117 HR 6034 IH: Diplomatic Support and Security Act of 2021
U.S. House of Representatives
2021-11-18
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EN
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I
117th CONGRESS
1st Session
H. R. 6034
IN THE HOUSE OF REPRESENTATIVES
November 18, 2021
Ms. Jacobs of California (for herself and Mr. Kinzinger) introduced the following bill; which was referred to the Committee on Foreign Affairs
A BILL
To amend the Diplomatic Security Act of 1986 to empower diplomats to pursue vital diplomatic goals and mitigate security risks at United States Government missions abroad, and for other purposes.
1.

Short title
This Act may be cited as the “Diplomatic Support and Security Act of 2021”.
2.

Sense of congress
It is the sense of Congress that—
(1)
it is a United States national security priority that United States Government mission personnel are able to fully execute their duties, including—
(A)
providing United States citizen services that are often a matter of life and death in insecure places;
(B)
meeting with foreign officials, including government and nongovernment, civil society, private sector, and members of the press, to advance United States national security priorities; and
(C)
understanding, engaging, and reporting on foreign political, social, and economic conditions;
(2)
a risk-averse environment that inhibits the execution of these fundamental duties undermines the national security interests of the United States and contributes to the further militarization of United States foreign policy as military and intelligence agencies may experience fewer security restrictions and greater risk tolerance in the wake of security incidents; and
(3)
Congress has a role to play in addressing the negative impacts of an increasingly risk-averse culture at the Department of State and United States Agency for International Development and helping to create an appropriate balance of security and safety for United States diplomats and personnel with greater flexibility to carry out their most important duties, and in removing politics from the review of post-security incident evaluations.
3.

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 the Director General of the Foreign Service 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 effective risk management that enables the Department of State to pursue its vital goals with full knowledge that it is neither desirable nor possible for the Department to avoid all risks;”.
(b)

Briefings on embassy security
Paragraph (1) of section 105(a) of the Diplomatic Security Act (22 U.S.C. 4804(a)) is amended—
(1)
in the matter preceding subparagraph (A), 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 posts, and the risk to national security of the continued closure and remaining barriers to doing so”;
(2)
in subparagraph (A), by striking “the type and level of security threats such post could encounter” and inserting “the risk to national security of the post’s continued closure”; and
(3)
in subparagraph (C), by inserting “the type and level of security threats such post could encounter, and” before “security “tripwires””.
4.

Investigation of serious security incidents
(a)

In general
Section 301 of the Diplomatic Security Act (22 U.S.C. 4831) is amended—
(1)
in the section heading, by striking the heading 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 an incident involving loss of life, serious injury, or significant destruction of property at, or related to, a United States Government (USG) 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, an investigation, to be referred to as a “Serious Security Incident Investigation” (SSII), into such incident shall be convened by the Department of State and a report produced for the Secretary of State providing a full account of such incident, including—
(i)
whether security provisions pertinent to such incident were in place and functioning;
(ii)
whether any malfeasance or breach of duty took place that materially contributed to the outcome of such incident; and
(iii)
any recommendations of relevant security improvements or follow-up measures.
(B)

Exception
Subsection (a) does not apply in the case of an incident that 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 “convene a Board” and inserting “The Secretary of State shall conduct a Serious Security Incident Investigation (SSII) under subsection (a) and establish a subsequent process under section 302 to be carried out by the “Serious Security Incident Investigation Permanent Coordinating Committee” (SSII/PCC) established pursuant to such section”; 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” the first place such term appears and inserting “Serious Security Incident Investigation and begins the SSII/PCC process”;
(B)
by striking “chairman” and inserting “chair and ranking member”; and
(C)
by striking “Speaker” and all that follows through the period at the end of paragraph (3) and inserting “chair and ranking member of the Committee on Foreign Affairs of the House of Representatives.”.
(b)

Clerical amendment
The table of contents in section 2 of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 is amended by striking the item relating to section 301 and inserting the following new item:
“Sec. 301. Investigation of serious security incidents.”.
5.

