplomatic mission abroad, and in any case of a serious breach of security involving intelligence activities of a foreign government directed at a USG mission abroad, a Serious Security Incident Investigation (SSII) into the event shall be convened by the Department of State and a report produced for the Secretary providing a full account of what occurred, including—(i)whether security provisions pertinent to the incident were in place and functioning; (ii)whether any malfeasance or breach of duty took place that materially contributed to the outcome of the incident; and (iii)any recommendations of relevant security improvements or follow-up measures.(B)

Exception

A Serious Security Incident Investigation need not be convened where the Secretary determines that a case clearly involves only causes unrelated to security.

;

(B)in paragraph (2), by striking Board and inserting Serious Security Incident Investigation; and(C)by striking paragraph (3);(3)in subsection (b)—(A)in paragraph (1)—(i)by striking Except as and all that follows through Board and inserting The Secretary of State shall convene a Serious Security Incident Investigation and the subsequent Permanent Coordinating Committee process (SSII/PCC); and(ii)by striking for the convening of the Board; and(B)in paragraph (2), by striking Board each place it appears and inserting SSII/PCC; and(4)in subsection (c)—(A)by striking Board and inserting Serious Security Incident Investigation and begins the SSII/PCC process;(B)by adding and ranking member after chairman; and(C)by striking Speaker and all that follows through the period at the end of paragraph (3) and inserting chairman and ranking member of the Committee of Foreign Affairs of the House of Representatives..

Serious Security Incident Investigation Permanent Coordinating Committee

Section 302 of the Diplomatic Security Act of 1986 (22 U.S.C. 4832) is amended to read as follows:

302.

Serious Security Incident Investigation Permanent Coordinating Committee

(a)

Bureau of Diplomatic Security responsibility for investigations

The Bureau of Diplomatic Security shall be responsible for carrying out investigations of serious security incidents, utilizing such investigative personnel and other resources as may be necessary. (b)

Serious Security Incident Permanent Coordinating Committee

(1)

In general

The Serious Security Incident Investigation Permanent Coordinating Committee (SSII/PCC) shall be convened to review each serious security incident. The SSII/PCC shall review the Report of Investigation prepared under section 303(b) and any other available reporting and evidence, including video recordings, and shall prepare the SSII/PCC Report under section 304(b).(2)

Composition

The SSII/PCC shall be primarily composed of Assistant Secretary-level personnel in the Department of State, and shall at a minimum include the following personnel:(A)A representative of the Under Secretary of State for Management, who shall serve as chair of the SSII/PCC.(B)The Assistant Secretary responsible for the region where the incident occurred.(C)The Assistant Secretary for Diplomatic Security.(D)The Assistant Secretary for the Bureau of Intelligence and Research.(E)An Assistant Secretary-level representative from any involved United States Government department or agency.(F)Other personnel as determined necessary or appropriate. (3)

Report

The SSII/PCC shall, upon completing review of the Report of Investigation, submit to the Secretary of State a report on the incident and outcomes, including any recommendations related to preventing or responding to similar incidents.

Serious Security Incident Investigation process

Section 303 of the Diplomatic Security Act of 1986 (22 U.S.C. 4833) is amended to read as follows:

303.

Serious Security Incident Investigation process

(a)

Investigation process

(1)

Initiation

The Serious Security Incident Investigation process begins when a United States mission reports a serious security incident at the mission, including detailed information about the incident, within three days after it occurred.(2)

Investigation

The Diplomatic Security Service shall assemble an investigative team to carry out the investigation of an incident reported under paragraph (1). The investigation shall cover the following matters:(A)An assessment of what occurred, who perpetrated or is suspected of having perpetrated the attack, and whether applicable security procedures were followed. (B)In the event the security incident was an attack on a United States diplomatic compound, motorcade, residence, or other facility, a determination whether adequate security countermeasures were in effect. (C)If the incident was an attack on an individual or group of officers, employees, or family members under chief of mission authority conducting approved operations or movements outside the United States mission, a determination whether proper security briefings and procedures were in place and whether adequate consideration of threat and weighing of risk of the operation or movement took place.(D)An assessment of whether any officials' or employees' failure to follow procedures or perform their duties contributed to the security incident.(b)