Serious Security Incident Investigation Permanent Coordinating Committee
(a)

In general
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 Diplomatic Security Service of the Bureau of Diplomatic Security of the Department of State shall be responsible for conducting the investigation of an incident involving loss of life, serious injury, or significant destruction of property at, or related to, a United States Government (USG) mission abroad that may be determined to be a serious security incident and providing investigative personnel and other resources as may be necessary. The results of every investigation of all such incidents shall be referred to the Serious Security Incident Investigation Permanent Coordinating Committee established and convened pursuant to subsection (b) for final determinations regarding whether such incidents are serious security incidents.
(b)

Serious Security Incident Permanent Coordinating Committee
(1)

In general
The Secretary of State shall establish and convene a committee, referred to as a “Serious Security Incident Investigation Permanent Coordinating Committee” (in this title referred to as the “SSII/PCC”), to review each incident described in subsection (a) to determine, in accordance with section 304, if each such incident is a serious security incident. The SSII/PCC shall review the Report of Investigation prepared under section 303(c) 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 composed primarily of Assistant Secretary-level personnel or their designated representatives 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 or designated representative responsible for the region in which the serious security incident occurred.
(C)
The Assistant Secretary or designated representative for Diplomatic Security.
(D)
The Assistant Secretary or designated representative for the Bureau of Intelligence and Research.
(E)
An Assistant Secretary-level or designated representative from any involved United States Government department or agency.
(F)
Other personnel as determined necessary or appropriate.
(c)

Definition
In this section, the term “designated representative” means an official of the Department of State with a rank and status not lower than a Deputy Assistant Secretary-level or equivalent relevant to the office in which the Assistant Secretary referred to in paragraph (2) is a part and who is acting on behalf of the Assistant Secretary and with respect to whom the Assistant Secretary is responsible for the conduct and actions during the investigation process.”.
(b)

Clerical amendment
The table of contents in section 2 of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 is amended by striking the item relating to section 302 and inserting the following new item:
“Sec. 302. Serious Security Incident Investigation Permanent Coordinating Committee.”.
6.

Serious security incident investigation process
(a)

In general
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 shall commence when a United States Government (USG) mission reports to the Secretary of State information relating to an incident involving loss of life, serious injury, or significant destruction of property at, or related to, a USG mission abroad, including detailed information about such incident, not later than 72 hours after the occurrence of such incident.
(2)

Investigation
The Diplomatic Security Service of the Bureau of Diplomatic Security of the Department of State shall assemble an investigative team to carry out the investigation of an incident reported under paragraph (1). The investigation shall cover the following matters with respect to such incident:
(A)
An assessment of what occurred, an identification, if known, of the perpetrator suspected of having carried out such incident, and whether applicable security procedures were followed.
(B)
If such incident was an attack on a USG mission abroad, a determination regarding whether security systems, security countermeasures, and security procedures operated as intended.
(C)
If such 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 a USG mission, a determination regarding whether proper security briefings and procedures were in place and whether security systems, security countermeasures, and security procedures operated as intended, and whether such systems, countermeasures, and procedures worked to materially mitigate such attack or were inadequate to mitigate any threat associated with such attack.
(D)
An assessment of whether any officials’ or employees’ failure to follow procedures or perform their duties contributed to such incident.
(b)

Referral and recommendation
The investigative team assembled pursuant to subsection (a)(2) shall—
(1)
in accordance with section 302(a), refer to the SSII/PCC the results, including the Report of Investigation under subsection (c), of each investigation carried out under subsection (a); and
(2)
make a recommendation to the SSII/PCC, based upon each such investigation, regarding whether the incident that is the subject of each such investigation, should be determined to be a serious security incident.
(c)

Report of Investigation
At the conclusion of a Serious Security Incident Investigation under subsection (a), the investigative team shall prepare a Report of Investigation and submit such Report to the SSII/PCC. Such 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, injuries, and damage resulting from the incident that is the subject of the investigation.
(3)
A review of security procedures and directives in place at the time of such incident.
(4)
A recommendation, pursuant to subsection (b)(2), regarding whether such incident should be determined to be a serious security incident.
(d)

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 on 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 of Investigation under subsection (b). The SSII/PCC shall determine the level of classification of the final report prepared under section 304(b), but shall incorporate in such report, to the maximum extent practicable, the confidentiality measures referred to in this subsection.
(e)

Individual defined
In this section and section 304, the term “individual” means—
(1)
employees, as such term is defined in section 2105 of title 5 (including members of the Foreign Service);
(2)
members of the uniformed services, as such term is defined in section 101(3) of title 37;
(3)
employees of instrumentalities of the United States; and
(4)
individuals employed by any person or entity under contract with agencies or instrumentalities of the United States Government to provide services, equipment, or personnel.”.
(b)

Clerical amendment
The table of contents in section 2 of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 is amended by striking the item relating to section 303 and inserting the following new item:
“Sec. 303. Serious security incident investigation process.”.
7.

Findings and recommendations of the Serious Security Incident Investigation Permanent Coordinating Committee
(a)

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

Serious Security Incident Investigation Permanent Coordinating Committee findings and report
(a)

In general
The SSII/PCC shall review the Report of Investigation prepared pursuant to section 303(c), all other evidence, reporting, and relevant information relating to an incident involving loss of life, serious injury, or significant destruction of property at, or related to, a United States Government (USG) mission abroad, including an examination of the facts and circumstances surrounding any serious injuries, loss of life, or significant destruction of property resulting from such incident and shall make the following written findings and final determinations:
(1)
Whether such incident was security related and is determined to be a serious security incident.
(2)
If such incident was an attack on a USG mission abroad, whether the security systems, security countermeasures, and security procedures operated as intended, and whether such systems, countermeasures, and procedures worked to materially mitigate such attack or were inadequate to mitigate any threat associated with such attack.
(3)
If such incident involved an individual or group of officers conducting an approved operation outside a USG mission, a determination regarding whether a valid process was followed in evaluating such operation for approval and weighing any risks associated with such operation, except that such a determination shall not seek to assign accountability for such incident unless the SSII/PCC determines a breach of duty has occurred.
(4)
An assessment of the impact of intelligence and information availability relating to such incident, and whether the USG mission was aware of the general operating threat environment or any more specific threat intelligence or information and the extent to which such was taken into account in ongoing and specific operations.
(5)
Such other facts and circumstances that may be relevant to the appropriate security management of USG missions abroad.
(b)

SSII/PCC Report
Not later than 60 days after receiving the Report of Investigation prepared under section 303(b), the SSII/PCC shall submit to the Secretary of State a SSII/PCC Report on the incident at issue, including the determination and findings under subsection (a) and any related recommendations related to preventing and responding to similar such incidents. Not later than 90 days after receiving such SSII/PCC Report, the Secretary of State shall submit such SSII/PCC Report to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives. Such SSII/PCC Report shall be submitted in unclassified form, but may include a classified annex.
(c)

Personnel findings
If in the course of conducting an investigation under section 303, the investigative team finds reasonable cause to believe any official or employee referred to in subsection (a)(2)(D) of such section has breached the duty of such official or employee, or finds lesser failures on the part of an official or employee in the performance of his or her duties related to the serious security incident at issue, the investigative team shall report such to the SSII/PCC. If the SSII/PCC finds reasonable cause to support a finding relating to such a breach or failure, the SSII/PCC shall—
(1)
notify the official or employee concerned;
(2)
if such official or employee is employed by the Department of State, transmit to the Director General of the Foreign Service for appropriate action such finding, together with all information relevant to such finding; or
(3)
if such official or employee is employed by a Federal agency other than the Department of State, transmit to the head of such Federal agency for appropriate action such finding, together with all information relevant to such finding.”.
(b)

Clerical amendment
The table of contents in section 2 of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 is amended by striking the item relating to section 304 and inserting the following new item:
“Sec. 304. Serious Security Incident Investigation Permanent Coordinating Committee findings and report.”.
8.