Report of Investigation

The investigative team shall prepare a Report of Investigation at the conclusion of the Serious Security Incident Investigation and submit the report to the Serious Security Incident Investigation Permanent Coordinating Committee (SSII/PCC). The report shall include the following elements:(1)A detailed description of the matters set forth in subparagraphs (A) through (D) of subsection (a)(2), including all related findings.(2)An accurate account of the casualties, injured, and damage resulting from the incident.(3)A review of security procedures and directives in place at the time of the incident.(c)

Confidentiality

The investigative team shall adopt such procedures with respect to confidentiality as determined necessary, including procedures relating to the conduct of closed proceedings or the submission and use of evidence in camera, to ensure in particular the protection of classified information relating to national defense, foreign policy, or intelligence matters. The Director of National Intelligence shall establish the level of protection required for intelligence information and for information relating to intelligence personnel included in the report under subsection (b). The SSII/PCC shall determine the level of classification of the final report prepared under section 304(b), but shall incorporate the same confidentiality measures in such report to the maximum extent practicable.

Findings and recommendations by the Serious Security Incident Investigation Permanent Coordinating Committee

Section 304 of the Diplomatic Security Act of 1986 (22 U.S.C. 4834) is amended to read as follows:

304.

Serious Security Incident Investigation Permanent Coordinating Committee findings and report

(a)

Findings

The Serious Security Incident Investigation Permanent Coordinating Committee (SSII/PCC) shall review the Report of Investigation prepared under section 303(b), all other evidence, reporting, and relevant information relating to a serious security incident at a United States mission abroad, including an examination of the facts and circumstances surrounding any serious injuries, loss of life, or significant destruction of property resulting from the incident and shall make the following written findings:(1)Whether the incident abroad was security related and constituted a serious security incident.(2)If the incident involved a diplomatic compound, motorcade, residence, or other mission facility, whether the security systems, security countermeasures, and security procedures operated as intended, and whether such systems worked to materially mitigate the attack or were found to be inadequate to mitigate the threat and attack.(3)If the incident involved an individual or group of officers conducting an approved operation outside the mission, a determination whether a valid process was followed in evaluating the requested operation and weighing the risk of the operation. Such determination shall not seek to assign accountability for the incident unless the SSII/PCC determines that an official breached their duty.(4)An assessment of the impact of intelligence and information availability, and whether the mission was aware of the general operating threat environment or any more specific threat intelligence or information and took that into account in ongoing and specific operations.(5)Such other facts and circumstances that may be relevant to the appropriate security management of United States missions abroad.(b)

SSII/PCC report

Not later than 30 days after receiving the Report of Investigation prepared under section 303(b), the SSII/PCC shall submit a report to the Secretary of State including the findings under subsection (a) and any related recommendations. Not later than 90 days after receiving the report, the Secretary of State shall submit the report to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.(c)

Personnel recommendations

If in the course of conducting an investigation under section 303, the investigative team finds reasonable cause to believe any individual described in section 303(a)(2)(D) has breached the duty of that individual or finds lesser failures on the part of an individual in the performance of his or her duties related to the incident, it shall be reported to the SSII/PCC. If the SSII/PCC find reasonable cause to support the determination, it shall be reported to the Director General of the Foreign Service for appropriate action.

Relation to other proceedings

Section 305 of the Diplomatic Security Act of 1986 (22 U.S.C. 4835) is amended—(1)by inserting (a) No effect on existing remedies or defenses.— before Nothing in this title; and(2)by adding at the end the following new subsection:

(b)

Future inquiries

Nothing in this title shall be construed to preclude the Secretary of State from convening a follow-up public board of inquiry to investigate any security incident if the incident was of such magnitude or significance that an internal process is deemed insufficient to understand and investigate the incident. All materials gathered during the procedures provided under this title shall be provided to any related board of inquiry convened by the Secretary.

Short title

This Act may be cited as the

Diplomatic Support and Security Act of 2022

Findings

Congress makes the following findings:(1)A robust overseas diplomatic presence is part of an effective foreign policy, particularly in volatile environments where a flexible and timely diplomatic response can be decisive in preventing and addressing conflict.(2)Diplomats routinely put themselves and their families at great personal risk to serve their country overseas where they face threats related to international terrorism, violent conflict, and public health, among others.(3)The Department of State has a remarkable record of protecting personnel while enabling an enormous amount of global diplomatic activity, often in unsecure and remote places and facing a variety of evolving risks and threats. With support from Congress, the Department of State has revised policy, improved physical security through retrofitting and replacing old facilities, deployed additional security personnel and armored vehicles, and greatly enhanced training requirements and facilities, including the new Foreign Affairs Security Training Center in Blackstone, Virginia.(4)Diplomatic missions rely on robust staffing and ambitious external engagement to advance United States interests as diverse as competing with China’s malign influence around the world, fighting terrorism and transnational organized crime, preventing and addressing violent conflict and humanitarian disasters, promoting United States businesses and trade, protecting the rights of marginalized groups, addressing climate change, and preventing pandemic disease.(5)However, efforts to protect personnel overseas have often resulted in inhibiting diplomatic activity and limiting engagement between embassy personnel and local governments and populations.(6)Given that Congress currently provides annual appropriations in excess of $1,900,000,000 for embassy security, construction, and maintenance, the Department of State should be able ensure a robust overseas presence without inhibiting the ability of diplomats to—(A)meet outside United States secured facilities with foreign leaders to explain, defend, and advance United States priorities;(B)understand and report on foreign political, social, and economic conditions through meeting and interacting with community officials outside of United States facilities;(C)provide United States citizen services; and(D)collaborate and, at times, compete with other diplomatic missions, particularly those, such as the People’s Republic of China, that do not restrictions on meeting locations.(7)Given these stakes, Congress has a responsibility to empower, support, and hold the Department of State accountable for implementing an aggressive strategy to ensure a robust overseas presence that mitigates potential risks and adequately considers the myriad direct and indirect consequences of a lack of diplomatic presence.

Encouraging expeditionary diplomacy

(a)

Purpose

Subsection (b) of section 102 of the Diplomatic Security Act (22 U.S.C. 4801(b)) is amended—(1)by amending paragraph (3) to read as follows:

(3)to promote strengthened security measures, institutionalize a culture of learning, and, in the case of apparent gross negligence or breach of duty, recommend that the Secretary investigate accountability for United States Government personnel with security-related responsibilities;

;

(2)by redesignating paragraphs (4) and (5) as paragraphs (5) and (6), respectively; and(3)by inserting after paragraph (3) the following new paragraph:

(4)to support a culture of risk management, instead of risk avoidance, that enables the Department of State to pursue its vital goals with full knowledge that it is not desirable nor possible for the Department to avoid all risks;

(b)

Briefings on embassy security

Section 105(a) of the Diplomatic Security Act (22 U.S.C. 4804(a)) is amended in paragraph (1)—(1)by striking any plans to open or reopen a high risk, high threat post and inserting progress towards opening or reopening high risk, high threat post, and the risk to national security of the continued closure or any suspension of operations and remaining barriers to doing so;(2)in subparagraph (A), by inserting the risk to United States national security of the post’s continued closure or suspension of operations, after national security of the United States,; and(3)in subparagraph (C), by inserting the type and level of security threats such post could encounter, and before security tripwires.

Security review committees

(a)

In general

Section 301 of the Diplomatic Security Act of 1986 (22 U.S.C. 4831) is amended—(1)in the section heading, by striking

Accountability Review Boards

and inserting

Security Review Committees

;(2)in subsection (a)—(A)by amending paragraph (1) to read as follows:

(1)

Convening the Security Review Committee

In any case of a serious security incident involving loss of life, serious injury, or significant destruction of property at, or related to, a United States Government diplomatic mission abroad (a Serious Security Incident), 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, the Secretary of State shall convene a Security Review Committee (SRC), which shall issue a report providing a full account of what occurred, consistent with section 304.

;

(B)by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively;(C)by inserting after paragraph (1) the following new paragraph:

(2)

Committee composition

The Secretary shall designate a Chairperson and may designate additional personnel of commensurate seniority to serve on the SRC. Members of the SRC shall, at a minimum, include the following personnel:(A)The Director of the Office of Management Strategy and Solutions (M/SS).(B)The Assistant Secretary responsible for the region where the incident occurred.(C)The Assistant Secretary for Diplomatic Security.(D)The Assistant Secretary for the Bureau of Intelligence and Research.(E)An Assistant Secretary-level representative from any involved United States Government department or agency.(F)Other personnel as determined necessary or appropriate.

;

(D)in paragraph (3), as redesignated by subparagraph (B)—(i)in the paragraph heading, by striking

Department of Defense facilities and personnel

and inserting

Exceptions to Convening an SRC

;(ii)by striking The Secretary of State and all that follows through convene a Board in the case and inserting the following:

(A)

In general

The Secretary of State is not required to convene an SRC—(i)if the Secretary determines that the incident involves only causes unrelated to security, such as when the security at issue is outside of the scope of the Secretary of State’s security responsibility as defined in section 103;(ii)in a case where operational control of overseas security functions has been delegated to another agency consistent with section 106;(iii)if the incident is a cybersecurity incident and is covered by other review mechanisms; or(iv)in the case

; and

(iii)by striking In any such case and inserting the following:

(B)

Department of Defense investigations

In the case of an incident described in subparagraph (A)(iv)

; and

(E)by adding at the end the following new paragraph:

(5)

Regulations

The Secretary of State shall promulgate regulations defining the membership and operating procedures for the SRC and provide such guidance to the Chairmen and ranking members of the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.

;

(3)in subsection (b)—(A)in the subsection heading, by striking

Boards

and inserting

SRCs

; and(B)by amending paragraph (1) to read as follows:

(1)

In general

The Secretary of State shall convene an SRC not later than 60 days after the occurrence of an incident described in subsection (a)(1), or 60 days after the Department first becomes aware of such an incident, whichever is earlier, except that the 60-day period for convening an SRC may be extended for one additional 60-day period if the Secretary determines that the additional period is necessary.

; and

(4)in subsection (c)—(A)by striking convenes a Board and inserting convenes an SRC;(B)by inserting and ranking member after chairman; and(C)by striking Speaker and all that follows through the period at the end of paragraph (3) and inserting chairman and ranking member of the Committee of Foreign Affairs of the House of Representatives..(b)

Technical and conforming amendments

Section 302 of the Diplomatic Security Act (22 U.S.C. 4832) is amended—(1)in the section heading, by striking

accountability review board

and inserting

security review committee

; and(2)by striking a Board each place it appears and inserting an SRC.

Serious security incident investigation process

Section 303 of the Diplomatic Security Act of 1986 (22 U.S.C. 4833) is amended to read as follows:

303.

Serious security incident investigation process

(a)

Investigation process

(1)

Initiation upon reported incident

An investigation of a Serious Security Incident, as described in section 301(a)(1), shall begin when a United States mission reports a Serious Security Incident at the mission. Such a report shall include an initial report of the incident and shall be made within three days of the incident, when feasible.(2)

Investigation

Not later than 10 days following a report under paragraph (1), the Secretary shall direct the Diplomatic Security Service to assemble an investigative team to investigate the incident and independently establish what occurred. The investigation shall cover—(A)an assessment of what occurred, who perpetrated or is suspected of having perpetrated the serious security incident, and whether applicable security procedures were followed;(B)in the event the Serious Security Incident involved a United States diplomatic compound, motorcade, residence, or other facility, an assessment of whether adequate security countermeasures were in effect based on known threat at the time of the incident;(C)if the incident involved an individual or group of officers, employees, or family members under chief of mission security responsibility conducting approved operations or movements outside the United States mission, an assessment of whether proper security briefings and procedures were in place and weighing of risk of the operation or movement took place; and(D)an assessment of whether the failure of any officials or employees to follow procedures or perform their duties contributed to the security incident.(3)

Investigative team

The investigative team shall consist of individuals from the Diplomatic Security Service who shall provide an independent examination of the facts surrounding the incident and what occurred. The Secretary or the Secretary’s designee shall review the makeup of the investigative team for a conflict, appearance of conflict, or lack of independence that could undermine the results of the investigation and may remove or replace any members of the team to avoid such an outcome.(b)

Report of investigation

The investigative team shall prepare a Report of Investigation at the conclusion of the investigation and submit the report to the SRC no later than 90 days after the occurrence of a Serious Security Incident. The report shall include the following elements:(1)A detailed description of the matters set forth in subparagraphs (A) through (D) of subsection (a)(2), including all related findings.(2)A complete and an accurate account of the casualties, injuries, and damage resulting from the incident.(3)A review of security procedures and directives in place at the time of the incident.(c)

Confidentiality

The investigative team shall adopt such procedures with respect to confidentiality as determined necessary, including procedures relating to the conduct of closed proceedings or the submission and use of evidence in camera, to ensure in particular the protection of classified information relating to national defense, foreign policy, or intelligence matters. The Director of National Intelligence shall establish the level of protection required for intelligence information and for information relating to intelligence personnel included in the report under subsection (b). The SRC shall determine the level of classification of the final report prepared under section 304(b), but shall incorporate the same confidentiality measures in such report to the maximum extent practicable.

Findings and recommendations by the Security Review Committee

Section 304 of the Diplomatic Security Act of 1986 (22 U.S.C. 4834) is amended to read as follows:

304.

Security Review Committee findings and report

(a)

Findings

The Security Review Committee shall review the Report of Investigation prepared under section 303(b), all other evidence, reporting, and relevant information relating to a serious security incident at a United States mission abroad, including an examination of the facts and circumstances surrounding any serious injuries, loss of life, or significant destruction of property resulting from the incident and shall make the following written findings:(1)Whether the incident was security related and constituted a serious security incident.(2)If the incident involved a diplomatic compound, motorcade, residence, or other mission facility, whether the security systems, security countermeasures, and security procedures operated as intended, and whether such systems worked to materially mitigate the attack or were found to be inadequate to mitigate the threat and attack.(3)If the incident involved an individual or group of officers conducting an approved operation outside the mission, a determination whether a valid process was followed in evaluating the requested operation and weighing the risk of the operation. Such determination shall not seek to assign accountability for the incident unless the SRC determines that an official breached their duty.(4)An assessment of the impact of intelligence and information availability, and whether the mission was aware of the general operating threat environment or any more specific threat intelligence or information and took that into account in ongoing and specific operations.(5)Such other facts and circumstances that may be relevant to the appropriate security management of United States missions abroad.(b)

SRC report

Not later than 60 days after receiving the Report of Investigation prepared under section 303(b), the SRC shall submit a report to the Secretary of State including the findings under subsection (a) and any related recommendations. Not later than 90 days after receiving the report, the Secretary of State shall submit the report to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.(c)

Personnel recommendations

If in the course of conducting an investigation under section 303, the investigative team finds reasonable cause to believe any individual described in section 303(a)(2)(D) has breached the duty of that individual or finds lesser failures on the part of an individual in the performance of his or her duties related to the incident, it shall be reported to the SRC. If the SRC find reasonable cause to support the determination, it shall be reported to the Secretary for appropriate action.

Relation to other proceedings

(b)

Future inquiries

April 4 (legislative day, March 31), 2022

Reported with an amendment