Relation to other proceedings
Section 305 of the Diplomatic Security Act of 1986 (22 U.S.C. 4835) is amended—
(1)
by striking “Nothing in this title shall” and inserting the following:
“(a)

No effect on existing remedies or defenses
Nothing in this title may”; and
(2)
by adding at the end of the following new subsection:
“(b)

Future inquiries
Nothing in this title may be construed to preclude the Secretary of State from convening a follow-up public board of inquiry to investigate any serious security incident if such incident was of such magnitude or significance that an internal process is determined to be insufficient to understand and investigate such incident. All materials gathered during the procedures provided under this title shall be provided to any such related board of inquiry convened by the Secretary.”.
9.

Training for Foreign Service personnel on risk management practices
Not later than 90 days after the date of the enactment of this Act, the Secretary of State shall develop and submit to the appropriate congressional committees a strategy to train and educate Foreign Service personnel on appropriate risk management practices when conducting their duties in high risk, high threat environments. Such strategy shall include the following elements:
(1)
Plans to develop and offer additional training courses, or augment existing courses, for Foreign Service officers regarding the conduct of their duties in high risk, high threat environments outside of diplomatic compounds, including for diplomatic personnel such as political officers, economic officers, consular officers, and others.
(2)
Plans to educate Senior Foreign Service personnel serving abroad, including ambassadors, chiefs of mission, deputy chiefs of missions, and regional security officers, on appropriate risk management practices to employ when evaluating requests for diplomatic operations in high risk, high threat environments outside of diplomatic compounds.
10.

Sense of Congress regarding establishment of Expeditionary Diplomacy Award
It is the sense of Congress that the Secretary of State should—
(1)
encourage expeditionary diplomacy, proper risk management practices, and regular and meaningful engagement with civil society at the Department of State through the establishment of an annual award to be known as the “Expeditionary Diplomacy Award” that would be awarded to officers or employees of the Department; and
(2)
establish procedures for selecting recipients of such award, including any financial terms associated with such award.
11.

Promotion in the Foreign Service
Subsection (b) of the Foreign Service Act of 1980 (22 U.S.C. 4003) is amended—
(1)
by inserting after “as the case may be,” the following: “and when occupying positions for which the following is, to any degree, an element of the member’s duties,”;
(2)
in paragraph (1), by striking “when occupying positions for which such willingness and ability is, to any degree, an element of the member’s duties”;
(3)
in paragraph (1), by striking “, or” and inserting a semicolon;
(4)
in paragraph (2), by striking the period and inserting “; or”;
(5)
by redesignating paragraph (2) as paragraph (3);
(6)
by inserting after paragraph (1) the following new paragraph:
“(2)
a willingness and ability to regularly and meaningfully engage with civil society and other local actors in-country;”; and
(7)
by inserting after paragraph (3) the following new paragraph:
“(4)
the ability to effectively manage and assess risk associated with the conduct of diplomatic operations.”.
12.

Reporting requirement
Not later than 180 days after the date of the enactment of this Act and for every 180 days thereafter for the following two years, the Secretary of State shall submit to the appropriate congressional committees a report on the Department of State’s risk management efforts, including information relating to progress in implementing this Act, subsection (b) of section 102 of the Diplomatic Security Act (22 U.S.C. 4801), as amended by section 3(a) of this Act, and the following elements:
(1)
Progress on encouraging and incentivizing appropriate Foreign Service personnel to regularly and meaningfully engage with civil society and other local actors in-country.
(2)
Efforts to promote a more effective culture of risk management and greater risk tolerance among all Foreign Service personnel, including through additional risk management training and education opportunities.
(3)
Progress on efforts to incorporate the provisions of this Act into the Foreign Affairs Manual regulations and implement the Serious Security Incident Investigation Permanent Coordinating Committee (SSII/PCC) established and convened pursuant to section 302(b) of the Diplomatic Security Act (22 U.S.C. 4832), as amended by section 5 of this Act, to more closely align Department of State procedures with how other Federal departments and agencies analyze, weigh, and manage risk.
13.

Implementation
Not later than 180 days after the date of the enactment of this Act, the Secretary of State shall identify and report to the appropriate congressional committees which official of the Department of State, with a rank not lower than Assistant Secretary or equivalent, will be responsible for leading the implementation of this Act and the amendments made by this Act.
14.

Definition
In this Act, the term “appropriate congressional committees” means the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate.