- A
- B
- C
- D
- E
- F
The USA’s GI ranking in Band B places it in the low risk category for corruption in the defence and security sector. The USA scored in Band A (very low risk) for Personnel, and in Band B across all other risk areas: Operations, Political, Finance and Procurement Risks.
The United States has a high level of transparency and domestic scrutiny over defence policy and spending. However, given that the United States is the world’s largest arms exporter, one of the top 10 arms importers, and the country whose defence spending and involvement in international operations and security assistance dwarfs all others, the way it relates to other countries has an unparalleled impact on the world. For this reason, we suggest that the US government builds on its recognition of corruption as a strategic issue for military operations to provide systematic, comprehensive training on anti-corruption for military officers and considers ratifying the Arms Trade Treaty.
Oversight and Transparency
The United States Congress possesses extensive competencies in shaping and overseeing defence policy and expenditure through its budgetary and oversight powers. However, significant gaps in oversight and transparency remain. The Department of Defense has so far not undergone a full and comprehensive audit, despite Congress setting a number of deadlines for it. We recommend abiding by the existing deadline of 2018 to undergo a full audit (which means being audit-ready by the end of 2017) and continue to do so on a regular basis. It is important that the DOD rectify what the GAO calls the “pervasive deficiencies in its financial and related business management systems, processes, and controls.”
The Overseas Contingency Operations (OCO) fund, a lump sum awarded to DOD and other agencies by Congress for the funding of international operations in conflict areas, is not subject to the same budgetary process as other parts of the defence budget. Congress has recently created an obligation to appoint a Lead Inspector General for military operations lasting more than 60 days and the new system appears to be an effective way of strengthening oversight. How funds are allocated to the Overseas Contingency Operations fund should be made more transparent to ensure that scrutiny is sufficient and that it is used for funding operations in areas of conflict, as intended.
While the US defence budget is overall transparent, some information on expenditure and particular programmes is still not sufficiently disaggregated and can be difficult to find. More detailed and accessible information on expenditure allocated to security assistance, the OCO Fund, special operations and the large percentage which finances classified intelligence work should be made available.
Military Operations and Arms Trade
Operations in Iraq and Afghanistan prompted Congress to establish oversight institutions to counter corruption, including Special Inspector Generals for both operations and Task Force 2010, looking into corruption in US contracting. These developments should continue. The armed forces could build on the recent progress by incorporating detailed anti-corruption guidelines into both operational and security assistance doctrine and backing them up with case studies and pre-deployment training for all officers.
The US could also help strengthen its commitment to high standards for transparency and anti-corruption in the global arms trade by ratifying the Arms Trade Treaty (ATT).
Is there formal provision for effective and independent legislative scrutiny of defence policy?
(1) US Congressional committees' activities. https://www.govtrack.us/congress/committees/
(2) Washington Post. "Armed Services committees reject White House blueprint for military budget cuts," http://www.washingtonpost.com/world/national-security/armed-services-committees-reject-white-house-blueprint-for-military-budget-cuts/2014/05/24/c4b40024-e2bd-11e3-810f-764fe508b82d_story.html
(3) defence News, "House OKs $495.8B for 2015 Base Budget; Orders Army Structure Commission," http://www.defencenews.com/article/20140522/CONGRESSWATCH/305220044/House-OKs-495-8B-2015-Base-Budget-Orders-Army-Structure-Commission
(4) Arizona Daily Star. "Key House Panel OKs plan to save A-10 for at least a year," http://azstarnet.com/business/local/key-house-panel-oks-plan-to-save-a--for/article_32ca2219-a06f-54c3-b82a-e564cfae8f3a.html
(5) POGO's 2015 Baker’s Dozen of Suggested Congressional Oversight Priorities and Legislative Reforms: http://www.pogo.org/our-work/reports/2015/suggested-congressional-oversight-priorities-and-legislative-reforms.html
(6) Letter to Congress: 24 Groups Object to DoD's Attempt to Amend FOIA in the NDAA: http://www.pogo.org/our-work/letters/2015/24-groups-object-to-dods-attempt-to-amend-foia.html
(7) Center for Responsive Politics: defence Sector Lobbying Database: http://www.opensecrets.org/lobby/indus.php?id=D&year=2014
(8) &quoute;defence Contractors Spend Millions to Overturn Limits on Military Spending&quoute;, Time Magazine, August 5, 2015, http://time.com/3984453/defence-contractors-lobbying/
(9) United States Constitution, Section 8. Available at http://www.archives.gov/exhibits/charters/constitution_transcript.html
(10) defence Security Cooperation Agency, 'Arms Sales: Congressional Review Process'. http://www.dsca.mil/resources/arms-sales-congressional-review-process
(11) Karen L. Haas, Clerk of the House of Representatives. 'Rules of the House of Representatives, 114th Congress'. 6 January 2015. http://clerk.house.gov/legislative/house-rules.pdf, accessed October 2015.
(12) Jake Miller, 'Obama submits national security strategy to Congress', CBS News, 6 February 2015. http://www.cbsnews.com/news/obama-submits-national-security-strategy-to-congress/, accessed October 2015.
(13) National Security Act, 1947. https://www.nsa.gov/about/cryptologic_heritage/60th/interactive_timeline/Content/1980s/documents/19861001_1980_Doc_NDU.pdf, accessed October 2015.
(14) Goldwater-Nichols defence Reorganisation Act, 1986. https://www.nsa.gov/about/cryptologic_heritage/60th/interactive_timeline/Content/1980s/documents/19861001_1980_Doc_NDU.pdf, accessed October 2015.
(15) Budget Control Act (BCA), 2011. http://www.gpo.gov/fdsys/pkg/PLAW-112publ25/pdf/PLAW-112publ25.pdf, accessed October 2015.
(16) Amy Belasco, 'defence Spending and the Budget Control Act Limits', Congressional Research Service, 22 July 2015. https://www.fas.org/sgp/crs/natsec/R44039.pdf, accessed October 2015.
(17) Janine Davidson and Emerson Brooking, 'How the Overseas Contingency Operations Fund Works—and Why Congress Wants to Make It Bigger', Council on Foreign Relations, 16 June 2015. http://blogs.cfr.org/davidson/2015/06/16/how-the-overseas-contingency-operations-fund-works-and-why-congress-wants-to-make-it-bigger/, accessed October 2015.
(18) Kay King, Council on Foreign Relations, 'Congress and National Security'. Council Special Report no. 58, November 2010. https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=7&cad=rja&uact=8&ved=0CDwQFjAGahUKEwjD8sP29LrIAhXEtBQKHaArBws&url=http%3A%2F%2Fwww.cfr.org%2Fcontent%2Fpublications%2Fattachments%2FCongress_CSR58.pdf&usg=AFQjCNGKaB_jxnunRviY9Itznvw5QY3V7Q, accessed October 2015.
(19) Joshua W. Busby, Jonathan Monten, Jordan Tama, and William I, 'Congress Is Already Post-Partisan', Foreign Affairs, January 2013. https://www.foreignaffairs.com/articles/united-states/2013-01-28/congress-already-post-partisan, accessed October 2015.
(20) Pat Towell, Congressional Research Service, 'defence: FY2015 Authorization and Appropriations', 28 January 2015. https://www.fas.org/sgp/crs/natsec/R43788.pdf, accessed October 2015.
(21) National defence Authorization Act for FY 2015, 25 May 2015. http://docs.house.gov/billsthisweek/20150511/Rules_Print_HR1735_xml.pdf, accessed October 2015.
Opinion: Agree with Comments
Comment: Congressional knowledge and scrutiny of defence contracts, ideally, would be greater than they are at present. There is considerable literature on this point, particularly with regard to private military and security companies, e.g., Ann Hagedorn's recent book, The Invisible Soldiers, which concerns not only prime contractors but the multitude of sub-contractors as well.
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Does the country have an identifiable and effective parliamentary defence and security committee (or similar such organisation) to exercise oversight?
The Rules of the House of Representatives and the Rules of the Senate assign most defence oversight functions to the Armed Services Committees of both houses. Both committees are active: they hold hearings, analyse budgetary issues, and issue reports available on their websites. They have subpoena powers to compel private individuals and government employees to testify.
The committees both appear to have ample staffs (including military and legal advisers) and bipartisan membership (see the 'About' sections on both committees' websites). They also have recourse to the expertise of the Library of Congress and the Government Accountability Office: GAO produced 142 reports on national defence in 2013 and the CRS produced 43 reports in 2013.
Budget scrutiny is performed by the House and Senate Committees on Appropriations, which scrutinise and amend defence budget proposals submitted by the Department of defence.
The Federation of American Scientists Intelligence Resource Program provides public access to all testimony provided to Congress by government and non-government officials on defence policy and budget, as well as transcripts of floor debates and all relevant legislation.
Response to peer reviewer 1: No additional sources have been suggested to guide the analysis, and impact of an 'insider culture' is difficult to quantify. Score maintained as the committees have ample formal rights and resources, and are active.
1) U.S. House of Representatives Committee on Armed Services 113th Congress Oversight Plan. http://armedservices.house.gov/index.cfm/files/serve?File_id=3ede37c2-2fb7-4fb2-a064-e88b24c938f1
2) House Committee on Armed Services, http://armedservices.house.gov/
3) House Committee on Appropriations, http://appropriations.house.gov/
4) Subcommittee on defence, http://appropriations.house.gov/subcommittees/subcommittee/?IssueID=34795
5) House Permanent Select Committee on Intelligence, http://intelligence.house.gov/
6) House Committee on Homeland Security, http://homeland.house.gov/
7) Senate Committee on Armed Services, http://www.armed-services.senate.gov/
8) Senate Committee on Appropriations, http://www.appropriations.senate.gov/
9) Subcommittee on defence, http://www.appropriations.senate.gov/subcommittee/defence
10) Senate Committee on Homeland Security & Governmental Affairs, http://www.hsgac.senate.gov/
11) Senate Select Committee on Intelligence, http://www.intelligence.senate.gov/
12) GAO, National defence reports, http://www.gao.gov/browse/topic/National_defence
13) CRS, https://www.fas.org/sgp/crs/natsec/
14) Federation of American Scientists Intelligence Resource Program, http://www.fas.org/irp/congress/2013_hr/ and http://www.fas.org/irp/congress/index.html
15) Washington Post. "Armed Services committees reject White House blueprint for military budget cuts," http://www.washingtonpost.com/world/national-security/armed-services-committees-reject-white-house-blueprint-for-military-budget-cuts/2014/05/24/c4b40024-e2bd-11e3-810f-764fe508b82d_story.html
16) Karen L. Haas, Clerk of the House of Representatives. 'Rules of the House of Representatives, 114th Congress'. 6 January 2015. http://clerk.house.gov/legislative/house-rules.pdf, accessed October 2015.
17) 'Rules of the Senate: Standing Committees'. http://www.rules.senate.gov/public/index.cfm?p=RuleXXV, accessed October 2015.
18) National defence Authorization Act for FY 2015, 25 May 2015. http://docs.house.gov/billsthisweek/20150511/Rules_Print_HR1735_xml.pdf, accessed October 2015.
Opinion: Agree with Comments
Comment: The assessor's comments are true but say nothing about outcomes. In the US, defence policy, like policy in other areas, is characterized by an insiders' culture that includes high-dollar campaign contributors, for example.
Suggested score:
Opinion: Agree with Comments
Comment: For the country assessor's reference to the number of publications reviewing national defence by the Government Accountability Office (GAO) and Congressional Research Service (CRS), the 2014 (Jan-01 to Dec-31) numbers are: 142 reports by GAO and 43 CRS reports.
Suggested score:
Is the country's national defence policy debated and publicly available?
There are two major strategic review documents in the United States: the National Security Strategy (NSS) and the Quadrennial defence Reviews (QDRs). The 1997 National defence Authorization Act mandated that QDRs should be prepared every four years, in order to thoroughly examine US defence policies, the state and requirements of the armed forces, and the future budgetary requirements. The National Security Strategy, identifying the major international challenges and risks, is to be prepared by the President and the National Security Council annually, as mandated by the Goldwater-Nichols Act.
Both the current National Security Strategy and the 2014 QDR are available online (8, 10). The QDRs have been published on time since 1997; however, before 2015, the National Security Strategy was published in 2010 and before that, in 2006, which means that the requirement of annual publication has not been fulfilled. (9)
Both documents are extensively debated once they are released, with debates in Congress (including committees) and commentaries from the media, think tanks and CSOs. (1-7, 12, 15, 16) However, they are prepared without a formal public consultation: while the NSS is consulted with government departments and on occasion feedback is invited from academics and think tanks, there is no structured public consultation process. The same applies to the QDR, which is prepared by the DoD in consultation with the Chiefs of Staff. (17)
Response to peer reviewer 1: score revised after further analysis. Score 2 selected to reflect slips in the timeliness of updates to the National Security Strategy and lack of a structured public consultation process on the NSS.
1) POGO, http://www.pogo.org/our-work/straus-military-reform-project/defence-budget/2014/americas-one-trillion-national-security-budget.html
2) Center for Strategic and International Studies, defence and National Security Group,
http://csis.org/program/us-defence-and-national-security
3) Federation of American Scientists Intelligence Resource Program,
http://fas.org/programs/ssp/man/index.html
4) The Brookings Institution, Center for 21st Century Security and Intelligence, http://www.brookings.edu/about/centers/security-and-intelligence
5) Justia Regulation Tracker, http://regulations.justia.com/regulations/fedreg?agency=91&proposed_rule=yes®isters=all&min-day=1&min-month=1&min-year=2005&max-day=27&max-month=10&max-year=2014&keywords=
6) Senate defence Subcommittee: FY15 Department of defence Budget Hearing, June 18, 2014, http://www.appropriations.senate.gov/webcast/defence-subcommittee-fy15-department-defence-budget-hearing
7) Senate defence Committee oversight hearings 2014, http://www.appropriations.senate.gov/hearings/defence
8) President of the United States, 'National Security Strategy', February 2015. https://www.whitehouse.gov/sites/default/files/docs/2015_national_security_strategy.pdf, accessed October 2015.
9) National Security Strategy Reports, National Security Strategy Archive. http://nssarchive.us/, accessed October 2015.
10) Department of defence, 'Quadrennial defence Reviews'. http://archive.defence.gov/Home/features/2014/0314_sdr/qdr.aspx, accessed October 2015.
11) Department of defence, 'QDR 101: What You Should Know'. http://archive.defence.gov/Home/features/2014/0314_sdr/qdr/docs/QDR_101_FACT_SHEET_January_2010.pdf, accessed October 2015.
12) Jake Miller, 'Obama submits national security strategy to Congress', CBS News, 6 February 2015. http://www.cbsnews.com/news/obama-submits-national-security-strategy-to-congress/, accessed October 2015.
13) National Security Act, 1947. https://www.nsa.gov/about/cryptologic_heritage/60th/interactive_timeline/Content/1980s/documents/19861001_1980_Doc_NDU.pdf, accessed October 2015.
14) Goldwater-Nichols defence Reorganisation Act, 1986. https://www.nsa.gov/about/cryptologic_heritage/60th/interactive_timeline/Content/1980s/documents/19861001_1980_Doc_NDU.pdf, accessed October 2015.
15) Peter Baker and David E. Sanger, 'Security Strategy Recognizes U.S. Limits', New York Times, 5 February 2015. http://www.nytimes.com/2015/02/06/us/politics/security-strategy-recognizes-us-limits.html, accessed October 2015.
16) Rebecca Davis Gibbons, 'Nuclear nonproliferation is under threat, and so is American national security', Washington Post, 14 February 2015. https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/02/14/the-2015-national-security-strategy-and-the-future-of-nuclear-nonproliferation/, accessed October 2015.
17) Alan G. Stolberg, 'How nation-states craft national security strategy documents', U.S. Army War College Strategic Studies Institute 2012. http://www.strategicstudiesinstitute.army.mil/pdffiles/PUB1128.pdf, accessed October 2015.
Opinion: Agree with Comments
Comment: The assessor, again, is correct, but it is difficult to discern the degree of public participation in defence policy debates.
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Do defence and security institutions have a policy, or evidence, of openness towards civil society organisations (CSOs) when dealing with issues of corruption? If no, is there precedent for CSO involvement in general government anti-corruption initiatives?
The U.S. Constitution and Bill of Rights protect citizens' rights of free speech and assembly. There are numerous NGOs focused on defence policy and budget, many of which are critical of U.S. policy. Civil society plays an active role in overseeing government actions and calling for accountability, including promoting transparency and accountability (e.g., POGO; Center for Public Integrity; Watchdog; Center for Responsive Politics/Open Secrets) and protecting taxpayers from wasteful spending (e.g., TaxPayers Protection Alliance). The media to a great extent also provides a way for civil society to voice its concerns about the defence agencies' transparency and accountability, and examples of CSOs asking the DOD Inspector General to investigate alleged wrongdoing are known. (14) An investigation ensued, and although the officer was cleared, a report on the incident was made public. In addition, Civil Society has access to reports from the defence Agencies through FOIA. No evidence of criticism of the DOD's FOIA processing office has been found.
The U.S. scorecard on the 2011 Global Integrity Report awarded DOD a score of 100 regarding the safety of CSO activists when working with DOD regarding corruption issues. Representatives of defence agencies such as the defence Institute of International Legal Studies have engaged with the representatives of civil society on the issue of corruption. (13)
Significant lobbying on behalf of defence companies (as well as the phenomenon of revolving door which facilitates access and potential financial contributions to political campaigns) could outweigh the ability of civil society to influence the government. Research on the revolving door effect on defence decision-making found that 3.8% of people in the revolving door database created by opensecrets are in the defence Department. (9) Also, from 2003 to 2014, 97 members of Congress have gone on to lobby for the defence industry. However, the assessor has not found evidence showing that defence industry lobbying directly undermines the engagement of civil society with government to promote accountability, transparency, and efficiency, generally or on corruption issues specifically. Moreover, a significant amount of the engagement with CSOs is with career civil servants who are not directly affected by lobbying or revolving door or campaign finance issues.
The Obama administration is reported to have &quoute;prosecuted more national security &quoute;leakers&quoute; than all other presidencies combined,&quoute; according to the ACLU. (11) Though this doesn't necessarily inhibit engagement between civil society and the defence establishment, it is believed by the Committee to Protect Journalists to have made government officials &quoute;increasingly afraid to talk to the press.&quoute; (12)
In sum, it is clear that there are opportunities for civil society to engage with the government on defence issues; however, there is not sufficient evidence to warrant the award of score 4.
1) United States Constitution, First Amendment. Available at http://www.archives.gov/exhibits/charters/constitution_transcript.html
2) Global Integrity Report. US scorecard 2011. Anti-Corruption Non-Governmental Organizations,
https://indabaplatform.com/ids/widgets/vcardDisplayIndicators.html?horseId=653&includeLogo=1&version=1&frameId=frame1&helper=https%3A%2F%2Fwww.globalintegrity.org%2Findaba_widget_helper.html&subcatId=7
3) DOD Civil Liberties Program, http://www.dodig.mil/programs/CivilLiberties/index.html
4) Example of DOD and civil society organization (CSO) cooperation - U.S. National Action Plan on Women, Peace, and Security: Progress and Challenges, http://www.usip.org/events/partners-in-peace-and-security
5) Peace Operations Institute, http://peaceops.org/poi/index.php?option=com_content&task=view&id=12&Itemid=26
6) U.S. National Action Plan on Women, Peace, and Security: Progress and Challenges, http://www.usip.org/events/partners-in-peace-and-security
7) DOD Civil Liberties Program, http://www.dodig.mil/programs/CivilLiberties/index.html
8) Source on Lobbying: http://www.publicintegrity.org/national-security/gift-economy; http://www.publicintegrity.org/2015/02/05/16719/defence-industrys-friend-inside-congress-and-outside-congress
9) Source on Revolving door: http://www.opensecrets.org/revolving/top.php?display=I
10) Source on monetary contributions: http://www.opensecrets.org/news/2011/12/buying-the-joint-strike-fighter-caucus/
11) American Civil Liberties Union, &quoute;On Leak Prosecutions, Obama takes it to 11 (or should we say 526?)&quoute; https://www.aclu.org/blog/leak-prosecutions-obama-takes-it-11-or-should-we-say-526 (accessed September 2015)
12) Committee to Protect Journalists, &quoute;Leak Investigations and surveillance in post-9/11 America,&quoute; 10 October 2013, https://cpj.org/reports/2013/10/obama-and-the-press-us-leaks-surveillance-post-911.php (accessed September 2015)
13) 'Fighting corruption in the security and defence sector', 16th International Anti-Corruption Conference, September 2015. https://16iacc.sched.org/event/3d31f653ed093584ef6e1b55c6fbc3e7#.Vhq7IrSqqko, accessed October 2015.
14) Austin Wright et al, 'Top Navy nominee cleared of improper lobbying', 21 July 2015. http://www.politico.com/story/2015/07/navy-nominee-john-richardson-cleared-improper-lobbying-120430, accessed October 2015.
Opinion: Agree with Comments
Comment: The main question here is about the definition of corruption. If it is limited to bribery or kickbacks, for example, then the assessor is correct. If, however, corruption encompasses revolving door relationships and campaign contributions, then it is quite a different matter.
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Has the country signed up to international anti-corruption instruments such as, but not exclusively or necessarily, UNCAC and the OECD Convention? (In your answer, please specify which.)
The United States ratified the United Nations Convention against Corruption (UNCAC) on Oct. 20, 2006 and incorporated its provisions into law. Additionally, the United States has ratified the OECD Convention on Feb. 15, 1999 and has consistently closed the highest number of cases in relation to corruption issues.
Other examples of engagement on anti-corruption include participation in international forums and meetings, notably APEC and G20. APEC has implemented an anti-corruption program since 2004 and the G20 has adopted and advocated an anti-corruption agenda globally. The US and Turkey co-chaired the G20 Anti-Corruption Working Group during its first meeting in march 2015.
A country assessment of UNCAC implementation in 2013 round that &quoute;overall, the domestic criminalization provisions comply with the UNCAC requirements&quoute; and noted that significant resources were devoted to tackling corruption. It recommended two actions: periodic review of policies on facilitation payments, and continuing efforts to amend federal legislation surrounding mandatory UNCAC offences as predicate offences for money-laundering purposes.
1) UNCAC Ratification, Oct. 20, 2006, https://www.unodc.org/unodc/en/treaties/CAC/signatories.html
2) OECD Convention ratification, Feb. 15, 1999, http://www.oecd.org/daf/anti-bribery/antibriberyconventionratification.pdf
3) Inter-American Convention ratification, Sept. 15, 2000, http://www.oas.org/juridico/english/sigs/b-58.html
4) TI UN Convention against Corruption Progress Report 2013, http://issuu.com/transparencyinternational/docs/2013_uncacprogressreport_en?e=2496456/5750980
5) USA UNCAC Self Assessment Report, 07/10/2010, http://www.state.gov/documents/organization/158105.pdf
6) UNODC, United States of America Country profile, https://www.unodc.org/unodc/treaties/CAC/country-profile/profiles/USA.html
7) UNCAC Coalition Review, http://www.uncaccoalition.org/en/uncac-review/cso-review-reports
8) TI, "Exporting Corruption Progress Report 2013: Assessing Enforcement of the OECD Convention on Combating Foreign Bribery," http://issuu.com/transparencyinternational/docs/2013_exportingcorruption_oecdprogre
9) OECD Convention, United State Country Profile Phase 2 implementation, http://www.oecd.org/daf/anti-bribery/unitedstates-oecdanti-briberyconvention.htm
10) Steps taken to implement and enforce the OECD Convention,
http://www.oecd.org/daf/anti-bribery/anti-briberyconvention/42103833.pdf
11) APEC Actions: Santiago Commitment to Fight Corruption and Ensure Transparency. http://www.apec.org/~/media/Files/Groups/ACT/04_amm_032rev1.pdf
12) APEC Course of Action on Fighting Corruption and Ensuring Transparency, http://www.apec.org/~/media/Files/Groups/ACT/04_amm_033rev2.pdf
13) G20, Agenda for Action on Combating Corruption, Promoting Market Integrity, and
Supporting a Clean Business Environment, http://www.oecd.org/g20/topics/anti-corruption/G20_Anti-Corruption_Action_Plan.pdf
14) G20, Anti-Corruption Working Group Progress Report 2013, http://www.mofa.go.jp/files/000014208.pdf
15) UNODC, 'Country Review Report of the United States of America', 2013. http://www.unodc.org/documents/treaties/UNCAC/CountryVisitFinalReports/2013_11_19_USA_Final_Country_Report.pdf
16) G20, 'First G20 Anti-Corruption Working Group Meeting held in Istanbul', March 2015. https://g20.org/first-g20-anti-corruption-working-group-meeting-held-in-istanbul/, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there evidence of regular, active public debate on issues of defence? If yes, does the government participate in this debate?
There are numerous academic and non-profit organizations specializing in defence and national security. The debate is a constant one, with much of it critical of government actions and decisions. These organizations regularly host widely publicized conferences (some open to the general public) in order to stimulate debate on various defence and national security issues. It is common for U.S. governmental officials as well as active U.S. military officers to play an active role in these forums, often appearing as keynote speakers or as an expert on issue panels for these gatherings. Notable examples include the PONI Capstone Conference for the Center for Strategic International Studies, during which several high ranking military officers, as well as analysts from the Department of Commerce, were invited to host panels and speak. Additionally, in 2013, the Brookings Institution and the National Intelligence University co-hosted a discussion with the director of the defence Intelligence Agency (DIA).
One example of a government-affiliated institution conducting public debates is the National defence University (NDU), which has numerous relationships with NGOs and academics and hosts discussions on almost all topics regarding national security. U.S. Government officials and military personnel often appear as guest speakers and keynote speakers during these public talks.
1) Center for Strategic and International Studies, Restructuring Army Aviation, Apr. 8, 2014, http://csis.org/event/restructing-army-aviation
2) Military Strategy Forum: General Mark A. Welsh III on the Future of the Air Force, Mar. 27, 2014, http://csis.org/event/military-strategy-forum-general-mark-a-welsh-III
3) Poni Capstone Conference Agenda, Mar 25, 2014, http://csis.org/event/poni-capstone-conference
4) Stimson Center, Conversation with Gen. John R. Allen USMC (Ret.), http://www.stimson.org/events/chairmans-forum-with-gen-john-r-allen-usmc-ret/
5) "Strategic Agility Assessment of the President’s FY2015 defence Budget," Mar. 19, 2014, http://www.stimson.org/books-reports/strategic-agility-assessment-of-the-presidents-fy2015-defence-budget/
6) Heritage Foundation, defence Spending, http://solutions.heritage.org/defence-spending/
7) The Brookings Institution "A New Model for defence Intelligence," Nov. 20, 2013, http://www.brookings.edu/events/2013/11/20-new-model-defence-intelligence
8) The Brookings Institution, "How Might U.S. defence Policy Change in the Years Ahead?" with Congressman Mac Thornberry and Congressman Rick Larsen, Mar. 3, 2014, http://www.brookings.edu/events/2014/03/03-us-defence-policy-and-budget
9) The Brookings Institution,. http://www.brookings.edu/research/topics/u-s-defence-budget
10) National defence University, http://www.ndufoundation.org/page.aspx?pid=337
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Does the country have an openly stated and actively implemented anti-corruption policy for the defence sector?
There is no single document setting out an anti-corruption policy for the US defence sector and containing specific implementation plans. However, there are legal regulations and codes of conduct which contain anti-corruption provisions, and their cumulative effect is close to an anti-corruption policy.
Presidential Executive Order 12674, issued on April 12, 1989, and revised by Executive Order 12731, sets out fourteen basic principles of ethical conduct for executive branch personnel, including civilian and military personnel in DOD. Under these Executive Orders, the Office of Government Ethics (OGE) has established a single and comprehensive set of standards of ethical conduct for U.S. Government employees. OGE’s Standards of Ethical Conduct for Employees of the Executive Branch is codified in 5 C.F.R. Part 2635 and state:
(1) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain.
(2) Employees shall not hold financial interests that conflict with the conscientious performance of duty.
(3) Employees shall not engage in financial transactions using nonpublic Government information or allow the improper use of such information to further any private interest.
(4) An employee shall not, except as permitted by subpart B of this part, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee's agency, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties.
(5) Employees shall put forth honest effort in the performance of their duties.
(6) Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the Government.
(7) Employees shall not use public office for private gain.
(8) Employees shall act impartially and not give preferential treatment to any private organization or individual.
(9) Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.
(10) Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.
(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
(12) Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those—such as Federal, State, or local taxes—that are imposed by law.
(13) Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.
(14) Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.
In addition to the standards of ethical conduct set forth above, there are conflict of interest statutes that prohibit certain conduct and criminal conflict of interest statutes of general applicability to all government employees, see e.g. 18 U.S.C. 202, 203, 205, 208, and 209.
Further, all agencies may adopt supplemental ethical standards applicable to their agency employees. The DOD has adopted supplemental standards which are found at 5 C.F.R. Part 3601.
Related to defence procurement specifically, the defence Federal Acquisition Regulation, governs all procurement by the Department of defence and contains numerous provisions to promote procurement integrity and prevent corruption.
The Office of Government Ethics also issues legal advisories to provide guidance on the applicability of the standards to certain specific situations. The DOD’s Office of the Secretary of defence is tasked with implementing an ethics program for the agency and has designated agency ethics officials and has a Standards of Conduct Office to implement the program.
All these rules incorporate anti-corruption provisions. For example, they bar conflicts of interest in the workplace, require financial disclosure of government officials with discretionary decision making authority (including all procurement officials), prohibit certain post-government employment activities, bar the receipt of gifts valued at more than $20; and bar activities that would allow them to use their public office for private gain, included imputed gain such as gain to family members. The provisions also bar fraudulent conduct and address conduct which may give the appearance of violations of the standards. Information from the agencies’ implementation and enforcement bodies and outside sources indicate these standards and rules are implemented and enforced as is covered in the answer to question 8.
Response to peer reviewer 1: Standards and rules are in place that address all types of corrupt activity. All the defence agencies have ethics offices that are tasked with implementing the ethics programs (through preventive programs and enforcement actions) and IG offices that are independent and investigate and enforce the rules and standards. These offices issue reports and their activities and the implementation of the ethics programs are periodically reviewed by the OGE. Criminal matters are sent to the Department of Justice. The implementing and enforcement offices of the DOD are very active. How well the offices are implementing the programs is addressed in question 8.
According to the 2014 OGE review of the DOD's ethics program, there is review of financial disclosures by applicable personnel and in-person training with senior officers provided to personnel on all ethics standards. There is ethics counselling and hotlines for reporting wrongdoing. There is a process of denial or approval of post-government and outside government employment activities. The conflict of interest rules have a screening process to, and special ethics agreements for certain activities to ensure compliance. The office created an encyclopaedia of ethical failures for training use which provides practical guidance to personnel. Temporary personnel are also subject to the ethics standards. In 2013, there was one criminal matter referred to OIG, and 125 disciplinary actions. See US OGE, Ethics Program Review, Department of defence, Office of the Secretary, July 2015, cited above. Hundreds of criminal convictions against military or defence personnel, many of them involving bribery, are cited in the Inspector General's website.
Numerous policies on the issue of private outsourcing of defence and security have been adopted, but there is still more to do (see 16). defence Federal Acquisition Regulation Supplement (DFARS) and Procedures, Guidance, and Information (PGI), which are relevant to private security contractors, cover issues of improper business practice, accountability, and whistleblowing. There is a lack of public access to the actual contracts and to information on misconduct involving corruption by contractors, however, which makes enforcement difficult to measure.
In sum: Though we found no specific implementation plans, there is a plethora of anti-corruption policies and broader ethical guidance, and disciplinary enforcement for violations; and while enforcement of private security companies' regulations is difficult to measure, the policies are in place, and this is not the primary focus of this question. The score therefore remains 3, given there is no specific anti-corruption policy for the defence sector.
1) Ethics in Governments Act of 1978, Title 5 Appendix, http://www.gpo.gov/fdsys/granule/USCODE-2010-title5/USCODE-2010-title5-app-ethicsing
2) Exec. Order No. 12674, Fed. Reg. 15159 (Apr. 12, 1989), http://www.oge.gov/Laws-and-Regulations/Executive-Orders/Executive-Order-12674-%28Apr--12,-1989%29---Principles-of-Ethical-Conduct-for-Government-Officers-and-Employees/
3) Exec. Order No. 12731, Fed. Reg. 42547 (Oct. 17, 1990), http://www.oge.gov/Laws-and-Regulations/Executive-Orders/Executive-Order-12731-%28Oct--17,-1990%29---Principles-of-Ethical-Conduct-for-Government-Officers-and-Employees/
4) 5 CFR Part 2635 - Standards of Ethical Conduct for Empl;oyees of the Executive Branch -- http://www.oge.gov/Laws-and-Regulations/OGE-Regulations/5-C-F-R--Part-2635---Standards-of-ethical-conduct-for-employees-of-the-executive-branch/
4) 5 CFR Part 3601- Supplemental Standards of Ethical Conduct for Employees of DOD, http://www.law.cornell.edu/cfr/text/5/part-3601
5) DOD 5500.07, Standards of Conduct (Nov. 29.2007), http://www.dod.mil/dodgc/defence_ethics/ethics_regulation/
6) DOD 5500.07 The Joint Ethics Regulation (JER) (Nov. 17, 2011), http://www.dod.mil/dodgc/defence_ethics/ethics_regulation/
7) Federal Acquisition Regulations: http://www.gsa.gov/portal/content/101126
8) Central Intelligence Agency Code of Conduct, Employee Bulletin, EB No. 911, http://ethics.iit.edu/ecodes/node/3401
9) Department of Homeland Security, Ethics/Standards of Conduct, Management Directives System, MD Number: 0480.1 (3/01/2003) http://www.dhs.gov/xlibrary/assets/foia/mgmt_directive_0480_1_ethics_standards_of_conduct.pdf
11) DOD Inspector General Office: News on Enforcement Actions: http://www.dodig.mil/pubs/info.cfm?start=11
12) OGE’s 2013 Report on DOD’s Ethics Program: http://www.oge.gov/DownloadAsset.aspx?id=8589960918
13) Office of Government Ethics, Recent Cases Involving Ethics and Conflicts of Interest at the Merit Systems Protection Board, August 2011, http://www.oge.gov/uploadedFiles/Education/Education_Resources_for_Ethics_Officials/Resources/Assets_Non-Searchable/Breakout%2049%20Real%20Ethics%20Tips%20and%20Trends%20in%20Ethics%20Enforcement%20Discipline%20for%20Violations%20of%20COI%20Statutes.pdf
14) BusinessInsider.com, Geoffrey Ingersoll, 18 of the Most outrageous Military Ethics Violations, July 25, 2013, http://www.businessinsider.com/18-outrageous-military-ethics-violations-2013-7?op=1#ixzz3HMW6DRMd
15) DOD Inspector General Information Releases. http://www.dodig.mil/pubs/info.cfm?start=11, accessed October 2015.
16) University of Denver, Private Security Monitor. http://psm.du.edu/national_regulation/united_states/laws_regulations/defence.html, accessed October 2015.
Opinion: Disagree
Comment: I recommend a change from 4 to 2, since the existence of the measures listed does not translate into implementation. This does not mean that government employees in the DOD, for example, are corrupt; it simply suggests that the outsourcing of defence and security, in particular, proceeds without substantive reforms.
Suggested score: 2
Opinion: Agree
Comment:
Suggested score:
Are there independent, well-resourced, and effective institutions within defence and security tasked with building integrity and countering corruption?
The Inspector Generals (IGs) at U.S. agencies, including the Department of defence (DOD), are established by law and act independently of the agency head. DOD has an IG office charged with maintaining integrity. It publishes reports on its website, with over 140 available from 2013. The DOD IG has also created an Ombudsman as an independent, objective platform for the resolution of informal conflicts within the workforce. A DOD hotline is also available to report 'fraud, waste and abuse'. It lists recent investigations on its website.
The IG has a dual reporting relationship with Congress, which prevents interference from agency management. According to the Association of Government Accountants' (AGA) 2013 Inspector General Survey, most IGs see no major impediments to their independence.
The Council of the Inspectors General on Integrity and Efficiency (CIGIE) publishes an annual Progress Report to the President that evaluates the performance of the IG community. According to the Fiscal Year 2013 report, the work of IG helped save approximately $51.8 billion in government spending. In FY 2013, IG community closed 25,260 investigations and conducted 7,618 audit, inspection and evaluation reports.
The Inspector General system has garnered some criticism regarding its effectiveness generally, which some have attributed to Inspector General vacancies and a focus more on outputs than outcomes. More specific Department of defence concerns have arisen with regards public accessibility by way of unreasonable delays in the completion of Inspector General reports and/or sealing or heavily redacting finalized reports. The vacancies from the Department of Veteran Affairs from 2013 to 2015 have also raised questions and criticism of IG’s effectiveness and accountability.
The defence agencies also have designated ethics officers within the agency charged with implementing the ethics programs (described earlier). Within the DOD, the Standards of Conduct Office is responsible for interpreting the standards and providing advice on their implementation. The implementation by these agency ethics officers is monitored and reviewed by the Office of Government Ethics, which is independent but part of the Executive Branch.
There are other government institutions, such as GAO and CRS, in addition to Congress, that oversee the defence agencies adherence to rules and standards of transparency and integrity. However, these are not part of the defence and security agencies.
Response to Peer Reviewer 1: No evidence has been provided to support the suggestion of score change. Score 3 appears to reflect the current situation best.
Response to Peer Reviewer 2: Comments incorporated.
1) DOD IG, Consolidating Listing of Reports 2015: http://www.dodig.mil/pubs/index.cfm?start=1&searchdate1=01%2F01%2F2015&searchdate2=09%2F01%2F2015&submit2=View
2) AGA’s Annual Inspector General Survey 2013: Effective Oversight in a Changing Environment
Council of the Inspectors General on Integrity and Efficiency: Progress Report to the President Fiscal Year 2013
3) GAO’s Performance and Accountability Report: http://www.gao.gov/about/performanceaccountabilityreport/overview#t=0
4) Project On Government Oversight (POGO): Inspector General Oversight, http://www.pogo.org/our-work/our-work-issue.html?related_content_tags=inspector-general-oversight
5) Project on Government Oversight 2014 Report on Watchdogs, http://www.pogo.org/our-work/reports/2014/watching-the-watchdogs-the-good-the-bad-and-what-we-need.html
6) DOD IG, Consolidated Listing of Reports, http://www.dodig.mil/pubs/index.cfm?start=121&searchdate1=1/1/2013&searchdate2=12/31/2013
7) DOD IG, Hotline, http://www.dodig.mil/Hotline/faq.html
8) DOD IG Ombudsman, http://www.dodig.mil/Ombudsman/role.html
9) DOD Office of the Inspector General Ombudsman, Administrative Investigations, http://www.dodig.mil/AI/index.html
10) GAO, Reports and Testimonies, National defence, http://www.gao.gov/browse/topic/National_defence/?&rows=10&o=20&now_sort=issue_date_dt+desc&o=40
11) The Wall Street Journal. "Serious Conditions’ at Phoenix Veterans Affairs Office, Watchdog Says," http://online.wsj.com/articles/serious-conditions-at-phoenix-veterans-affairs-office-watchdog-says-1401297619
12) The Seattle Times, "Former Seattle ATF supervisor indicted in embezzlement case." http://www.seattletimes.com/html/localnews/2022309022_atfindictment1xml.html
13) Council of the Inspectors General, &quoute;Are IGs Independent?&quoute;, http://www.ignet.gov/igs/faq1.html#ind
14) Project on Government Oversight, &quoute;Watching the Watchdogs,&quoute; http://www.pogo.org/our-work/reports/2014/watching-the-watchdogs-the-good-the-bad-and-what-we-need.html (accessed Sept. 2015)
15) U.S. Department of defence Standards of Conduct Office, http://www.dod.mil/dodgc/defence_ethics/, accessed October 2015.
Opinion: Disagree
Comment: Score should be changed from 3 to 2. As in other policy domains, integrity is subject to different understandings, e.g., rule-following or compliance is typically the operational definition of integrity, though in a wider context rule-following may have little to do with genuine integrity.
Suggested score: 2
Opinion: Agree with Comments
Comment: In many cases, the entities that engage in the oversight of U.S. defence agencies have facilitated broader public conversations about operational shortfalls and gaps in ethics practices. That being said, the Inspector General system has garnered some criticism regarding its effectiveness, generally, which some have attributed to Inspector General vacancies and a focus more on outputs than outcomes. More specific Department of defence concerns have arisen with regards public accessibility by way of unreasonable delays in the completion of Inspector General reports and/or sealing or heavily redacting finalized reports.
Source: Project on Government Oversight. Retrieved from http://www.pogo.org/our-work/reports/2014/watching-the-watchdogs-the-good-the-bad-and-what-we-need.html
Suggested score:
Does the public trust the institutions of defence and security to tackle the issue of bribery and corruption in their establishments?
Public opinion polls demonstrate that Americans retain a high opinion regarding the Department of defence and its ability to deal with corruption. The TI Global Barometer 2013 found that 30% of the respondents felt that the military in the United States was corrupt; in comparison, 73% of respondents thought political parties were corrupt. Further, the military, along with NGOs, were found to be the least corrupt institutions (on the basis of public perceptions) from the twelve institutions surveyed.
One Gallup poll found 73% thought corruption pervasive in the U.S. government but it was not military-specific; a different Gallup poll found the U.S. military was the most trusted government agency, with 76% of the respondents having confidence in the military (in contrast, Congress scored 10%). According to a Gallup poll regarding the general confidence of Americans in governmental institutions, DOD consistently scores the highest as an institution in which Americans have confidence.
That being said, a large majority of the public (76%) supports cuts to defence spending, according to a survey by the Stimson Center. According to R. Jeffrey Smith of the Center for Public Integrity, interviewed by USA Today, the perception of waste in the defence budget is one of the reasons for this.
Response to Peer Reviewer 1: Usually, Gallup polls are the most widely used source of &quoute;public&quoute; opinion. Recently, the coverage of war profiteering by private contractors has abated. Other issues, such as lack of care for veterans coming back from the wars and the serious mismanagement of the Veterans Affairs office, have taken priority. Since the economic recession, the other issue covered by the press and in the public's mind with respect to defence is overspending and failed projects.
While the public's perception of the armed forces and non-corrupt remains relatively high, as shown by the Gallup poll and TI Global Corruption Barometer, perceptions of closely related issues (mismanagement, overspending) are negative. However, as the focus of this question is on corruption and not mismanagement, score 3 was maintained.
1) Gallup Poll. "Confidence in Institutions." http://www.gallup.com/poll/1597/confidence-institutions.aspx
2) Gallup Poll. "Government Corruption Viewed as Pervasive Worldwide: Majorities in 108 out of 129 countries see widespread problem" by Jan Sonnenschein and Julie Ray, 10/18/2013, http://www.gallup.com/poll/165476/government-corruption-viewed-pervasive-orldwide.aspx#2
3) TI, "Global Corruption Barometer 2013 for the United States," http://www.transparency.org/gcb2013/country/?country=united_states
4) "Americans' Confidence in Congress Falls to Lowest on Record: Congress ranks last on list of 16 institutions; military earns top spot again," by Elizabeth Mendes and Joy Wilke, June 13, 2013, http://www.gallup.com/poll/163052/americans-confidence-congress-falls-lowest-record.aspx
5) USA Today, &quoute;Survey: most Americans support defence cuts,&quoute; June 2012 http://usatoday30.usatoday.com/news/military/story/2012-07-16/survey-defence-cuts/56255016/1
Opinion: Disagree
Comment: Score should be changed from 3 to 2.
The assessor may be correct but it is important to note, again, that there are multiple publics that have different levels of understanding and interest in defence policy. For the attentive public, it is fair to say that the literature on war profiteering as evidenced by the pervasive privatization of national security gives one pause as to corruption and integrity in the defence sector.
Suggested score: 2
Opinion: Agree
Comment:
Suggested score:
Are there regular assessments by the defence ministry or another government agency of the areas of greatest corruption risk for ministry and armed forces personnel, and do they put in place measures for mitigating such risks?
The Office of the Deputy Inspector General for Auditing continuously conducts audits on all facets of DoD operations. The work results in recommendations for reducing costs; eliminating fraud, waste, and abuse of authority; improving performance; strengthening internal controls; and achieving compliance with laws, regulations, and policy. The DIGA publishes an annual audit plan in part based on previously identified IG management challenges; Government Accountability Office high-risk areas; and internal risk assessment. (2)
In 2014, the Office of the Inspector General published a guidance document called Approaches for Establishing Fraud Risk Assessments Programs and Conducting Fraud Risk Assessment Audits in the Department of defence, which describes how fraud risk assessments are conducted in different defence agencies and offers different approaches. Fraud risk assessments include assessments of risk of bribery and corruption schemes.
The Department of defence (DOD) has procedures for assessing risks in the procurement cycle that apply to procurement by all branches of the military and to DOD assistance provided to other countries. The defence Contract Audit Agency conducts audits of all procurement contracts. The DOD Audit Manual also contains a section on Internal Controls and Detecting and Reporting Fraud and Non-Compliance with Provisions of Laws, Regulations, Contracts, and Grant Agreements (3).
GAO issues reports on areas of high risk for all government agencies. For DOD in 2015, it has identified the areas of high risk for DOD including financial management, supply chain management, weapons systems acquisition, and contract management. It tracks improvement in these areas the agency. This includes risk of vulnerability to fraud, waste, abuse, and mismanagement. All audits attach recommendations to mitigate risks or strengthen internal controls. The GAO audits have a follow up mechanism that evaluates how many of the recommendations have been implemented and overall, it appears that the DOD does implement these recommendations (12). DOD Instruction No. 7650.03 shows that the DoD has follow up mechanisms for implementing the recommendations of audit bodies.
However, implementation of risk assessments is not always effective. A report by the Special IG for Afghan Reconstruction (SIGAR) noted that the Combined Security Transition Command-Afghanistan has done risk assessments for some of the offices in the Afghan Interior Ministry and defence Ministry that get funding, but SIGAR said even those assessments were inconsistent, subjective and based on changing definitions.
Response to Peer Reviewer 1: No sources have been provided to support the challenge. Score 3 maintained to reflect regular risk assessment with some concerns regarding implementation.
Response to Peer Reviewer 2: Agree. Further comments incorporated. The IG's 'Approaches for Establishing Fraud Risk Assessments Programs and Conducting Fraud Risk Assessment Audits in the Department of defence' was found to be thorough and practical.
1) DOD IG (IG). "Consolidated Listing of Reports," http://www.dodig.mil/pubs/index.cfm?start=121&searchdate1=1/1/2013&searchdate2=12/31/2013
2) DOD IG Audit Plan for 2015: http://www.dodig.mil/Audit/audit_plan.pdf
3) DOD IG Audit Manual: http://www.dtic.mil/whs/directives/corres/pdf/760007m.pdf
4) DOD IG Approaches for Establishing Fraud Risk Assessments Programs and Conducting Fraud Risk Assessment Audits in the Department of defence: http://www.dodig.mil/pubs/documents/DODIG-2014-094.pdf
5) GSA, Office of IG, Office of Audits, "Procurement Fraud Handbook," December 2012, http://www.gsaig.gov/?LinkServID=6486B647-A5DF-C154-010A408470CAE0B8
6) Stars and Stripes, Cid Standifer, "IG: DOD not detailing where billions go in aid to Afghan forces," Dec. 5, 2013, http://www.stripes.com/news/ig-dod-not-detailing-where-billions-go-in-aid-to-afghan-forces-1.256072#document/p8/a135317
7) Special IG for Afghan Reconstruction (SIGAR) , "Comprehensive Risk Assessments of MOD and MOL Financial Management Capacity Could Improve Oversight of over $4 Billion in Direct Assistance Funding," November 2013, http://www.sigar.mil/pdf/alerts/SIGAR_SpecialProjects_14-12.pdf
8) "Risk Management Guide for DOD Acquisition," Sixth Edition, August 2006, http://www.acq.osd.mil/se/docs/2006-RM-Guide-4Aug06-final-version.pdf
9) DOD IG, Auditor Fraud Resources, ttp://www.dodig.mil/Resources/Fraud/introduction.html
10) Inspector General, U.S. Department of defence. 17 July 2014. &quoute;APO Fraud Risk Assessment Report.&quoute; Retrieved from http://www.dodig.mil/pubs/documents/DODIG-2014-094.pdf
11) Department of defence Instruction No. 7650.03, 'Follow-up on Government Accountability Office (GAO), Inspector General of the Department of defence (IG DoD), and Internal Audit Reports', 18 December 2014. http://www.dtic.mil/whs/directives/corres/pdf/765003p.pdf, accessed October 2015.
12) GAO, 'DOD Financial Management. Effect of Continuing Weaknesses on Management and Operations and Status of Key Challenges. Testimony Before the Committee on Homeland Security and Governmental Affairs, U.S. Senate', 13 May 2014. http://comptroller.defence.gov/Portals/45/documents/micp_docs/Reference_Documents/GAO-Effect_of_Continuing_Weaknesses_on_Management_and_Operations.pdf, accessed October 2015.
Opinion: Disagree
Comment: Score should be changed from 3 to 2. As the assessor notes, measures may be in place but implementation of risk assessment is far from effective. This is also in the context of the under-resourced contract negotiation, monitoring, and evaluation staff in the DOD, as well as the multiple contracts involving the State Department and USAID.
Suggested score: 2
Opinion: Agree with Comments
Comment: The DOD IG has published a report on best practices for assessing risks in fraud within the DoD services. The IG has also consulted outside subject matter audit experts in order to provide insight into proper responses for controlling assessed risks.
Source: Inspector General, U.S. Department of defence. 17 July 2014. &quoute;APO Fraud Risk Assessment Report.&quoute; Retrieved from http://www.dodig.mil/pubs/documents/DODIG-2014-094.pdf
Suggested score:
Does the country have a process for acquisition planning that involves clear oversight, and is it publicly available?
10 U.S. Code part IV contains extensive regulations on the DOD procurement cycle process, including needs assessment, contract negotiation and implementation, and asset disposal.
DOD acquisition policy documents described below all contain procedures for acquisition planning, starting from needs assessment, through purchase, maintenance and disposal of assets (the acquisition process is based on a life-cycle assessment of assets). All of these documents are publicly available.
•DOD Directive (DODD) 5000.01. This DOD directive states the policies and principles that guide all defence acquisition programs.
•DOD Instruction (DODI) 5000.02. This DOD instruction establishes a simplified and flexible management system for translating joint capability needs and technological opportunities into acquisition programs.
•defence Acquisition Guidebook. This document provides non-mandatory guidance on best practices, lessons learned, and expectations.
•The Federal Acquisition Regulation (FAR) guides and directs DOD program managers in acquisition planning, as well as other aspects of procurement
•The defence FAR Supplement (DFARS) has additional regulations governing procurement, including acquisition planning.
Oversight over the process is provided by the defence Contract Audit Agency (internally) and by Congressional Armed Services Committees (externally). Significant weaknesses in internal audit (including lack of experience and varying standards) have been diagnosed. (17)
While the acquisitions process is clearly laid out, it has also been criticised as being too complicated and failing to establish clear lines of accountability and responsibility. There are regular efforts to improve the system; the latest comprehensive reform was the Weapon Systems Acquisition Reform Act of 2009, which introduced changes in the organisational structure of the acquisitions programme. Congress has conducted oversight hearings on authorized programmes and the acquisitions policy and processes (15, 16) and further attempted to shape elements of the acquisition procedures through the annual National Defence Authorization Acts. (14)
According to a National defence Magazine article in 2014, defence acquisition in the US is fraught with problems: &quoute;$300 billion in cost overruns in the top 100 programs, and nearly $50 billion in canceled programs over the past decade.&quoute; This assessment is further supported by articles in POGO, The Atlantic and War on the Rocks cited above. This suggests shortcomings in the design of procedures and in oversight.
Response to Peer Reviewer 1: Comments and sources incorporated. Score lowered to 2 based on further research indicating that oversight mechanisms, while in place, lack effectiveness.
1) DOD Directive (DODD) 5000.01, www.dtic.mil/whs/directives/corres/pdf/500001p.pdf
2) DOD Instruction (DODI) 5000.02, www.dtic.mil/whs/directives/corres/pdf/500002_interim.pdf
3) defence Acquisition Guidebook, http://at.dod.mil/docs/defenceAcquisitionGuidebook.pdf
4) Federal Acquisition Regulation, http://www.acquisition.gov/far/
5) defence Federal Acquisition Regulation Supplement (DFARS), http://www.acq.osd.mil/dpap/dars/dfarspgi/current/
6) GAO, "defence Acquisitions: DOD Can Improve Its Management of Configuration Steering Boards," GAO-11-640, Jul 7, 2011, http://www.gao.gov/assets/330/320716.html
7) Moshe Schwartz. "Twenty-five Years of Acquisition Reform: Where Do We Go from Here? " Oct. 29, 2013, http://armedservices.house.gov/index.cfm/hearings-display?ContentRecord_id=df2275cc-a8dd-40dc-878f-ed7afc2cdacd
8) Moshe Schwartz , "defence Acquisitions: How DOD Acquires Weapon Systems and Recent Efforts to Reform the Process, Jan 2, 2013, http://govwin.com/knowledge/dept-of%20defence-contracts
9) Government Executive, &quoute;defence Acquisition Reformers Propose Streamlining Authority, Empowering the Workforce&quoute; http://www.govexec.com/contracting/2014/12/defence-acquisition-reformers-propose-streamlining-authority-empowering-workforce/100253/ (accessed September 2015)
10) Alex Ward, War on the Rocks, &quoute;Don't believe the desense acquisition reform hype,&quoute; January 2015 http://warontherocks.com/2015/01/dont-believe-the-defence-acquisition-reform-hype/
11) Sandra I. Erwin, National Defence Magazine, &quoute;Acquisition Reform: It’s Mostly Up to Congress&quoute; April 2014, http://www.nationaldefencemagazine.org/blog/Lists/Posts/Post.aspx?ID=1693
12) James Fallows, the Atlantic, &quoute;the Tragedy of the American Military&quoute;, January 2015 http://www.theatlantic.com/magazine/archive/2015/01/the-tragedy-of-the-american-military/383516/
13) Project on Government Oversight, Straus Military Reform Project, 'Refusing to Misunderstand the Defece Acquisition Problem,' October 2014 http://www.pogo.org/our-work/straus-military-reform-project/military-reform/2014/refusing-to-misunderstand-the-defence-acquisition-problem.html
14) Moshe Schwartz,Congressional Research Service, 'defence Acquisitions: How DOD Acquires Weapon Systems and Recent Efforts to Reform the Process', 23 May 2014. https://www.fas.org/sgp/crs/natsec/RL34026.pdf, accessed October 2015.
15) United States Senate Armed Services Committee, 'Reform of the defence Acquisition System'. Hearing, 22 April 2015. http://www.armed-services.senate.gov/hearings/15-04-22-reform-of-the-defence-acquisition-system, accessed October 2015.
16) United States House of Representatives Armed Services Committee, '114th Congress Oversight Plan.' http://armedservices.house.gov/index.cfm/files/serve?File_id=A4AF3D41-714F-48ED-975F-F642ABA384C4, accessed October 2015.
16) defence Contract Audit Agency (DCAA), homepage. http://www.dcaa.mil/about_dcaa.html, accessed October 2015.
17) Charles S. Clark, 'defence Acquisition Reformers Propose Streamlining Authority, Empowering the Workforce'. Government Executive, 2 December 2014. http://www.govexec.com/contracting/2014/12/defence-acquisition-reformers-propose-streamlining-authority-empowering-workforce/100253/, accessed October 2015.
18) 10 U.S. Code Part IV, 'Service, Supply and Procurement'. https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-IV, accessed October 2015.
Opinion: Agree with Comments
Comment: Acquisition, a term that makes it sound purely technical, is far from merely technical as a process. This is evidenced by the politically-driven debates over specific weapon systems and their relative priorities. The Government Executive has recently published a piece called &quoute;defence Acquisition Reformers Propose Streamlining Authority, Empowering the Workforce,&quoute; which refers to a report released by the National defence Industrial Association offering recommendations for streamlining the Pentagon's weapons buying process. The key themes of the recommendations are authority and accountability, matching requirements to resources, and evidence-based decision making. One particular finding is that current audit requirements exceed defence Contract Audit Agency capabilities and resources, given that 40 percent of DCAA personnel have five or fewer years in government auditing, and that DCAA management allows variation in practice and culture among its auditors which can be unhelpful.
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is the defence budget transparent, showing key items of expenditure? This would include comprehensive information on military R&D, training, construction, personnel expenditures, acquisitions, disposal of assets, and maintenance.
The US defence budget is publicly available through the annual Congressional Appropriations Acts which define the DOD's expenditure for the upcoming fiscal year. There tend to be two bills applying to DOD: one covering the main budget and providing information on spending for military R&D, training, personnel expenditures, procurement, and maintenance of assets; and another appropriating funds for military construction and veterans affairs. Civil functions performed by DOD personnel, such as, for example, the dredging of some rivers, are covered by appropriations acts for other government departments. The Appropriations Bills and accompanying explanations also break down expenditure in each category, enumerating major programmes and expenses. (1, 11, 12)
While DOD's approved budget is publicly available, the basis that it is prepared on (the Department's budget request to Congress) is not considered entirely transparent. The complexity of the budget makes comprehension difficult and some proposed areas lack detail. For example, the House Committee on Appropriations, which is specifically charged with oversight of DOD budget, stated in 2013 that its oversight of the Special Operations Command budget could not be meaningful as "the request does not contain sufficient detail;" it also criticised the level of detail submitted with some specific programme requests.(1) Lack of transparency of specific programmes also appeared in the 2013 appropriations report, where the Committee criticised, among other issues, the availability of expenditure information on cyber security. (13) POGO has also criticized DOD budget transparency, noting in a letter to the Congress that the transparency of projected and actual service contracts expenditures should be improved.
One of the initiatives under the Open Government National Action Plan is to "Open Up Federal Spending Data." Under this initiative, the United States has undertaken to "make Federal spending data more easily available in open and machine-readable formats." DOD is implementing the Initiative but it is too early to evaluate the results.
The complexity and some challenges on the transparency of the budget proposal, plus the Appropriations Committee's remarks, make it likely that transparency in some areas or functions of the approved budget could be lacking. Score 3 selected.
1) DOD Appropriations Bill, 2014 Report of the House Committee on Appropriations, June 7, 2013, p. 92, http://appropriations.house.gov/uploadedfiles/hrpt-113-hr-fy2014-defence.pdf
2) Robert Beckhusen and Noah Shachtman, "See for Yourself: The Pentagon’s $51 Billion ‘Black’ Budget," Wired, Feb. 15, 2012, http://www.wired.com/2012/02/pentagons-black-budget/
3) Federation of Concerned Scientists, Intelligence Resource Program, "Intelligence Budget Data," http://www.fas.org/irp/budget/index.html?PHPSESSID=70809e6b347db7b2122df1ef24d743e0
4) "POGO Challenges DOD's Disclosure of Budgeting and Spending Service Contract Data," letter to Senator Sherrod Brown, Senator Kirsten Gillibrand and Representative Maurice Hinchey, Oct. 24, 2012, http://www.pogo.org/our-work/letters/2012/20121024-pogo-dod-disclosure-budgeting-spending-service-contract-data.html
5) List of Government Officials Designated to Implement the Open Government Initiative, Michael J. McCord, Principal Deputy, Under Secretary of defence, http://www.whitehouse.gov/open/documents/open-government-directive/officials
6) The Open Government Partnership: Second Open Government National Action Plan for the United States of America, Dec. 5, 2013, http://www.whitehouse.gov/sites/default/files/docs/us_national_action_plan_6p.pdf
7) DOD Open Government Plan, Version 2.1, August 31, 2012, http://open.defence.gov/portals/23/Documents/DOD_Open_Government_Plan_v2.1.pdf
8) USGov spending, http://www.usgovernmentspending.com/us_defence_spending_30.html
9) Office of the Under Secretary of defence, (Comptroller) / Chief Financial Officer, United States DOD, Fiscal Year 2014 Budget Request, April 2013, http://comptroller.defence.gov/Portals/45/Documents/defbudget/fy2014/FY2014_Budget_Request_Overview_Book.pdf
10) DOD Releases Fiscal 2015 Budget Proposal and 2014 QDR, Release No: NR-111-14, March 04, 2014, http://www.defence.gov/Releases/Release.aspx?ReleaseID=16567
11) House of Representatives Committee on Appropriations, 'Bill making appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2016, and for other purposes', 24 April 2015. https://www.congress.gov/114/bills/hr2029/BILLS-114hr2029rh.pdf, accessed October 2015.
12) Pat Towell, 'defence: FY2015 Authorization and Appropriations, FY 2015', 28 January 2015. https://www.fas.org/sgp/crs/natsec/R43788.pdf, accessed October 2015.
13) House of Representatives Committee on Appropriations, 'Department of defence Appropriations Bill 2013. Report.' 25 May 2015. http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt493/pdf/CRPT-112hrpt493.pdf, accessed October 2015.
14) National defence Authorization Act for FY 2015, 25 May 2015. http://docs.house.gov/billsthisweek/20150511/Rules_Print_HR1735_xml.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there a legislative committee (or other appropriate body) responsible for defence budget scrutiny and analysis in an effective way, and is this body provided with detailed, extensive, and timely information on the defence budget?
Every government agency, including DOD and national security agencies, is required to propose annual budgets to the relevant Congressional committees for approval. The defence Subcommittees of the House Appropriations Committee and Senate Appropriations Committee hold numerous hearings—both open to the public and closed for national security reasons - over DOD budgets. The House and Senate Intelligence Committees oversee the budgets of the intelligence agencies and hold both open and closed hearings. Since DOD cannot expend any money within its requested budget without Congressional approval of that budget, the Senate and House committees have the power to influence DOD spending decisions.
However, some areas of the budget are not fully transparent. For example, the House Committee on Appropriations stated that its oversight of the Special Operations Command budget could not be meaningful as "the request does not contain sufficient detail;" it also criticised the level of detail submitted with some specific programme requests.(6) Lack of transparency of specific programmes also appeared in the 2013 appropriations report, where the Committee criticised, among other issues, the availability of expenditure information on cyber security. (13) POGO has also criticized DOD budget transparency, noting in a letter to Congress that: "It is clear that the Comptroller and Office of the Under Secretary of defence for Acquisition, Technology, and Logistics should be directed to reorganize and integrate DOD’s accounting and budgeting systems in such a way as to permit a transparent budget submission to Congress regarding projected and actual expenditures for service contracts."
In addition, lobbying and congressional campaign contributions from the defence industry suggest that impartial congressional oversight could be weakened. According to Open Secrets, &quoute;Individuals and political action committees associated with the defence sector contributed more than $27 million to political candidates and committees during the 2012 campaign cycle;&quoute; $16.4 million to Republican candidates and $11 million to Democratic ones. defence companies also spent about $128 million on lobbying in 2015, at least some of it earmarked for influencing defence spending and potential contracts and some used to help the campaigns of House and Senate members who sit on relevant committees. For example, Rep. Buck McKeon (R-Calif.), chairman of the House Armed Services Committee in 2013, received $567,000 in campaign contributions during the 2012 campaign cycle.
There is no direct evidence of campaign contributions influencing particular items in the defence budget. However, the scale of the contributions and the associated shortcomings in transparency in some areas of the DOD budget proposal warrant a score of 3.
1) House Appropriations Committee. http://appropriations.house.gov/
2) House Appropriations Subcommittee on defence Past Meetings, http://appropriations.house.gov/subcommittees/subcommittee/?IssueID=34795
3) Senate Appropriations Committee, http://www.appropriations.senate.gov/
4) Senate Appropriations Subcommittee on defence Past Meetings, http://www.appropriations.senate.gov/subcommittee/defence
5) U.S. Senate Select Committee on Intelligence, http://www.intelligence.senate.gov/about.html
6) DOD Appropriations Bill, 2014 Report of the House Committee on Appropriations, June 7, 2013, p. 92, http://appropriations.house.gov/uploadedfiles/hrpt-113-hr-fy2014-defence.pdf
7) Robert Beckhusen and Noah Shachtman, "See for Yourself: The Pentagon’s $51 Billion ‘Black’ Budget," Wired, Feb. 15, 2012, http://www.wired.com/2012/02/pentagons-black-budget/
8) Federation of Concerned Scientists, Intelligence Resource Program, "Intelligence Budget Data," http://www.fas.org/irp/budget/index.html?PHPSESSID=70809e6b347db7b2122df1ef24d743e0
9) DOD Releases Fiscal 2015 Budget Proposal and 2014 QDR, Release No: NR-111-14, March 04, 2014, http://www.defence.gov/Releases/Release.aspx?ReleaseID=16567
10) TI Defence and Security Programme, "The Transparency of National Defence Budgets: An Initial Review," September 2011, http://transparency.ge/sites/default/files/post_attachments/Report%20on%20Defence%20Budget%20Transparency.pdf
11) Winslow Wheeler, POGO, &quoute;The Sorry State of Congressional Oversight,&quoute; May 2011, http://www.pogo.org/our-work/straus-military-reform-project/congress/2010/the-sorry-state-of-congressional-oversight.html
12) Open Secrets, &quoute;defence,&quoute; http://www.opensecrets.org/industries/indus.php?Ind=D (accessed September 2015)
13) House of Representatives Committee on Appropriations, 'Department of defence Appropriations Bill 2013. Report.' 25 May 2015. http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt493/pdf/CRPT-112hrpt493.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is the approved defence budget made publicly available? In practice, can citizens, civil society, and the media obtain detailed information on the defence budget?
The US defence budget is largely transparent. A 2011 TI Report, "the Transparency of National Defence Budgets," ranked the U.S. in the highest group of countries for transparency of its defence budget in 2011. The study states that:
"The United States is an example of a country with high defence and security expenditures but also strong budget transparency. With a total of USD 661 billion spent on defence in 2009, accounting for more than 40% of the global total defence expenditure. Yet the United States also provides its citizens with access to the defence budget, which is debated and subject to change by Congress, and scrutinized by the news media."br>
However, there is evidence of some important lapses since. One is security assistance, which goes through both the State and Defence Departments, on which there remains too little transparency. According to the 2013 Aid Transparency Index (IATI), which measures foreign aid transparency by different government departments (some expenditures of the US DOD count as foreign assistance), the US Department of Defence scored 'poor'. The House of Representatives has also attempted to increase transparency in this area. (6)
According to a 2015 Government Accountability Office report on Special Operations Forces (SOF), special operations funding is also an area in which greater transparency is needed: &quoute;DOD has little visibility over total funding to support SOF, primarily because it has not established a requirement or methodology to capture and report this information. Until DOD has more complete information on total funding to support SOF, decision makers will be unable to effectively identify and assess resource needs or weigh priorities and assess budget trade-offs.&quoute; Other sources support this assessment, although it appears that overarching figures are available for analysis. (12)
The Department of defence is also subject to Freedom of Information legislation. The DOD Directive No. 5400.07 states that the Department applies the presumption of openness in releasing information; the 2015 annual report of the Chief FOIA Officer reported reduction in request backlogs and closing of 93% of all requests within 100 days of receipt. No recent evidence of criticism regarding budget information has been located.
1) DOD Open Government Initiative, http://open.defence.gov/Transparency/FinancialData.aspx
2) TI Defence and Security Programme, "The Transparency of National Defence Budgets: An Initial Review," September 2011, http://transparency.ge/sites/default/files/post_attachments/Report%20on%20Defence%20Budget%20Transparency.pdf
3) POGO, "An Inadequate defence Budget? Compared to Whom? Compared to When?" .http://www.pogo.org/blog/2014/04/an-inadequate-defence-budget.html
4) US News and World Report. "DOD Wastes Billions While Searching for Cuts," http://www.pogo.org/blog/2014/04/an-inadequate-defence-budget.html
5) GAO, "DOD Contract Management," http://www.gao.gov/highrisk/dod_contract_management/why_did_study
6) Pro Publica, 'Obama Administration Helped Kill Transparency Push on Military Aid,' September 2013, http://www.propublica.org/article/obama-administration-pushed-to-keep-military-aid-out-of-transparency-effort
7) Publish What You Fund, 2013 Aid Transparency Initiative, U.S. – Department of defence, http://ati.publishwhatyoufund.org/donor/usdod/ (accessed September 2015)
8) Government Accountability Office, &quoute;SPECIAL OPERATIONS FORCES: Opportunities Exist to Improve
Transparency of Funding and Assess Potential to Lessen Some Deployments&quoute;, July 2015 http://www.gao.gov/assets/680/671462.pdf
9) Air Force Times, &quoute;GAO: DOD must improve transparency of Spec Ops funding,&quoute; July 28, 2015 http://www.airforcetimes.com/story/military/pentagon/2015/07/28/gao-dod-must-improve-transparency-spec-ops-funding/30776341/
10) United States Department of defence Fiscal Year 2015 Budget Request overview, http://comptroller.defence.gov/Portals/45/Documents/defbudget/fy2015/fy2015_Budget_Request_Overview_Book.pdf (accessed September 2015)
11) Fiscal Year (FY) 2015 Overseas Contingency Operations (OCO) Budget Amendment Update, November 2014: http://comptroller.defence.gov/Portals/45/Documents/defbudget/fy2015/amendment/FY15_OCO_Budget_Amendment_Update.pdf
12) Marcus Weisgerber, &quoute;Peeling the Onion Back on the Pentagon’s Special Operations Budget&quoute;
January 27, 2025, http://www.defenceone.com/management/2015/01/peeling-onion-back-pentagons-special-operations-budget/103905/
13) Freedom of Information Act 1966, with amendments. http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/amended-foia-redlined-2010.pdf, accessed October 2015.
14) Department of defence Directive 5400.07, January 2008 (last updated January 2015). http://www.dtic.mil/whs/directives/corres/pdf/540007p.pdf, accessed October 2015.
15) Department of defence Chief Freedom of Information Act Officer Report for 2015.http://open.defence.gov/Portals/23/Documents/2015_ACFO_Report_FINAL_REPORT.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are sources of defence income other than from central government allocation (from equipment sales or property disposal, for example) published and scrutinised?
The DoD Financial Management Regulation, chapter 18, defines 'revenues' as encompassing 'gross income resulting from the sale of goods and services, interest and penalties, and trust fund receipts', plus customer fees for activities conceived as income-generating. The Regulation establishes the procedures of managing the relevant income, including particular Treasury accounts the income is to be paid into. Volume 15 of the Regulations establishes the framework for revenue from Foreign Military Sales.
Publication of the income and its destination is piecemeal and complex, but appears comprehensive. Legal regulations determine whether the DOD is allowed to use generated income to offset expenditures, or whether it has to be relayed to the Treasury for use. The DOD's Financial Report 2014 (9) details revenue obtained in each category and whether it has been used to offset expenses. The defence Logistics Agency Disposition Services, which is charged with disposing of excess military property other than real property, provides extensive information about property disposal on its website. According to the DLA website, in fiscal year 2013 DLA provided $39 billion in sales and revenue.
DOD-owned real property is disposed of by the General Services Administration. A report by the GAO states that DOD’s management of its excess real property is a high risk area because of DOD’s lack of information about all its real estate. DOD’s disposal of real property is subject to heavy Congressional scrutiny; for example, DOD requires Congressional authority to close military bases. Overall scrutiny is provided by the Government Accountability Office and by Congress as part of the budgetary process.
1) GAO, "Excess Facilities: DOD Needs More Complete Information and a Strategy to Guide Its Future Disposal Efforts," GAO-11-814, Sept. 19, 2011, http://www.gao.gov/products/GAO-11-814
2) GAO," Federal Property Disposal: Information on DOD’s Personal Property Disposal Proces," http://www.gao.gov/products/NSIAD-97-155BR
3) GAO, "Federal Real Property: National Strategy and Better Data Needed to Improve Management of Excess and Underutilized Property," GAO-12-645, June 2012, http://www.gao.gov/assets/600/591751.pdf
4) DLA Disposition Services. http://www.dispositionservices.DLA .mil/
5) Military Times, "Lawmakers divided on possible 2017 BRAC round," Mar. 3, 2014, http://www.militarytimes.com/article/20140303/NEWS05/303030021/Lawmakers-divided-possible-2017-BRAC-round
6) Congressional Research Service, Valerie Bailey Grasso, "defence Surplus Equipment Disposal: Background Information, CRS- 7-5700, April 29, 2014, http://fas.org/sgp/crs/weapons/RS20549.pdf
7) Listing of surplus government property for sale, including military property, http://www.usa.gov/shopping/supplies/supplies.shtml
8) DoD 7000.14-R Financial Management Regulation Volume 11A, Chapter 5, Disposition of Proceeds from Department of defence Sales of Surplus Personal Property," April 29, 2014, http://comptroller.defence.gov/Portals/45/documents/fmr/current/11a/11a_05.pdf
9) United States Department of defence, 'Agency Financial Report, Fiscal Year 2014. Financial Section.' http://comptroller.defence.gov/Portals/45/Documents/afr/fy2014/3-Financial_Section.pdf, accessed October 2015.
10) defence Finance and Accounting Service, 'DFAS 7900.4‐M: Financial Management Systems Requirements Manual; Volume 15, Foreign Military Sales (Security Assistance).' August 2014. https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CCEQFjAAahUKEwi70Kfxjb3IAhXFFh4KHXAZADg&url=http%3A%2F%2Fwww.dfas.mil%2Fdfasffmia%2Fbluebook.html&usg=AFQjCNF4-7OEs0NeXoG1FcFE9H5r18dXuQ, accessed October 2015.
11) United States Department of defence, 'DoD 7000.14-R Financial Management Regulation, Volume 15'. http://comptroller.defence.gov/Portals/45/documents/fmr/Volume_15.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there an effective internal audit process for defence ministry expenditure (that is, for example, transparent, conducted by appropriately skilled individuals, and subject to parliamentary oversight)?
The internal audit function within DOD is performed by audit departments within DOD components such as the Army and the Navy. The Defence Contract Audit Agency (DCAA), a functional audit unit, provides audits of contracts for the entire Department of defence and its components. The DOD audit instruction also permits the components to contract audit services with external sources, should their own resources be insufficient. The DOD Audit Manual mandates that audits should be performed according to widely accepted standards and by well-trained staff; it encourages the Department to hire staff with professional qualifications and provide a professional development plan. (17-19)
The overall control and coordination of audits is the task of the DOD Inspector General (IG).The IG is responsible for financial and policy audits, investigating effectiveness of particular measures and overseeing DOD spending. The IG reports both to the DOD head and Congress: it submits semiannual reports to Congress, detailing its work, and provides testimony to Congressional committees. Thus, there is a degree of legislative scrutiny over internal audit. (2-5, 15-16, 20)
However, there has been much criticism of the completeness and accuracy of DOD audit efforts. DOD is the only government agency never to have completed a full audit of all its financial records, which Congress sought to rectify through the National defence Authorization Act of 2013: the Act mandated DOD to be audit-ready by September 2014. That deadline was not met. Subsequently, Congress has requested that DOD should be audit ready in 2017 and undergoes a full independent audit in 2018. According to new management director, the DOD is likely to miss the 2017 deadline as well although it has made reforms to its financial system as priority in 2015 and many changes have been implemented.
For a number of years, the federal Government Audit Office (external auditor) has described DOD’s financial management and audit-readiness as "high risk," noting that:
"Significant financial and related business management systems and control weaknesses have adversely affected DOD’s ability to control costs; ensure basic accountability; anticipate future costs and claims on the budget; measure performance; maintain funds control; prevent and detect fraud, waste, and abuse; address pressing management issues; and prepare auditable financial statements."
While DOD auditors have not been able to conduct a comprehensive audit, the IG has been conducting partial audits of specific programmes. It is unclear to what extent its recommendations are taken into consideration by the Department, although some efforts can be noticed. Based on the reports of GAO and DOD IG, 78% recommendations from GAO were implemented in 2014 and DOD achieved $280 million in financial savings based on management-completed corrective actions to reports issued by DOD IG. DOD also created the Financial Improvement and Audit Readiness unit within the office of the DOD Comptroller in an attempt to create audit readiness, but with little success.
In 2013, the DOD's IG revoked the Marines' audit passing grade, after members of the auditing team ignored problems in the Marines' books, thus raising questions about the DOD IG audit teams' independence and accuracy.
Score 2 has been selected based on lack of overarching audit arrangements and the low likelihood of them being achieved within the next 2-3 years.
1) GAO, Performance and Accountability Report Fiscal Year 2014
http://www.gao.gov/about/performanceaccountabilityreport/overview
2) DOD IG, Semiannual Report to the Congress | April 1, 2014 to September 30, 2014
http://www.dodig.mil/pubs/sar_summary.cfm?id=6110
3) DOD, Financial Report for Fiscal Year 2014
http://comptroller.defence.gov/FinancialManagement/Reports/afr2014.aspx
4) DOD IG, FY2014 Audit Plan, Oct. 2013, http://www.dodig.mil/audit/audit_plan.pdf
5) DOD IG, "DOD Efforts to Meet the Requirements of the Improper Payments Elimination and Recovery Act in FY 2012" Report No. DOD IG-2013-054 March 13, 2013, http://www.dodig.mil/pubs/documents/DODIG-2013-054.pdf
6) defence News, "DOD Backs Off 2014 Timetable for Full Budget Audit," by Sean Reilly, Sept. 3, 2013, http://www.defencenews.com/article/20130903/DEFREG02/309030013/DOD-Backs-Off-2014-Timetable-Full-Budget-Audit
7) Federal News Radio, "DOD Comptroller Robert Hale to leave position," by Shefali Kapadia, Jan. 31, 2013, http://www.federalnewsradio.com/394/3553658/DOD-Comptroller-Robert-Hale-to-leave-position.
8) "Senators Call For Pentagon Audit To Prevent Waste," Benjamin Briscoe. WFMY, May 15, 2014, http://www.wfmynews2.com/story/news/local/2-wants-to-know/2014/05/15/pentagon-audit/9137815/
9) GAO, "High-Risk Series: An Update," GAO-13-283, Feb 14, 2013, http://www.gao.gov/products/GAO-13-283
10) Center for Effective Government. "Are defence Department Civilians Behind DOD’s Spending Problem? Not So Much," http://dev.ombwatch.org/blog/are-defence-department-civilians-behind-dod-spending-problem
11) POGO, "New Afghan War Plan Announced, but How Much Will It Cost?" http://www.pogo.org/blog/2014/05/new-afghan-war-plan-but-how-much-will-it-cost.html
12) POGO,"VA IG confirms Phoenix Hospital Lied About Wait Times" http://www.pogo.org/blog/2014/05/va-ig-confirms-phoenix-hospital-lied-about-wait-times.html
13) The Fiscal Times, David Francie, 'Why DOD Can't Balance its Books', Feb. 11, 2013, http://www.usnews.com/news/articles/2013/07/15/pentagon-wastes-billions-on-contractors-and-lack-of-oversight-while-searching-for-cuts
14) 'DOD to Miss Audit Deadline', Federal News Radio, April 22, 2015, http://federalnewsradio.com/congress/2015/04/dod-to-miss-2017-audit-deadline-says-deputy-chief-management-officer-nominee/
15) DOD IG, 'Testimony'. http://www.dodig.mil/pubs/testimony.cfm, accessed October 2015.
16) DOD IG, 'Semiannual Report to the Congress. 1 October 2014-31 March 2015.' http://www.dodig.mil/pubs/sar.cfm, accessed October 2015.
17) defence Contract Audit Agency, homepage. http://www.dcaa.mil/about_dcaa.html, accessed october 2015.
18) Department of defence Instruction 7600.02, 'Audit Policies', 16 October 2014. http://www.dtic.mil/whs/directives/corres/pdf/760002p.pdf, accessed October 2015.
19) Department of defence Manual No. 7600.07, 'Audit'. 3 August 2015. http://www.dtic.mil/whs/directives/corres/pdf/760007m.pdf, accessed October 2015.
20) Inspector General Act of 1978. https://legcounsel.house.gov/Comps/Inspector%20General%20Act%20Of%201978.pdf, accessed October 2015.
21) U.S. defence Department auditor signed off on flawed Marine Corps books, Reuters, May 20, 2015, http://www.reuters.com/investigates/special-report/usa-marines-audit/?utm_source=Sailthru&utm_medium=email&utm_term=*Situation%20Report&utm_campaign=SitRep0612/
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there effective and transparent external auditing of military defence expenditure?
External audits of the Department of defence are performed by the Government Accountability Office, which reports to Congress and is frequently mandated by Congressional committees to perform audits of particular programmes or initiatives at the DOD. There is evidence that the GAO is well-resourced, well-staffed and active: between March and September 2015, it conducted over 80 audits of DOD programmes. (8) It also appears that its recommendations are taken into consideration: the defence Department is obliged to respond to GAO recommendations and the Office has noted that the DOD has implemented many of its recommendations. (9, 10 - examples)
The major stumbling block to greater audit effectiveness is lack of comprehensive audit readiness on the side of the DOD. The defence Department is the only federal agency that has not complied with the 1992 law that requires annual audits of all government departments. Congress, through the National defence Appropriations Act of 2013, mandated that the DOD be audit ready undergo an independent department-wide independent financial audit by 2017. However, although DOD has made some progress in improving its financial record-keeping systems, it will likely not be ready by 2017.
The Pentagon's financial management programs have been on GAO's &quoute;high risk&quoute; list – deemed susceptible to waste, fraud, abuse and mismanagement – since 1995. The latest GAO report continues the designation. According to the report, &quoute;DOD remains the only major federal agency that has been unable to receive an audit opinion of any kind on its department-wide financial statements.&quoute; The latest report states: &quoute;Given the size and complexity of DOD's worldwide operations—involving a requested budget of approximately $614 billion for fiscal year 2013—accurate, complete, and timely financial management information and effective accountability are critical.&quoute;
The report acknowledges that Pentagon leaders have taken some action to manage department-level risks associated with financial auditability, primarily through its Financial Improvement and Audit Readiness (FIAR) plan. But GAO noted problems with FIAR, saying that its risk management efforts were not carried out &quoute;in accordance with widely recognized guiding principles for effective risk management,&quoute; such as fully assessing and planning for risks that could make goals unachievable.
The effectiveness and transparency of the GAO is of high standard; score 3 has been selected to reflect lack of comprehensive auditable basis at the DOD.
1) GAO, Report to Congress, "High-Risk Series: An Update," GAO-13-283, Feb. 2013, http://www.gao.gov/assets/660/652133.pdf
2) Under Secretary of defence, Comptroller, FY2013 DOD Agency-Wide and Component Financial Statements, http://comptroller.defence.gov/FinancialManagement/reports/cfs2013.aspx,
3) GAO, "DOD Financial Management: Ineffective Risk Management Could Impair Progress toward Audit-Ready Financial Statements," GAO-13-123, August 2013, http://www.gao.gov/assets/660/656520.pdf
4) FCW, "More Bad News for DOD Audit-Readiness," Amber Corrin, Sept. 3, 2013, http://fcw.com/articles/2013/09/03/dod-gao-clean-audit.aspx
5) Jared Serbu, "DoD plans dry-run financial audit for 2015," February 12, 2014, http://www.federalnewsradio.com/394/3561310/DoD-plans-dry-run-financial-audit-for-2015
6) U.S. defence Department auditor signed off on flawed Marine Corps books, Reuters, May 20, 2015, http://www.reuters.com/investigates/special-report/usa-marines-audit/?utm_source=Sailthru&utm_medium=email&utm_term=*Situation%20Report&utm_campaign=SitRep0612/
7) DOD to Miss 2017 Audit Deadline, Federal News Radio, April 22, 2015 http://federalnewsradio.com/congress/2015/04/dod-to-miss-2017-audit-deadline-says-deputy-chief-management-officer-nominee/
8) U.S. Government Accountability Office (GAO), Homepage. http://www.gao.gov/about/index.html, accessed October 2015.
9) GAO, 'Improvements Made to Planning and Implementation of Fiscal Controls. GAO-15-780', 30 September 2015. http://www.gao.gov/products/GAO-15-780, accessed October 2015.
10) GAO, 'Additional Steps Are Needed to Strengthen DOD's Oversight of Ethics and Professionalism Issues. GAO-15-711', 3 September 2015. http://www.gao.gov/products/GAO-15-711, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there evidence that the country's defence institutions have controlling or financial interests in businesses associated with the country's natural resource exploitation and, if so, are these interests publicly stated and subject to scrutiny?
There appears to be no statute banning the armed forces' involvement in natural resource exploitation. While no information could be found the DOD or armed forces' involvement in more 'traditional' avenues of natural resource exploitation, the DOD does have investments in the development of alternative energy (motivated by a wish to diversify its energy base), the financing of which was authorised in the 2013 National Defence Authorization Act.
According to a 2013 article in the LA Times, &quoute;The Pentagon has allocated millions to help incubate a Bay Area firm that extracts oil from algae and another trying to make fuel from switchgrass. A Northern California firm working to turn massive amounts of garbage into liquid fuel and Emerald Biofuels, an Illinois company hoping to do the same with the kinds of grease used in cooking and food processing, are each positioned to win as much as $70 million in grants.&quoute; The military has also invested in the development of solar and biofuel energy, as well as conservation, in Hawaii.
DOD Directive No. 4180.01 establishes the chain of responsibility and oversight for these investments at the DOD, with the Under-Secretary of defence for Acquisitions, Technology, and Logistics responsible for the general policies and oversight. The Government Accountability Office audits the energy projects and their financing as well (see source 8).
In sum, the DOD's investments seem to be legally authorised, relatively transparent and open to debate and scrutiny, and are related to natural resources. Score of 3 appears the most appropriate.
1) Funding your Startup with SBIR Grants, (2010) http://billpayne.com/2010/11/20/funding-your-startup-with-sbir-grants.html
2) Tina Casey, &quoute;US Navy Triples Funding for Clean Energy in Hawaii,&quoute; (Sept. 9, 2013), http://cleantechnica.com/2013/09/09/us-navy-triples-funding-for-clean-energy-in-hawaii/
3) LA Times, &quoute;Secretary of defence unveils $75-million investment in Silicon Valley venture,&quoute; August 2015 http://www.latimes.com/business/la-fi-pentagon-cyber-20150829-story.html
4) Forbes, &quoute;Meet Silicon Valley's newest venture capitalist: The Pentagon&quoute; April 2015, http://fortune.com/2015/04/23/pentagon-silicon-vally-investing/
5) Scott Cooney, Hawaii Business, &quoute;MILITARY DRIVES ALTERNATIVE ENERGY IN HAWAII,&quoute; January, 2013, http://www.hawaiibusiness.com/military-drives-alternative-energy-in-hawaii/
6) LA Times, &quoute;As Pentagon invests in green fuel, critics focus on the cost&quoute;, November 2013, http://www.latimes.com/nation/la-na-green-military-20131118-story.html
7) Department of defence Directive no. 4180.01, 16 April 2014. http://www.dtic.mil/whs/directives/corres/pdf/418001_2014.pdf, accessed October 2015.
8) GAO, 'Renewable Energy Project Financing: Improved Guidance and Information Sharing Needed for DOD Project-Level Officials', GAO-12-401, 4 April 2012. http://www.gao.gov/products/GAO-12-401, accessed October 2015.
9) Katherine Blakeley, Congressional Research Service, 'DOD Alternative Fuels: Policy, Initiatives and
Legislative Activity '. 14 December 2012, https://www.fas.org/sgp/crs/natsec/R42859.pdf, accessed October 2012.
10) United States Congress, ‘‘National defence Authorization Act for Fiscal Year 2013’’. http://www.gpo.gov/fdsys/pkg/BILLS-112hr4310enr/pdf/BILLS-112hr4310enr.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there evidence, for example through media investigations or prosecution reports, of a penetration of organised crime into the defence and security sector? If no, is there evidence that the government is alert and prepared for this risk?
There are some reports of organised crime infiltration along the border with Mexico, regarding primarily US law enforcement and border control. There have been isolated incidences of penetration- or attempted penetration- into the National Guard, as shown in the case of the two National Guardsmen who attempted to sell arms to a Mexican Cartel (NBC).
A Government Accountability Office letter to Congress stated that the Customs and Border Protection had provided training, but &quoute;concluded that CBP had implemented integrity-related programs, but faced challenges in managing and overseeing these programs. In addition, we found that CBP had not completed an integrity strategy, as called for in its Fiscal Year 2009-2014 Strategic Plan.&quoute;
The Center for Investigative Reporting highlighted problems of corruption and related offenses in their study &quoute;Crossing the Line: Corruption at the Border.&quoute; Insight Crime reports that &quoute;A Department of Homeland Security (DHS) report published this year revealed that approximately 2,000 police and other law enforcement officials are under investigation for their involvement in organized crime. The DHS is currently investigating public officials who have received bribes to protect criminals, facilitate drug trafficking, escort drug shipments, and traffic the Mexican cartels' drugs...The latest report from the Government Accountability Office (GAO) indicates that 144 border patrol agents were arrested between 2005 to 2012 for corruption. Many of the cases were drug-related.&quoute;
There appears to be little to no mention of how to specifically counter the infiltration of organized crime in the defence sector within policy, doctrine, or legal frameworks. In looking at the armed services' individual offices of special investigations and military police there does not appear to be any publicly available policies or preparedness training on addressing organized crime. That being said, DoD does not seem to be encountering any challenges in responding to such crimes when they are suspected or occur. However, the National Security Council does have a strategy for addressing organized crime more generally across the country.
Since these reports are limited primarily to Customs and Border Protection and the police; it seems to be mostly individual cases rather than a systemic problem; and government is responding to these problems, but does not appear to have proactive mandates that could apply to the armed forces in place, score 3 appears the most appropriate.
Response to peer reviewer 2: Comments incorporated.
1) U.S. Air Force Office of Special Investigations. 13 February 2012. &quoute;OSI works with U.S. Postal Inspection Service to catch cyber criminal.&quoute; Retrieved from http://www.osi.af.mil/news/story.asp?id=123289904
2) U.S. National Security Council. 25 July 2011. &quoute;Strategy to Combat Transnational Organized Crime.&quoute; Retrieved from http://www.whitehouse.gov/administration/eop/nsc/transnational-crime
3 Insight Crime, &quoute;US Police Corrupted by Mexican Cartels Along Border&quoute;, October 2014, http://www.insightcrime.org/news-analysis/us-police-corrupted-by-mexican-cartels-along-border
4) Center for Investigative Reporting, &quoute;Crossing the line: Corruption at the border&quoute;,
http://bordercorruption.apps.cironline.org/ (regularly updated, accessed September 2015).
5) Government Accountability Office, letter, &quoute;Border Security: U.S. Customs and Border Protection Provides Integrity-Related Training to Its Officers and Agents throughout Their Careers&quoute; August 2013, http://www.gao.gov/assets/660/657296.pdf
6) NBC News San Diego, &quoute;Two National Guard Members Arrested for Allegedly Selling Dozens of Weapons to Undercover Agents&quoute;, APril 2015 http://www.nbcsandiego.com/news/local/Two-National-Guard-Members-Arrested-for-Allegedly-Selling-Dozens-of-Weapons-to-Undercover-Agents-300016031.html
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: There appears to be little to no mention of how to specifically counter the infiltration of organized crime in the defence sector within policy, doctrine, or legal frameworks. In looking at the armed services' individual offices of special investigations and military police there does not appear to be any publicly available policies or preparedness training on addressing organized crime. That being said, DoD does not seem to be encountering any challenges in responding to such crimes when they are suspected or occur. However, the National Security Council does have a strategy for addressing organized crime more generally across the country.
Source:
1) U.S. Air Force Office of Special Investigations. 13 February 2012. &quoute;OSI works with U.S. Postal Inspection Service to catch cyber criminal.&quoute; Retrieved from http://www.osi.af.mil/news/story.asp?id=123289904
2) U.S. National Security Council. 25 July 2011. &quoute;Strategy to Combat Transnational Organized Crime.&quoute; Retrieved from http://www.whitehouse.gov/administration/eop/nsc/transnational-crime
Suggested score:
Is there policing to investigate corruption and organised crime within the defence services and is there evidence of the effectiveness of this policing?
Each armed forces service, including the Coast Guard, has a separate investigative service (5-8). There is also a central DOD criminal investigative service within DOD IG’s office. The DOD defence Criminal Investigative Service (DCIS) investigates:
•Procurement Fraud and Public Corruption
•Product Substitution
•Health Care Fraud
•Illegal Technology Transfer
•Computer Crimes
The mandates of all the separate service investigative forces include corruption and fraud in procurement among their top-priority missions. However, none of them are specifically mandated to look into organised crime, perhaps with the exception of the Army's criminal investigations unit which is mandated to look into property-related offences of small value if they appear to be the work of an organised group.
The criminal investigation organisations appear to be independent - DOD Instruction No. 5505.03 lays out the process of ensuring that their investigations cannot be curtailed by the command chain. A list of recent investigations concluded by the DCIS (10) suggests that its enforcement actions are effective.
The Federal Bureau of Investigation has an explicit mandate to investigate organised crime, including its transnational dimension; the FBI has adopted strategies to combat organised crime and established programmes tackling links to different regions of the world.
1) defence Criminal Investigative Service. http://www.dodig.mil/INV_DCIS/index.cfm.
2) Office of the United States Attorney, Southern District of California Press Release, March 18, 2014, "Singapore Executive Is Second To Plead Guilty In International Navy Corruption Scandal; Admits Bilking U.S. Navy Of More Than $20 Million" http://www.dodig.mil/IGInformation/IGInformationReleases/PRWisidagamaPlea.pdf.
3) DOJ Eastern District press release, "Former Chesapeake, Virginia Subcontractor Pleads Guilty to Bribery," March 5, 2014, http://www.dodig.mil/IGInformation/IGInformationReleases/RSmithPR.pdf
4) Defence Criminal Investigative Service, &quoute;Monthly update&quoute;, http://www.dodig.mil/ELetter/eletter.cfm (accessed April 2015)
5) Army Regulation 195-2, 'Criminal Investigation Activities'. 9 June 2014. http://www.apd.army.mil/pdffiles/r195_2.pdf, accessed October 2015.
6) Air Force Office of Special Military Investigations, homepage. http://www.osi.af.mil/, accessed October 2015.
7) Naval Criminal Investigative Service, Core Mission Areas. http://www.ncis.navy.mil/CoreMissions/FI/Pages/ProcurementFraud.aspx, accessed October 2015.
8) Coast Guard Investigative Service, 'Missions'. http://www.uscg.mil/top/missions/, accessed October 2015.
9) Department of defence Instruction No. 5505.03, 24 March 2011. http://www.dtic.mil/whs/directives/corres/pdf/550503p.pdf, accessed October 2015.
10) DOD IG Information Releases, http://www.dodig.mil/pubs/info.cfm, accessed October 2015.
11) Federal Bureau of Investigation, 'Organized Crime'. https://www.fbi.gov/about-us/investigate/organizedcrime, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are the policies, administration, and budgets of the intelligence services subject to effective, properly resourced, and independent oversight?
There are 17 intelligence agencies in the United States, 10 of which are under DOD control (including the defence Intelligence Agency, the National Security Agency, and service intelligence establishments). Intelligence agencies are subject to effective oversight by Congress in theory, though in practice there are some shortcomings. Congressional oversight is carried out by the House and Senate Select Committees on Intelligence, which scrutinise the policies and activities of the services. The Committee members and staff have access to classified information; the intelligence services are legally obliged to inform the Committees of their activities. In some cases, access to confidential information can be limited to the Chairman and Vice Chairman of the Committee, the Chairman and Ranking Member of the House Intelligence Committee, and the House and Senate leadership. However, even in these cases, other Committee members are given abridged information on the issue. The Committees meet in either closed or open sessions, and publish reports.
House and Senate Appropriations Committees scrutinise the services' budgets as part of the annual NDAA process; the results are presented in a classified annex to the NDAA. Some members of the Appropriations Committees, as well as Armed Forces Committees, serve on the Intelligence Committees with the goal of ensuring coordination. Some intelligence issues are also the prerogative of the House and Senate Armed Services Committees.
The Intelligence Committees' mandates also include scrutinising the Central Intelligence Agency.
The Government Accountability Office also conducts audits of the intelligence services; the reports are publicly available. The Intelligence Authorization Act of 2010 established an additional layer of oversight: it added statutory IGs (who report to Congressional intelligence committees) in four defence Department intelligence agencies and established "within the Office of the Director of National Intelligence an Office of the IG of the Intelligence Community" with comprehensive jurisdiction over the intelligence community. The IG is appointed by the President, with Senate confirmation (PAS), and can be removed only by the President, not the Director of National Intelligence.
The most significant constraint is the high degree and pervasiveness of secrecy surrounding intelligence policy, information, activities, operations, resources, and personnel. For Congress, this means that the legislature, its committees, and its Members are circumscribed in a number of ways: what they know; who receives the information, how, and in what form and forum; who provides it; what information can be shared with other Members and panels, how, and in what detail; and what non-governmental sources can contribute to legislators’ knowledge, to what degree, and in what ways. The 2015 de-classification of the Senate Intelligence Committee's report on the use of torture by the CIA, preceded by a long period of the Agency's attempts to prevent the report from being released, was seen as a rare example of public and effective oversight. (18, 19)
Overall, there are strong provisions for intelligence oversight, but many still view it as "dysfunctional" (1) and "counterproductive" and there have been a number of calls for reform, particularly following the Edward Snowden revelations (16). The major shortcomings include timely access to information in practice; overlapping committee jurisdictions; lack of public verification of scrutiny; diminishing expertise of the Committees; and staffing shortages.
1) Congressional Research Service, RL32525, "Congressional Oversight of Intelligence: Current Structure and Alternatives," L. Elaine Halchin and Frederick M. Kaiser, May 14, 2012, https://opencrs.com/document/RL32525/2012-03-14/
2) &quoute;Homeland Security Experts Call for Reform of Congressional Oversight of DHS&quoute; By Carie Lemack, May 21, 2014, http://bipartisanpolicy.org/blog/homelandsecurity/2014/05/21/experts-reform-congressional-oversight-dhs
3) Bipartisan Policy Center, "Tenth Anniversary Report Card: The Status of the 9/11 Commission Recommendations" Sept. 2011, http://bipartisanpolicy.org/sites/default/files/CommissionRecommendations.pdf
4) Mike McConnell, "Overhauling Intelligence," Foreign Affairs, July/August 2007, http://www.cfr.org/intelligence/overhauling-intelligence/p13634
5) Intelligence Authorization Act of 2010 (P.L. 111-259), http://www.gpo.gov/fdsys/pkg/PLAW-111publ259/pdf/PLAW-111publ259.pdf
6) Senate Select Committee on Intelligence, http://www.intelligence.senate.gov/
7) House of Representatives Permanent Select Committee on Intelligence, http://intelligence.house.gov/
8) DOD Appropriations Bill, 2014 Report of the House Committee on Appropriations, June 7, 2013, p. 92, http://appropriations.house.gov/uploadedfiles/hrpt-113-hr-fy2014-defence.pdf
9) House Appropriations Committee. http://appropriations.house.gov/
10) House Appropriations Subcommittee on defence Past Meetings, http://appropriations.house.gov/subcommittees/subcommittee/?IssueID=34795
11) Federation of American Scientists, Government Accountability Office Selected Intelligence-related Reports. Available at http://fas.org/irp/gao/, accessed October 2015.
16) Zoe Carpenter, ' Can Congress Oversee the NSA?', The Nation, 30 January 2014. http://www.thenation.com/article/can-congress-oversee-nsa/, accessed October 2015.
17) Federation of American Scientists, 'An Overview of the Intelligence Community'. http://fas.org/irp/offdocs/int023.html, accessed October 2015.
18) Conor Friedersdorf, 'Why Does Congress Lack the Backbone to Oversee the CIA?', The Atlantic, 10 March 2014. http://www.theatlantic.com/politics/archive/2014/03/why-does-congress-lack-the-backbone-to-oversee-the-cia/284313/, accessed October 2015.
19) Ken Dilanian, Associated Press, 'Senate Intelligence Committee's torture report stands as an exception in CIA oversight', 9 March 2015. http://www.commercialappeal.com/news/national/senate-intelligence-committees-torture-report-stands-as-an-exception-in-cia-oversight-ep-979297646-324448231.html, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are senior positions within the intelligence services filled on the basis of objective selection criteria, and are appointees subject to investigation of their suitability and prior conduct?
The top positions in the intelligence services, like all other federal government agencies, are political appointments by the President subject to the advice and consent of the Senate, after initial approval from the Senate Select Intelligence Committee. There is full investigation of suitability, including hearings. Positions subject to the advice and consent of the Senate are: Department of Justice, Assistant Attorney General - National Security Division, Department of State, Assistant Secretary for Intelligence and Research, Department of the Treasury, Assistant Secretary for Intelligence and Analysis, Central Intelligence Agency Director, CIA General Counsel, CIA IG, Director of National Intelligence, Principal, Deputy Director of DNI, Director of the National Counterterrorism Center, General Counsel, Chief Information Officer. There do not appear to be instances of holding up nominees for intelligence positions on purely political grounds as much as for other positions.
Other senior positions are filled in the same way as other Executive Branch agencies, through a competitive process. The hiring process for non-political intelligence appointees is not transparent. Score 3 selected because of the possibility of politicisation of the process and lack of transparency regarding some appointment processes.
1) Intelligence, http://www.intelligence.gov/careers-in-intelligence/index.html
2) DIA Jobs, https://diajobs.dia.mil/psp/recnprod/APPLICANT/HRMS/c/DI_HOME.DI_SIGNIN.USF
3) CRS, "Presidential Appointee Positions Requiring Senate Confirmation and Committees Handling Nominations," by Christopher M. Davis and Jerry W. Mansfield, Nov. 25, 2013, http://fas.org/sgp/crs/misc/RL30959.pdf
4) James P. Pfiffner, "Presidential Appointments and Managing the Executive Branch,"
http://politicalappointeeproject.org/commentary/appointments-and-managing-executive-branch
5) USA Jobs, https://www.usajobs.gov/
6) Obama's Pick for CIA Chief to Face Senate Scrutiny, NPR, Feb. 6, 2013, http://www.npr.org/2013/02/07/171324531/obamas-pick-for-cia-chief-to-face-senate-scrutiny
7) C-Span's Videos Of Nomination Hearings before the Senate Select Intelligence Committee: http://www.c-span.org/organization/?62990&congress=113
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Does the government have a well-scrutinised process for arms export decisions that aligns with international protocols, particularly the Arms Trade Treaty (ATT)?
While the United States has signed the Arms Trade Treaty, the Senate (which is required to ratify international treaties) is unlikely to ratify it. A two-thirds majority is required for a treaty to win the Senate’s support, and over half of the senators have expressed their opposition to the ATT.
While the United States has not ratified ATT, it does have oversight of arms export transactions and is actively engaged in international cooperation on arms control through international protocols like the Wassenaar Arrangement. The process has recently been reformed to consolidate the export review process. The Departments of State, Commerce, and the Treasury have combined their review into a common electronic format to facilitate the screening of parties to export transactions and ensure compliance with U.S. export control and sanctions regulations. Previously, exporters needed to review three screening lists maintained by three different Departments.
Pursuant to statute (22 U.S.C. 2593a), the U.S. Department of State prepares a report providing a detailed assessment of the adherence of the United States and other nations to obligations undertaken in all arms control, nonproliferation, and disarmament agreements or commitments to which the United States is a participating state. The Report is prepared with the concurrence of the U.S. intelligence community and in consultation with the U.S. Departments of defence and Energy, and the Joint Chiefs of Staff.
In addition, the FCPA makes it illegal for US companies and issuers to directly or indirectly engage in acts of foreign bribery, which includes bribery involving arms trade. The US is also a state party to the UNCAC and OECD conventions which prohibit engaging in corrupt activities involving arms transfers and require cooperation among state's investigative agencies. US law or agencies may have requirements that address corruption risks in arms transfers, although a cursory search did not find any.
The US Congress also has the authority to approve major arms sales: under the Arms Export Control Act, Congress needs to be notified 30 days before any major government-to-government deal is concluded (15 days in case of close allies). It can pass legislation changing or prohibiting the proposed sale. (13)
It is also worth noting here that, according to Bill Hartung at the Center for International Policy, the Obama administration has proposed reforms that would mean &quoute;moving items from the United States Munitions List (USML) – a compendium of arms and arms-related technologies monitored by the State Department – to the Commerce Control List (CCL), which subjects equipment destined for export to less rigorous scrutiny.&quoute; There are reports that business interests may have influenced the Obama administration's decision on these reforms.
1) Arms Trade Treaty signed Sept. 25, 2013, http://www.state.gov/t/isn/armstradetreaty/
2) VOA News, "Many US Senators Oppose Ratifying UN Arms Trade Treaty," Andre de Nesnera, Oct. 17, 2013, http://www.voanews.com/content/many-us-senators-oppose-ratifying-arms-trade-treaty/1771753.html
3) The Hill, "Senate votes 53-46 to stop US from joining UN Arms Trade Treaty," by Ramsey Cox, Mar. 23, 2013, http://thehill.com/blogs/floor-action/senate/290001-senate-votes-to-stop-us-from-joining-un-arms-treaty
4) The White House, Fact Sheet: Announcing the Revised U.S. Export Control System, Oct. 15, 2013, http://www.whitehouse.gov/the-press-office/2013/10/15/fact-sheet-announcing-revised-us-export-control-system
5) Export Control Reform, http://export.gov/%5C/ecr/index.asp
6) Mondaq, "United States: Export Control Reform Finally Kicks In," by Edward J. Krauland, Meredith A. Rathbone, Jack R. Hayes, Peter E. Jeydel, Elisabeth Page, Jeanne Cook and Andrew D. Irwin, October 25 2013, http://www.mondaq.com/unitedstates/x/271044/Export+controls+Trade+Investment+Sanctions/Export+Control+Reform+Finally+Kicks+In
7) Williams Mullen,"Initial Provisions of Export Control Reform Become Effective October 15th – Steps to Take to Prepare for Export Control Reform," Oct. 11, 2013 http://www.williamsmullen.com/news/initial-provisions-export-control-reform-become-effective-october-15th-%E2%80%93-steps-take-prepare-export
8) State Department, "Report to Congress 2013, Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments," http://www.state.gov/t/avc/rls/rpt/2013/index.htm
9) Wassenaar Arrangment on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, http://www.wassenaar.org/participants/index.html
10) List of arms control treaties to which U.S. is party, http://www.state.gov/t/avc/trty/
11) Bill Hartung, Center for International Policy, &quoute;Risk and Returns: The Economic Illogic of the Obama Administration's Arms Export Reforms,&quoute; August 2013, http://www.ciponline.org/research/html/risk-and-returns-the-economic-illogic-of-the-obama-administrations-arms-exp
12) Bill Hartung, Foreign Policy in Focus, &quoute;Obama's Arms Sales Policy: Promotion or Restraint?&quoute; http://fpif.org/obamas-arms-sales-policy-promotion-restraint/
13) defence Security Cooperation Agency, 'Arms Sales: Congressional Review Process'. http://www.dsca.mil/resources/arms-sales-congressional-review-process, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
How effective are controls over the disposal of assets, and is information on these disposals, and the proceeds of their sale, transparent?
Legal regulations determine whether the DOD is allowed to use generated income to offset expenditures, or whether it has to be relayed to the Treasury for use. The DoD Financial Management Regulation establishes the procedures of managing DOD income, including asset disposals; this includes particular Treasury accounts the income is to be paid into; the defence Materiel Disposition Manual and the Demilitarization Manual establish the procedures and chains of responsibility applicable to asset disposal.
The defence Logistics Agency (DLA ) Disposition Services is charged with disposing of excess military property, other than real estate. The website provides extensive information about property disposal. According to the DLA website, in fiscal year 2013 DLA provided $39 billion in sales and revenue.
DOD-owned real estate is disposed of by the General Services Administration and subject to heavy Congressional scrutiny; for example, DOD requires Congressional authority to close military bases (there have been five rounds of base closures since 1998). A report by the GAO states that DOD’s management of its excess real property is a high risk area because of DOD’s lack of information about all its real estate.
Publication of income from asset disposal is piecemeal and complex, and some details are lacking. The DOD's Financial Report 2014 (10) details DOD revenues, including obtained in each category and whether it has been used to offset expenses, but little detail on particular sales is provided.
1) DOD, Instruction No. 5000.64, May 19, 2011, Accountability and Management of DOD Equipment and Other Accountable Property, http://www.dtic.mil/whs/directives/corres/pdf/500064p.pdf
2) DOD Financial Management Volume 2B, Chapter 8, Real Property Maintenance/Minor Construction, http://comptroller.defence.gov/Portals/45/documents/fmr/archive/02barch/CHAPTER08.PDF
3) DOD, Manual No. 4160.28, Volume 1, "defence Demilitarization: Program Administration," June 7, 2011, http://www.dtic.mil/whs/directives/corres/pdf/416028m_vol1.pdf
4) DOD, Office of the Assistance Secretary of defence, Logistics and Material Readiness, "Material Disposition," http://www.acq.osd.mil/log/sci/mat_disposition.htm
5) DOD Directive 4140.1, Supply Chain Materiel Management Policy and DOD manuals DOD 4160.21-M defence Materiel Disposition Manual and DOD 4160.21-M-1 defence Demilitarization Manual. http://www.dtic.mil/whs/directives/corres/pdf/416021m.pdf, accessed October 2015.
6) DLA Disposition Services, http://www.dispositionservices.DLA .mil/
7) New York Times, "War Gear Flows to Police Departments," By Matt Apuzzojune, June 8, 2014, http://www.nytimes.com/2014/06/09/us/war-gear-flows-to-police-departments.html?hp&_r=4
8) Listing of surplus government property for sale, including military property, http://www.usa.gov/shopping/supplies/supplies.shtml
9) DoD 7000.14-R Financial Management Regulation Volume 11A, Chapter 5, Disposition of Proceeds from Department of defence Sales of Surplus Personal Property," April 29, 2014, http://comptroller.defence.gov/Portals/45/documents/fmr/current/11a/11a_05.pdf
10) United States Department of defence, 'Agency Financial Report, Fiscal Year 2014. Financial Section.' http://comptroller.defence.gov/Portals/45/Documents/afr/fy2014/3-Financial_Section.pdf, accessed October 2015.
11) defence Finance and Accounting Service, 'DFAS 7900.4‐M: Financial Management Systems Requirements Manual; Volume 15, Foreign Military Sales (Security Assistance).' August 2014. https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CCEQFjAAahUKEwi70Kfxjb3IAhXFFh4KHXAZADg&url=http%3A%2F%2Fwww.dfas.mil%2Fdfasffmia%2Fbluebook.html&usg=AFQjCNF4-7OEs0NeXoG1FcFE9H5r18dXuQ, accessed October 2015.
12) United States Department of defence, 'DoD 7000.14-R Financial Management Regulation, Volume 15'. http://comptroller.defence.gov/Portals/45/documents/fmr/Volume_15.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is independent and transparent scrutiny of asset disposals conducted by defence establishments, and are the reports of such scrutiny publicly available?
Authority for the disposal of surplus defence property can be found in P.L. 94-519, 10 U.S.C. 381, which amends the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 484), P.L. 107-117. DOD Financial Management Regulations govern property disposal and are audited by the Comptroller of DOD. Information is available on DOD DLA Disposition Services website, as well as on DOD Comptroller's website.
Scrutiny of particular aspects and/or programmes of asset disposal is also provided by the GAO and the DOD Inspector General. Reports of both bodies are publicly available and the results of the scrutiny are mostly transparent. However, the scrutiny does not appear to be comprehensive and it is unclear to what extent it is routine. Hence score of 3 has been selected.
1) Congressional Research Service, "defence Surplus Equipment Disposal: Background Information," by Valerie Bailey Grasso, Sept. 10. 2013, http://www.fas.org/sgp/crs/natsec/RS20549.pdf
2) Public Law 94-519 Amending the Federal Property and Administrative Services Act, 1976.http://www.gpo.gov/fdsys/pkg/STATUTE-90/pdf/STATUTE-90-Pg2451.pdf, accessed October 2015.
3) DOD Manual 4160.21, http://www.DLA .mil/DLA ps/dod/416021m/guide.asp. 4) defence Reutilization and Marketing Service (DRMS), http://publications.usa.gov/epublications/fedsales/dod.htm
5) GAO, "DOD’s Liability for Aircraft Disposal Can Be Estimated," AIMD-98-9, Nov 20, 1997.
http://www.gao.gov/products/AIMD-98-9
6) GAO, "DOD’s Liability for the Disposal of Conventional Ammunition," AIMD-98-32, Dec 19, 1997,
http://www.gpo.gov/fdsys/pkg/GAOREPORTS-AIMD-98-32/html/GAOREPORTS-AIMD-98-32.htm
7) Federal Accounting Standards Advisory Board, http://www.fasab.gov/pdffiles/dispgroupscope_050108_1.pdf.
8) DOD Inspector General, 'defence Logistics Agency Disposition Services Afghanistan Disposal Process
Needed Improvement', 8 November 2013. http://www.dodig.mil/pubs/documents/DODIG-2014-007.pdf, accessed October 2013.
9) GAO, 'defence Inventory: Actions Needed to Improve the defence Logistics Agency's Inventory Management', GAO-14-495, 19 June 2014. http://www.gao.gov/products/GAO-14-495, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
What percentage of defence and security expenditure in the budget year is dedicated to spending on secret items relating to national security and the intelligence services?
More than 8% of the defence and national security budget is classified.
In fiscal year 2015, the budget for defence and security-related international activities was $695 billion, of which $58.7 billion was appropriated for classified programs (8.44% of the defence budget). Budget for the National Intelligence Programmes (NIP) is $45.6 billion in 2015. The details of the budget remain classified except for overall mission goals for which the funding will be used. Putting them both together means that 16.4% of the defence and intelligence budget is classified (this includes domestic intelligence to combat domestic crime).
1) Washington Post, "The Black Budget," Aug. 29, 2013, http://www.washingtonpost.com/wp-srv/special/national/black-budget/
2) Washington Post, "Inside the 2013 U.S. intelligence 'black budget'," Aug. 29, 2013, http://apps.washingtonpost.com/g/page/national/inside-the-2013-us-intelligence-black-budget/420/
3) Center on Budget and Policy Priorities, "Policy Basics: Where Do Our Federal Tax Dollars Go?" Revised March 31, 2014, http://www.cbpp.org/cms/?fa=view&id=1258
4) Center for Strategic and Budgetary Assessments, "Analysis of the FY2012 defence Budget," by Todd Harrison, July 15, 2011, p. 61-63,
http://www.csbaonline.org/publications/2011/07/analysis-of-the-fy2012-defence-budget/
5) Press Release, Director of National Intelligence, "DNI Releases Budget Figure for FY 2015 Base Appropriations Request for the National Intelligence Program," ODNI News Release No. 15-14, March 6, 2014, http://www.dni.gov/index.php/newsroom/press-releases/198-press-releases-2014/1026-dni-releases-budget-figure-for-fy-2015-base-appropriations-request-for-the-national-intelligence-program?tmpl=component&format=pdf
6) Intelligence Budget Data, Intelligence Resource Program (http://fas.org/irp/budget/index.html) Accessed Sept. 2015
7) DOD Budget Request 2015: http://comptroller.defence.gov/budgetmaterials/budget2015.aspx Accessed Sept. 2015
8) Federation of American Scientists, 'Intelligence Resource Programme'. http://fas.org/irp/budget/?, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is the legislature (or the appropriate legislative committee or members of the legislature) given full information for the budget year on the spending of all secret items relating to national security and military intelligence?
The House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence both have oversight over national security budgets; some classified budget elements are also handled by the House and Senate Appropriations Committees, especially the defence Subcommittee.
The intelligence committees conduct classified hearings and issue classified reports (a minority of proceedings are public). For example, the Senate Intelligence Committee has held more than 70 hearings since January 2014, but only six have been open to the public. Other than for limited unclassified appropriations, primarily the Intelligence Community Management Account, the classified nature of U. S. intelligence activities precludes disclosure to the full Congress of the details of the budgetary recommendations. There is a classified annex, which is made available to the Committees on Appropriations of the Senate and the House of Representatives and to the President. It is also available for review by any Member of the Senate subject to the provisions of Senate Resolution 400 of the 94th Congress (1976).
However, there are some indications that the information provided to appropriate committees could lack detail. In 2012, for example, the House Committee on Appropriations stated that its oversight of the Special Operations Command budget could not be meaningful as "the request does not contain sufficient detail.&quoute; Due to the secrecy surrounding intelligence and national security budgetary processes, it has not been possible to establish the level of detail of intelligence budgets. Since the Intelligence Committee members have security clearances, it is likely that they receive detailed information.
In January 2014, Rep. Peter Welch (D-VT), Rep. Cynthia Lummis (R-WY), and Rep. David Price (D-NC) introduced legislation that would require disclosure of intelligence spending levels at each of the 16 federal agencies responsible for intelligence activities. H.R. 3855, The Intelligence Budget Transparency Act, would require the President to include the intelligence budget in his annual budget submission to Congress. They also released a bipartisan letter to President Obama urging him to begin disclosing these numbers when he submits his fiscal year 2015 budget to Congress. At the time of writing, the House has not yet passed the bill and a new version was introduced in May, 2015. The Bill is calling for disclosure by President of &quoute;total amount proposed for intelligence or intelligence related activities of each element of the government engaged in these activities in the fiscal year for which the budget is submitted.&quoute;
1) Press Release. Rep. Peter Welch, (January 14th, 2014, http://www.welch.house.gov/press-releases/welch-lummis-d-price-unveil-bipartisan-bill-requiring-transparency-in-intelligence-budget/
2) McClatchy Washington Bureau. "In the world of intelligence oversight, Sen. Feinstein gets bouquets and brickbats," By Michael Doyle March 7, 2014, http://www.mcclatchydc.com/2014/03/07/220548/in-the-world-of-intelligence-oversight.html
3) Senate Select Committee on Intelligence, Report to accompany S. 1681, Intelligence Authorization Act for Fiscal Year 2014 (Nov. 13, 2013), http://www.intelligence.senate.gov/131113pdfs/113120.pdf
4) House Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 2014, Report 113–277, November 25, 2013, http://intelligence.house.gov/sites/intelligence.house.gov/files/documents/CRPT-113hrpt277.pdf
5) H.R.2272 - Intelligence Budget Transparency Act of 2015 https://www.congress.gov/bill/114th-congress/house-bill/2272
6) House of Representatives Committee on Appropriations, 'Department of defence Appropriations Bill 2013. Report.' 25 May 2015. http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt493/pdf/CRPT-112hrpt493.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are audit reports of the annual accounts of the security sector (the military, police, and intelligence services) and other secret programs provided to the legislature (or relevant committee) and are they subsequently subject to parliamentary debate?
The Intelligence Community Inspector General (IC IG) was established pursuant to Section 405 of the Intelligence Authorization Act of Fiscal Year 2010. The IC IG is &quoute;responsible for conducting Intelligence Community-wide audits, investigations, inspections, and reviews that identify and address systemic risks, vulnerabilities, and deficiencies that cut across intelligence agency missions, in order to positively impact intelligence-wide economies and efficiencies.&quoute; (1)
The Congressional intelligence committees have access to any reports prepared by the IC IG. It is impossible to judge the quality of legislative debate as the hearings and reports are classified and there is no debate on the outside the Committees.
Audit reports conducted by the DOD IG are published on its website and freely available to the public.
1) Office of Intelligence Community IG, http://www.dni.gov/index.php/about/organization/office-of-the-intelligence-community-inspector-general-who-we-are
2) Intelligence Authorization Act of Fiscal Year 2014, S. Rep. No. 113-120, http://beta.congress.gov/congressional-report/113th-congress/senate-report/120/1
3) Office of IG DOD. "Audit Reports," http://www.dodig.mil/pubs/index.cfm?office=Audit
4) Office of Intelligence Community IG, "Auditing Guidance and Policies," http://www.dodig.mil/resources/Audit/auditresources.html.
5) Eric Rosenbach and Aki J. Peritz, "Confrontation or Collaboration: Congress and the Intelligence Community," 2009, http://belfercenter.ksg.harvard.edu/files/IC-book-finalasof12JUNE.pdf
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Off-budget military expenditures are those that are not formally authorised within a country's official defence budget, often considered to operate through the 'back-door'. In law, are off-budget military expenditures permitted, and if so, are they exceptional occurrences that are well-controlled?
The U.S. Constitution guarantees Congress the exclusive right to raise funds; government agencies cannot spend any funds without Congressional authorization. Therefore, there are no legally permitted off-budget expenditures. All U.S. military spending is publicly available and subject to Congressional approval, although the budget requests and appropriations are not all in one budgetary authorization act. Some military costs are contained in budgets of other agencies, for example the Veterans’ Administration and the Department of Treasury.
However, some parts of the budget are subject to less scrutiny than others. For example, funding for overseas military operations is contained in a separate budget, the Overseas Contingency Operations fund, which is not subject to the Budget Control Act (a law that sets caps on spending)--and has in recent years been used for spending that is not directly related to overseas military operations. According to Davidson and Brooking, &quoute;in the case of Congress, OCO is a great way to authorize funds without having to exercise the same level of oversight and responsibility.&quoute; While the OCO fund is authorised by Congress and thus not technically off-budget, the laxity of oversight and lack of clarity as to which expenditure should count as OCO-relevant result in the same risks that off-budget expenditures do: the ability to spend money with little oversight and the possibility of resources being allocated without going through the usual channels providing assessment of needs and weighing of priorities.
Congress has begun to address the issue through a requirement to establish a Lead Inspector General overseas operations lasting longer than 60 days, thus extending internal audit to operations funded from the OCO fund. The mandate of the Lead IG includes 'oversight of contracts, operations, governance, humanitarian and development assistance, and intelligence'; the Lead IG personnel deploy in the field to monitor operations. A current Lead IG for Operation Inherent Resolve (i.e. anti-ISIL actions) has submitted a report on operations up to 31 March 2015. However, while this development increases oversight over missions being executed, it does not address the budgetary process itself; it is also too early to assess the effectiveness of the arrangement. Therefore, it appears that score 2 is justified.
1) George Mason University, Mercator Center, "Personnel Costs May Overwhelm DOD Budget," http://mercatus.org/sites/default/files/derugy-dod-personnel-costs-analysis-pdf.pdf
2) Todd Harrison, "Chaos and Uncertainty: The FY 2014 defence Budget and Beyond," Center for Strategic and Budgetary Assessment, Oct. 2013 at 13,
http://www.csbaonline.org/publications/2013/10/chaos-and-uncertainty-the-fy-14-defence-budget-and-beyond/
3) Taxpayers for Common Sense, &quoute;Top 10 Reasons It’s Time to Re-Think OCO&quoute;, May 2014, http://www.taxpayer.net/library/article/top-10-reasons-its-time-to-re-think-oco
4) National Priorities Project, &quoute;Overseas Contingency Operations: The Pentagon Slush Fund&quoute; https://www.nationalpriorities.org/campaigns/overseas-contingency-operations/ Accessed September 2015
5) Janine Davison and Emerson Brooking, Council on Foreign Relations Blog, &quoute;How the Overseas Contingency Operations Fund Works—and Why Congress Wants to Make It Bigger&quoute; June 2016 http://blogs.cfr.org/davidson/2015/06/16/how-the-overseas-contingency-operations-fund-works-and-why-congress-wants-to-make-it-bigger/
6) United States Constitution, Section 8. Available at http://www.archives.gov/exhibits/charters/constitution_transcript.html
7) Stefanie Condon, 'Pentagon &quoute;slush fund&quoute; pays for ISIS airstrikes, irking some in Congress', CBS News, 3 October 2014. http://www.cbsnews.com/news/pentagon-slush-fund-pays-for-isis-airstrikes-irking-some-in-congress/, accessed October 2015.
8) Lead Inspector General for Overseas Contingency Operations, 'Operation Inherent Resolve: Quarterly Report and Biannual Report to the United States Congress, 17 December 2014-31 March 2015'. https://oig.state.gov/system/files/oir_042915.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
In practice, are there any off-budget military expenditures? If so, does evidence suggest this involves illicit economic activity?
Technically, there are no off-budget military expenditures as all financial outlays are authorised by Congress.
However, funding for overseas military operations is contained in a separate budget, the Overseas Contingency Operations fund, which is not subject to the Budget Control Act (a law that sets caps on spending)--and has in recent years been used for spending that is not directly related to overseas military operations. According to Davidson and Brooking, &quoute;in the case of Congress, OCO is a great way to authorize funds without having to exercise the same level of oversight and responsibility.&quoute; While the OCO fund is authorised by Congress and thus not technically off-budget, the laxity of oversight and lack of clarity as to which expenditure should count as OCO-relevant result in the same risks that off-budget expenditures do: the ability to spend money with little oversight and the possibility of resources being allocated without going through the usual channels providing assessment of needs and weighing of priorities. However, despite the large use of the OCO, there are no indications that it is used for illicit purposes.
Congress has begun to address the issue through a requirement to establish a Lead Inspector General for overseas operations lasting longer than 60 days, thus extending internal audit to operations funded from the OCO fund. The mandate of the Lead IG includes 'oversight of contracts, operations, governance, humanitarian and development assistance, and intelligence'; the Lead IG personnel deploy in the field to monitor operations. A current Lead IG for Operation Inherent Resolve (i.e. anti-ISIL actions) has submitted a report on operations up to 31 March 2015. However, while this development increases oversight over missions being executed, it does not address the budgetary process itself; it is also too early to assess the effectiveness of the arrangement. Therefore, it appears that score 2 is justified.
1) George Mason University, Mercator Center, "Personnel Costs May Overwhelm DOD Budget," http://mercatus.org/sites/default/files/derugy-dod-personnel-costs-analysis-pdf.pdf
2) Todd Harrison, "Chaos and Uncertainty: The FY 2014 defence Budget and Beyond," Center for Strategic and Budgetary Assessment, Oct. 2013 at 13,
http://www.csbaonline.org/publications/2013/10/chaos-and-uncertainty-the-fy-14-defence-budget-and-beyond/
3) Taxpayers for Common Sense, &quoute;Top 10 Reasons It’s Time to Re-Think OCO&quoute;, May 2014, http://www.taxpayer.net/library/article/top-10-reasons-its-time-to-re-think-oco
4) National Priorities Project, &quoute;Overseas Contingency Operations: The Pentagon Slush Fund&quoute; https://www.nationalpriorities.org/campaigns/overseas-contingency-operations/ Accessed September 2015
5) Janine Davison and Emerson Brooking, Council on Foreign Relations Blog, &quoute;How the Overseas Contingency Operations Fund Works—and Why Congress Wants to Make It Bigger&quoute; June 2016 http://blogs.cfr.org/davidson/2015/06/16/how-the-overseas-contingency-operations-fund-works-and-why-congress-wants-to-make-it-bigger/
6) Stefanie Condon, 'Pentagon &quoute;slush fund&quoute; pays for ISIS airstrikes, irking some in Congress', CBS News, 3 October 2014. http://www.cbsnews.com/news/pentagon-slush-fund-pays-for-isis-airstrikes-irking-some-in-congress/, accessed October 2015.
7) Lead Inspector General for Overseas Contingency Operations, 'Operation Inherent Resolve: Quarterly Report and Biannual Report to the United States Congress, 17 December 2014-31 March 2015'. https://oig.state.gov/system/files/oir_042915.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: Other than the already mentioned where the military seeks funding outside its current and official budget for additional expenditures, funding that demonstrates no characteristics that suggest illicit activity, there are no relevant off-budget military expenditures.
Suggested score:
In law, are there provisions regulating mechanisms for classifying information on the grounds of protecting national security, and, if so, are they subject to effective scrutiny?
There are numerous provisions regulating the classification and declassification of national security information. Executive Order 13526 pertaining to classification of information on the grounds of national security specifies four categories of classified information along with classification criteria, and vests the power to classify information in the President, Vice President, agency heads and officials delegated by agency heads. In some cases, delegation of authority has to be done in writing. DOD Manual 5200.01 lays out classification procedures and contains explanations of major terms.
The Information Security Oversight Office (ISOO) is responsible for devising policy and overseeing the government's classification system. ISOO annual reports gather classification statistics from each government department. A further layer of oversight was constituted by the "Reducing Over-Classification Act’&quoute; (January 22, 2010), which requires executive branch agencies’ inspectors general to conduct assessments of their agencies’ implementation of classification policies. However, the Federation of American Scientists has argued that DOD IG oversight of over-classification is superficial.
The Freedom of Information Act, which governs public access to information, contains provisions for exceptions based on national security. There are, however, review mechanisms and appeal procedures when Freedom of Information Act requests are denied on the basis of security classification. The Public Interest Declassification Board is an advisory committee established by Congress in 2000 to promote public access to information. It is intended to provide a full and reliable documentary record of significant U.S. national security decisions and activities. The Office of Government Information Services (OGIS) is required to:
• mediate disputes between FOIA requesters and federal agencies;
• review the policies and procedures of administrative agencies under FOIA;
• review agency compliance with FOIA; and
• recommend policy changes to the Congress and President to improve the administration of FOIA.
Nonetheless, there are numerous complaints about the difficulty and delay in obtaining requested information and the Department of defence has received a failing grade in a report on U.S. government agency implementation of FOIA.
Response to Peer Reviewers: Indeed, likely shortcomings in oversight, as well as delays in processing FOI requests could indicate that classification rules could be abused. Score lowered to 3.
1) Freedom of Information Act, 5 U.S.C.. §552 (2009)
2) Public Interest Declassification Board, http://www.archives.gov/declassification/pidb/
3) Honest Leadership and Open Government Act, Pub. L. No. 110-81; 121 Stat. 735 (2007)
4) Reducing Over-Classification Act, Pub. L. No. 111-258; Stat 2649 (2010)
5) Office of Government Information Services, http://www.archives.gov/about/organization/summary/ogis.html
6) DOD IG, "A Standard User's Guide for Inspectors General Conducting Evaluations Under Public Law 111-258," https://www.ignet.gov/randp/PL%20111-258%20Final%20Evaluation%20Guide-r.pdf
7) Tim Cushing, "Yet Again, A Freedom of Information Act Request Results in LESS Information Being Freed," May 15, 2014, https://www.techdirt.com/articles/20140428/14394027053/yet-again-freedom-information-act-request-results-less-information-being-freed.shtml
8) Steve Straehley, "Is the Freedom of Information Act One of Our Least Respected Laws?" http://www.allgov.com/news/controversies/is-the-freedom-of-information-act-one-of-our-least-respected-laws-140518?news=853178
9) Charles Battig, "Freedom From Information Act (FFIA)," http://www.americanthinker.com/2014/05/freedom_from_information_act_ffia.html
10) Elizabeth O’Connor Tomlinson, "Litigation under Freedom of Information Act," 110 Am. Jur. Trials 367 (2008), http://legalsolutions.thomsonreuters.com/law-products/c/110-Am-Jur-Trials-367-Litigation-Under-Freedom-of-Information-Act/p/990000330
11) Center for Effective Government. "Making the Grade: Access to Information Scorecard 2014," http://www.foreffectivegov.org/access-to-information-scorecard-2014
12) Matthews, Miriam and Nelson Lim. 2015. &quoute;Improving the Timeliness of Equal Employment Opportunity Complaint Processing in Department of defence.&quoute; RAND Corporation. Retrieved from http://www.rand.org/content/dam/rand/pubs/research_reports/RR600/RR680/RAND_RR680.pdf
13) U.S. Department of defence, Inspector General. 13 July 2012. &quoute;Enterprise Resource Planning Systems Schedule Delays and Reengineering Weaknesses Increase Risks to DoD's Auditability Goals.&quoute; Retrieved from http://www.dodig.mil/Audit/reports/fy12/DODIG-2012-111.pdf
14) The White House, 'Executive Order 13526- Classified National Security Information', 29 December 2009. https://www.whitehouse.gov/the-press-office/executive-order-classified-national-security-information, accessed October 2015.
15) The Information Security Oversight Office (ISOO), homepage. https://www.archives.gov/isoo/, accessed October 2015.
16) DOD Manual No. 5200. 01, Vol 1: 'DoD Information Security Program: Overview, Classification, and
Declassification', 24 Feb 2012. http://www.dtic.mil/whs/directives/corres/pdf/520001_vol1.pdf, accessed October 2014.
17) Federation of American Scientists, 'DoD Inspector General Report on Overclassification Misses the Mark', 24 October 2014. https://fas.org/blogs/secrecy/2013/10/dodig-overclass/, accessed October 2014.
Opinion: Disagree
Comment: Score should be 3 rather than 4, in light of the assessor's own statements regarding the difficulties and delays in obtaining classified information and the DOD's performance in complying with the FOIA.
Suggested score: 3
Opinion: Agree with Comments
Comment: Sources:
1) Matthews, Miriam and Nelson Lim. 2015. &quoute;Improving the Timeliness of Equal Employment Opportunity Complaint Processing in Department of defence.&quoute; RAND Corporation. Retrieved from http://www.rand.org/content/dam/rand/pubs/research_reports/RR600/RR680/RAND_RR680.pdf
2) U.S. Department of defence, Inspector General. 13 July 2012. &quoute;Enterprise Resource Planning Systems Schedule Delays and Reengineering Weaknesses Increase Risks to DoD's Auditability Goals.&quoute; Retrieved from http://www.dodig.mil/Audit/reports/fy12/DODIG-2012-111.pdf
Suggested score:
Do national defence and security institutions have beneficial ownership of commercial businesses? If so, how transparent are details of the operations and finances of such businesses?
No specific legal instrument or policy document that places restrictions on the DoD owning businesses has been found.
There is also no evidence of national defence or security agencies owning commercial entities, although the Pentagon provided, within the last 2 years, funding for technological companies: it decided to invest $75 million in a consortium of more than 100 companies, including Apple Inc. and Boeing Co., working on hybrid electronics. However, the amount of investment is well below 1% of the defence budget and there is no evidence of beneficial ownership of businesses.
The only example of the military owning a commercial venture (a bank) dates back to the late 1700s and first half of the 1800s the Bank of the United States and its successor the Second Bank of the United States created much controversy over the constitutionality of having a business entity profiteering as part of the government
1) Miller Center, University of Virginia. &quoute;American President, A Reference Resource Event Archive. Jackson Vetoes Bank Bill—July 10, 1832.&quoute; Accessed on 25 February 2015. Retrieved from http://millercenter.org/president/events/07_10
2) Yale Law School. 2008. &quoute;President Jackson's Veto Message Regarding the Bank of the United States; July 10, 1832.&quoute; Accessed on 25 February 2015. Retrieved from http://avalon.law.yale.edu/19th_century/ajveto01.asp
3) LA Times, &quoute;Secretary of defence unveils $75-million investment in Silicon Valley venture,&quoute; August 2015 http://www.latimes.com/business/la-fi-pentagon-cyber-20150829-story.html
4) Forbes, &quoute;Meet Silicon Valley's newest venture capitalist: The Pentagon&quoute; April 2015, http://fortune.com/2015/04/23/pentagon-silicon-vally-investing/
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are military-owned businesses subject to transparent independent scrutiny at a recognised international standard?
There is no evidence of U.S. defence Department ownership of commercial entities.
N/A
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: I have been unable to verify a specific legal instrument or policy document within the public space that lays out restrictions on the DoD owning businesses.
The United States has a degree of institutional learning historically on this topic. In this history there is a precedence for the United States government owning a commercial entity, which was in the form of a bank. During the late 1700s and first half of the 1800s the Bank of the United States and its successor the Second Bank of the United States created much controversy over the constitutionality of having a business entity profiteering as part of the government.
1) Miller Center, University of Virginia. &quoute;American President, A Reference Resource Event Archive. Jackson Vetoes Bank Bill—July 10, 1832.&quoute; Accessed on 25 February 2015. Retrieved from http://millercenter.org/president/events/07_10
2) Yale Law School. 2008. &quoute;President Jackson's Veto Message Regarding the Bank of the United States; July 10, 1832.&quoute; Accessed on 25 February 2015. Retrieved from http://avalon.law.yale.edu/19th_century/ajveto01.asp
Suggested score:
Is there evidence of unauthorised private enterprise by military or other defence ministry employees? If so, what is the government's reaction to such enterprise?
Executive branch employees are subject to a number of limitations on the outside activities in which they may be involved. An employee may not have outside employment or be involved in an outside activity that conflicts with the official duties of the employee's position (i.e. if it is explicitly prohibited by agency regulations or if it influences the employee's ability to perform their duties).
DOD has embodied the employment rules in its Code of ethics and each military branch has done the same.
There are numerous examples of prosecutions for violating the code of ethics with regard to unauthorised private enterprise. The following are examples taken from DOD's Encyclopedia of Ethical Failure:
Bribery and Fraud Lands Program Manager in Jail:
A Program Manager (PM) who was responsible for administering computer contracts received kickbacks and ran his own business defrauding the Government. He was sentenced to five years in prison, required to repay the $3.2 million and charged a $2,400 fine.
Documenting Misconduct:
...a former employee of the National Archives and Records Administration (NARA), faces a hefty penalty for engaging in a felony conflict of interest. [the employee] served as an Archives Technician at NARA, a position in which he assisted the public with requests for court documents maintained by NARA. He also owned and operated a company that charged its customers a fee for obtaining court records in addition to the fees charged by NARA. [He] faces the possibility of five years in prison and a $250,000 fine.
1) OGE, Standards of Conduct, 5 C.F.R. Part 2635, http://www.oge.gov/Laws-and-Regulations/OGE-Regulations/5-C-F-R--Part-2635---Standards-of-ethical-conduct-for-employees-of-the-executive-branch/
2) DOD, Standards of Conduct Office, http://www.dod.gov/dodgc/defence_ethics/
3) DOD Directive 5500.07, Standards of Conduct. www.dtic.mil/whs/directives/corres/pdf/550007p.pdf
4) DOD 5500.07-R, The Joint Ethics Regulation (JER), including Changes 1-7. https://ia.signal.army.mil/docs/DOD5500.../jer1-4.pd
5) 5 C.F.R., Part 3601, Supplemental Standards of Conduct for Employees of DOD. http://www.law.cornell.edu/cfr/text/5/part-3601
6) DOD, Office of General Counsel, Standards of Conduct Office, "Encyclopedia of Ethical Failure" (July 2012), http://www.dod.mil/dodgc/defence_ethics/
7) U.S. Office of Government Ethics. &quoute;Enforcement.&quoute; Accessed on 25 February 2015. Retrieved from http://www.oge.gov/Topics/Enforcement/Enforcement/
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: U.S. Office of Government Ethics. &quoute;Enforcement.&quoute; Accessed on 25 February 2015. Retrieved from http://www.oge.gov/Topics/Enforcement/Enforcement/
Suggested score:
Do the Defence Ministry, Defence Minister, Chiefs of Defence, and Single Service Chiefs publicly commit - through, for example, speeches, media interviews, or political mandates - to anti-corruption and integrity measures?
President Barack Obama- Commander in Chief of the Armed Forces- has made several speeches and statements on the importance of anti-corruption, both within the US defence establishment and abroad.
In light of a series of defence ethics scandals, the former Secretary of defence Chuck Hagel has appointed an Ethics Czar, Navy Rear Adm. Margaret "Peg" Klein, and recommitted DOD to ethical conduct by launching a series of investigations as well as firing a mid-level commander. Additionally, Hagel immediately created a new training regimen targeted towards shedding light on these ethical issues.
The Secretary of the Navy has spoke out against corruption and appointed a special review team to look into specific incidents of corruption.
Gen. Jim Amos, the Commandant of the Marine Corps, announced a "reawakening" campaign last fall aimed at reinforcing standards and discipline, though it was not corruption-specific.
Perhaps the strongest statement of intent related to corruption is in the 2015 National Security Strategy, which includes several mentions of the importance of tackling corruption; however, it primarily focuses on tackling corruption in other states, with only one mention of good governance in the US. Vice President Joe Biden has spoken out particularly strongly on issues of corruption as a threat to international security. In a speech in Romania he focused on its impact on national security, stating: &quoute;Corruption is just another form of tyranny. And corruption can represent a clear and present danger not only to a nation’s economy, but to its very national security. There are nations, and we’ve seen it recently, that exploit corruption to exercise malign influence and undermine the very sovereignty and independence of their neighbors... We’ve recently seen [corruption compromise physical security and military readiness] in Ukraine. We saw how over a decade and a half of corruption, literally has hollowed out their military institutions and weakened that country’s very capacity to defend itself.&quoute;
1) Navy News, "Marine Corps commandant weighs in on DOD's ethics push: 'Remember, you are mortal'" Feb. 11, 2014, http://www.dod.mil/dodgc/defence_ethics/
2) Military Times, Andrew Tilghman, "Hagel Digs Deep into Military Ethics Problems, Feb. 18, 2014, http://www.militarytimes.com/article/20140218/NEWS05/302180006/Hagel-digs-deep-into-military-ethics-problem
3) "Focus on Ethics, Interview with Chief of Naval Operations, Admiral Jonathan Greenert," Feb. 9, 2014 by jfmetzger, http://cno.navylive.dodlive.mil/2014/02/09/focus-on-ethics/
4) Memo from Secretary of defence, "Ethics, Integrity and Accountability," May 2, 2012, http://www.dod.mil/dodgc/defence_ethics/
5) Jim Garamone. &quoute;Hagel Chooses Navy Admiral to Oversee Ethics Efforts,&quoute; Mar. 25, 2014, www.defence.gov/news/newsarticle.aspx?id=121896
6) Department of defence Press Briefing by Secretary Mabus on Navy Husbanding Policies and Contracting Initiatives, Dec. 20, 2013, http://www.defence.gov/transcripts/transcript.aspx?transcriptid=5346
7) Huffington Post, "Bribery Case Sparks Navy Anti-Corruption Panel," June 11, 2011, http://www.huffingtonpost.com/2011/04/11/bribery-case-sparks-navy-_n_847698.html
8) Alternet, &quoute;Obama's serious about taking an axe to corruption and waste at the Pentagon,&quoute; March 2009, http://www.alternet.org/story/131727/obama's_serious_about_taking_an_axe_to_corruption_and_waste_at_the_pentagon
9) Barack Obama, speech in Kenya at the AU, &quoute;An Honest Government, A Hopeful Future,&quoute; August 2006, http://obamaspeeches.com/088-An-Honest-Government-A-Hopeful-Future-Obama-Speech.htm
10) Atlantic Council, &quoute;The US Military's Ethics Crisis,&quoute; February 2014, http://www.atlanticcouncil.org/blogs/new-atlanticist/the-us-military-s-ethics-crisis
11) Navy Times, &quoute;Marine Corps commandant weighs in on DOD's ethics push: 'Remember, you are mortal'
&quoute;, February 2014, http://archive.navytimes.com/article/20140211/NEWS05/302110025/Marine-Corps-commandant-weighs-DOD-s-ethics-push-Remember-you-mortal-
12) 2015 US National Security Strategy, https://www.whitehouse.gov/sites/default/files/docs/2015_national_security_strategy_2.pdf Accessed Sept 2015
Opinion: Agree with Comments
Comment: Given the departure of Secretary Hagel, we have yet to see how the DOD's commitment to anti-corruption and integrity measures will fare under the new Chief.
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are there effective measures in place for personnel found to have taken part in forms of bribery and corruption, and is there public evidence that these measures are being carried out?
Manifestations of corruption, such as passive and active bribery of public officials, are prohibited by the US Federal Code, section 18. The Code foresees penalties of imprisonment or fines for these offences. The DOD's Joint Ethics Regulation reiterates the provisions of the Code and states than administrative sanctions could also be applied.
Each military branch and DOD itself has an ethics office, charged with training, publicizing and enforcing the government ethics rules. Criminal cases are frequently pursued in state and federal courts. There are numerous examples of enforcement; some are listed below:
- A U.S. Army soldier was sentenced to serve 12 months and one day in prison for his role in stealing fuel at Forward Operating Base Fenty near Jalalabad, Afghanistan.
- On August 22, 2013, the Eastern District Court of Louisiana sentenced an employee to 10 months incarceration for conspiring to commit wire fraud and receive illegal kickbacks while employed in Afghanistan. The judge imposed a civil forfeiture of $60,000 and a special assessment of $100.
- A former U.S. Army contracting officer, his wife, his sister and his niece were sentenced for their participation in a bribery and money laundering scheme related to bribes paid for contracts awarded in support of the Iraq war. The sentences included 210 months in prison, 3 years of supervised release, and payment of $9.6 million in restitution.
In February 2015, three naval officers were censured for involvement in bribery.
However, despite these examples, there have been a large number of ethical violations hitting the headlines in the past couple of years, calling into question the effectiveness of measures. Similarly, reports by the Special Inspector General for Afghan Reconstruction (SIGAR) have highlighted corruption by US military officers in Afghanistan. In an article for Slate, Julia Harte argues that &quoute;many of these crimes grew out of shortcomings in the military’s management of the deployments that experts say are still present,&quoute; including &quoute;loose and harried oversight within the ranks.&quoute; This brings into question the consistency and effectiveness of measures, underpinning the score of 3.
1) DOD, Office of General Counsel, Standards of Conduct Office, "Encyclopedia of Ethical Failure" (July 2012), http://www.dod.mil/dodgc/defence_ethics/
2)Special IG for Afghan Construction, http://www.sigar.mil/about/index.aspx?SSR=1
3) Department of Justice, Office of Public Affairs, Press Release (March 13, 2014), "Army Soldier Sentenced for Facilitating Thefts of Fuel in Afghanistan," http://www.justice.gov/opa/pr/2014/March/14-crm-267.html
4) Department of Justice, Press Release, Army Officer, Wife and Relatives Sentenced in Bribery
and Money Laundering Scheme Related to DOD Contracts in Support of Iraq War. (Dec. 2, 2009) http://www.justice.gov/atr/public/press_releases/2009/252618.htm
5) Special Inspector General for Afghan Construction, http://www.sigar.mil/about/index.aspx?
6) Eric Tucker, Mint Press News, &quoute;Justice Department Investigation Shows Rampant Fraud, Corruption In US Military&quoute; November 17, 2014 http://www.mintpressnews.com/justice-department-investigation-shows-rampant-fraud-corruption-us-military/198985/
7) NBC News, &quoute;Panetta orders review of ethical standards amid allegations of misconduct among high-level military leaders,&quoute; November 2012, http://usnews.nbcnews.com/_news/2012/11/15/15166642-panetta-orders-review-of-ethical-standards-amid-allegations-of-misconduct-among-high-level-military-leaders?lite
8) Dan Wright, Mint Press News, &quoute;Special Investigator’s Report Details US Corruption In Afghanistan,&quoute; August 2015, http://www.mintpressnews.com/special-investigators-report-details-us-corruption-in-afghanistan/208365/
9) Julia Harte, Slate, &quoute;The Fraud of War: U.S. troops in Iraq and Afghanistan have stolen tens of millions through bribery, theft, and rigged contracts,&quoute; May 2015, http://www.slate.com/articles/news_and_politics/politics/2015/05/u_s_troops_have_stolen_tens_of_millions_in_iraq_and_afghanistan_center_for.html
10) U.S. Code, Section 18, § 201 - Bribery of public officials and witnesses. https://www.law.cornell.edu/uscode/text/18/201, accessed October 2015.
11) Joint Ethics Regulation (JER), DOD 5500.7-R, http://www.dod.mil/dodgc/defence_ethics/ethics_regulation/
12) Christopher Cavas, '3 Admirals Censured in 'Fat Leonard' Scandal', defenceNews, 11 February 2015. http://www.defencenews.com/story/defence/naval/navy/2015/02/10/navy-admirals-scandal-fat-leonard-gdma-flags-corruption-bribery-carrier-reagan-deployment-singapore/23167837/, accessed October 2015.
Opinion: Agree with Comments
Comment: It is hard to extrapolate from a few cases and conclude that the anti-corruption and bribery measures are carried out consistently and effectively.
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is whistleblowing encouraged by the government, and are whistle-blowers in military and defence ministries afforded adequate protection from reprisal for reporting evidence of corruption, in both law and practice?
Each military branch and DOD itself has a whistleblower program, and protection has been expanded recently to cover employees of defence contractors and employees in the intelligence and national security communities. DOD Instruction 7050.06, which applies to the DOD and its commands and agencies, restates the employees' and service members' right to make unfettered protected communications. It also prohibits reprisals against whistleblowers; however, it restricts the whistleblower's right to make a reprisal complaint to 1 year, unless certain circumstances are present. The Instruction states that DOD Inspector General is responsible for carrying out investigations into any reprisals, and to ensure that investigating staff are outside the immediate chain of command of the whistleblower. However, it is still challenging to be a whistleblower and there remains a great deal of criticism about the military handling of whistleblowers.
A Government Accountability Office study recommended that DOD implement procedures to track and report data on its case processing timeliness, take actions to improve oversight of its investigative process, and develop processes to ensure appropriate corrective actions are taken in substantiated cases. It noted three areas that need improvement: performance metrics to monitor the quality of investigations into reprisals; updated guidance on the whistleblower process, particularly for the DOD IG; and standardised case monitoring processes.
An internal Pentagon report, &quoute;Review of Office of Deputy Inspector General for Administrative Investigations, Directorate for Military Reprisal Investigations, &quoute; obtained by POGO through a FOIA request, criticised handling of whistleblower reprisal complaints, and raised concerns about case tracking and timeliness of response. The report by the Center for Public Integrity (source 21) covers this report and provides more detailed information on the DOD's failure to protect whistleblowers.
US legislation also distinguishes between national security whistleblowers and those in other departments. The Government Accountability Project notes that the Whistleblower Protection Enhancement Act (WPEA, 2012) contained effective whistleblower protection for 80 million of private sector workers and most federal employees, it did not safeguard the rights of all national security whistleblowers sufficiently. The briefing report by the Brennan Center (23) supports the argument that there are gaps in US whistleblowing policy related to national security whistleblowers. The recent cases of Chelsea Manning and Edward Snowden, as well as other prosecutions under the 1917 Espionage Act, have raised further questions regarding the boundaries of whistleblowing and the degree to which it needs to be protected. (24)
1) GAO, "Whistleblower Protection: Actions Needed to Improve DOD’s Military Whistleblower Reprisal Program," GAO Report 12-362, Feb. 2012, http://www.gao.gov/assets/590/588784.pdf
2) Presidential Policy Directive (PPD-19), Oct. 10, 2012), http://www.va.gov/ABOUT_VA/docs/President-Policy-Directive-PPD-19.pdf
3) Under Secretary of defence, Directive-type Memorandum (DTM) 13-008, "DOD Implementation of Presidential Policy Directive 19," Dec. 17, 2013, http://www.pogoarchives.org/m/wi/white-house-10-10-12.pdf
3) National defence Authorization Act for Fiscal Year 2013, S. 2, 112th Cong. §827 (2013).
http://docs.house.gov/billsthisweek/20121217/CRPT-112HRPT-705.pdf
4) POGO, "DOD Memo Sheds Light on New Whistleblower Protections," Aug. 7, 2013, http://www.pogo.org/blog/2013/08/20130807-dod-memo-sheds-light-on-new-whistleblower-protections.html
5) Protected Communications; prohibition of retaliatory personnel actions. (Also known as Whistleblower Protection Act), 10 U.S.C.§ 1034 (1998)
6) Military Whistleblower Protection, DOD Directive (DODD) 7050.06, July 23, 2007, http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf
7) IG Act of 1978, Pub L. 95-452, §1, 92 Strat. 1101 (1978), http://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg1101.pdf
8) DOD IG, DODD 5106.01, Apr. 20, 2012, www.dtic.mil/whs/directives/corres/pdf/510601p.pdf
9) 5 U.S.C. 2302 (as amended by the Whistleblower Protection Enhancement Act of 2012), Prohibited Personnel Practices (Federal Civilian Whistleblower), https://www.govtrack.us/congress/bills/112/s743
10) Presidential Policy Directive 19, Protecting Whistleblowers with Access to Classified Information, Oct 10, 2012) http://www.fas.org/irp/offdocs/ppd/
11) Directive-Type Memorandum 13-008, DOD Implementation of Presidential Policy Directive 19, July 8, 2013, http://www.dtic.mil/whs/directives/corres/dir3.html
12) Employees of Nonappropriated Fund Instrumentalities (NAFI Whistleblower), 10 U.S.C. §1587, http://www.law.cornell.edu/uscode/text/10/1587
13) DOD Nonappropriated Fund Instrumentality (NAFI) Employee Whistleblower Protection, DODD 1401.03, June 13, 2014, http://www.dtic.mil/whs/directives/corres/pdf/140103p.pdf
14) Contractor Employees: Protection From Reprisal For Disclosure of Certain Information, 10 U.S.C. 2409, 2008, http://www.law.cornell.edu/uscode/text/10/2409
15) Whistleblower Protections for Contractor Employees, defence FAR Subpart 203.9. 17, http://www.acq.osd.mil/dpap/dars/dfars/pdf/r20090115/203_9.pdf
16) Government Accountability Project, http://www.whistleblower.org/node/49
17) POGO, "Internal Review Shows Gross Mishandling of Military Whistleblower Reprisal Investigations," May 8, 2012, http://www.huffingtonpost.com/project-on-government-oversight/military-whistleblowers_b_1501139.html
18) Office of the Inspector General U.S. Department of defence. &quoute;Department of defence Whistleblower Program.&quoute; Accessed on 21 February 2015. http://www.dodig.mil/programs/whistleblower/index.html
19) Office of the Inspector General U.S. Department of defence. 07 November 2014. &quoute;Guide to Investigating Military Whistleblower Reprisal and Restriction Complaints.&quoute; Retrieved from http://www.dodig.mil/Programs/Whistleblower/ioguide.html
20) &quoute;Review of Office of Deputy Inspector General for Administrative INvestigations, Directorate for Military Reprisal Investigations,&quoute; May 16 2011, https://www.documentcloud.org/documents/351491-dod-ig-internal-review-of-whistleblowing.html (accessed Sept 2015)
21) Center for Public Integrity, &quoute;Pentagon failed to protect whistleblowers,&quoute; May 2012, http://www.publicintegrity.org/2012/05/05/8818/pentagon-failed-protect-whistleblowers
22) Government Accountability Project, National Security & Human Rights
overview page, http://whistleblower.org/national-security-human-rights-0#sthash.A4B12SZZ.dpuf accessed September 2015
23) Brennan Center for Justice at New York University School of Law, &quoute;NATIONAL SECURITY WHISTLEBLOWING: A Gap in the Law,&quoute; https://www.brennancenter.org/sites/default/files/analysis/Factsheet%20-%20National%20Security%20Whistleblowing.pdf (not dated; accessed September 2015)
24) Jamie Tarabay, 'Obama and leakers: Who are the eight charged under the Espionage Act?', 5 December 2013. http://america.aljazeera.com/articles/2013/12/5/obama-and-leakerswhoaretheeightchargedunderespionageact.html, accessed October 2015.
Opinion: Agree with Comments
Comment: Given the complexity of whistleblowing as well as the complexity of organizational culture, it could be considered not surprising that this action is seen as a threat to stability and good order, especially in military organizations.
Suggested score:
Opinion: Agree with Comments
Comment: The DOD Inspector General has recently released an updated guide to investigating reprisal and restriction complaints regarding whistleblowers within the military.
Sources:
1) Office of the Inspector General U.S. Department of defence. &quoute;Department of defence Whistleblower Program.&quoute; Accessed on 21 February 2015. http://www.dodig.mil/programs/whistleblower/index.html
2) Office of the Inspector General U.S. Department of defence. 07 November 2014. &quoute;Guide to Investigating Military Whistleblower Reprisal and Restriction Complaints.&quoute; Retrieved from http://www.dodig.mil/Programs/Whistleblower/ioguide.html
Suggested score:
Is special attention paid to the selection, time in post, and oversight of personnel in sensitive positions, including officials and personnel in defence procurement, contracting, financial management, and commercial management?
DOD and Office of Personnel Management (OPM) regulations define sensitive and non-sensitive positions. A sensitive position is defined as ' position so designated within the Department of defence, the occupant of which could bring about, by virtue of the nature of the position, a materially adverse effect on the national security' (9, p. 11) They usually involve access to classified information. There is no authoritative list of sensitive positions; the determination can be made with regard to each post by managers. However, there are criteria for classifying a post as sensitive. (11) Sensitive posts involve those with responsibilities for large procurement projects above certain thresholds, financial transactions, preparation of policies, or investigative and fiduciary duties. (9, 11)
Personnel in sensitive positions are required to have a security clearance. An agency within the DoD, the defence Security Service (DSS), provides security support services to federal defence agencies and the military. A security clearance involves investigation into, among other things, criminal history, employment, family, financial and credit history, and personal conduct. (12)
While the rules regarding designation of sensitive positions and recruitment have been made public, no information on employees' time in post and oversight has been found. The general DOD ethics codes and rules of conduct apply to employees in sensitive positions. (13, 14)
1) GAO, "Acquisition Workforce: DOD’s Efforts to Rebuild Capacity Have Shown Some Progress," Statement of John P. Hutton, Director Acquisition and Sourcing Management GAO-12-232T, Nov. 16, 2011, http://www.gao.gov/products/GAO-12-232T
2) CRS, "Twenty-five Years of Acquisition Reform: Where Do We Go from Here?" Statement of Moshe Schwartz, Specialist in defence Acquisition before the Committee on Armed Services, House of Representatives, October 29, 2013, http://docs.house.gov/meetings/AS/AS00/20131029/101414/HHRG-113-AS00-Wstate-SchwartzM-20131029.pdf
3) National Security Clearance Service Provider: http://www.nationalsecurityclearances.com/dod/
4) defence Security Service information: http://www.dss.mil/about_dss/mission.html
5) Civilian Personnel Policy (CPP) and the defence Civilian Personnel Advisory Service (DCPAS): www.cpms.osd.mil/Subpage/About/.
6) U.S. Department of Justice. &quoute;Do it Right.&quoute; Accessed on 21 February 2015. Retrieved from http://www.justice.gov/jmd/do-it-right#fourtyseven
7) U.S. Department of defence, General Counsel. 12 July 2011. &quoute; Application of the Procurement Integrity Act and Regulations.&quoute; Retrieved from http://www.dod.mil/dodgc/defence_ethics/
8) U.S. Department of defence, General Counsel. 17 November 2011. &quoute;DoD 5500.07-R, The Joint Ethics Regulation (JER).&quoute; Retrieved from http://www.dod.mil/dodgc/defence_ethics/
9) DOD Personnel Security Programme (DOD-5200.02), January 2987, updated 2996. http://www.dtic.mil/whs/directives/corres/pdf/520002r.pdf, accessed October 2015.
10) defence Civilian Personnel Advisory Service, 'The Suitability Guide for Employees'. http://www.cdse.edu/documents/cdse/suit_guide_for_employees.pdf, accessed October 2015.
11) Office of Personnel Management, 'Position Designation of National Security and Public Trust Positions', https://www.opm.gov/investigations/background-investigations/position-designation-tool/oct2010.pdf, accessed October 2015.
12) defence Security Service, homepage. http://www.dss.mil/about_dss/mission.html, accessed October 2015.
13) Standards of Conduct&quoute; Directive, DODD 5500.7. http://www.dod.mil/dodgc/defence_ethics/ethics_regulation/
14) Joint Ethics Regulation (JER), DOD 5500.7-R, http://www.dod.mil/dodgc/defence_ethics/ethics_regulation/
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: DoD employees involved in contract management and procurement are subject to the Standards of Ethical Conduct. These standards are based on Executive Order 12674 (amended by Executive Order 12731), which applies to all federal employees. Contract and procurement employees are also subject to 41 U.S.C. § 423; this statute is implemented as part 3.104 of the Federal Acquisition Regulation and places more stringent standards on employee activities. DoD specific policies and guidelines fall under DoD 5500.07-R, The Joint Ethics Regulation (JER) (including Changes 1-7).
1) U.S. Department of Justice. &quoute;Do it Right.&quoute; Accessed on 21 February 2015. Retrieved from http://www.justice.gov/jmd/do-it-right#fourtyseven
2) U.S. Department of defence, General Counsel. 12 July 2011. &quoute; Application of the Procurement Integrity Act and Regulations.&quoute; Retrieved from http://www.dod.mil/dodgc/defence_ethics/
3) U.S. Department of defence, General Counsel. 17 November 2011. &quoute;DoD 5500.07-R, The Joint Ethics Regulation (JER).&quoute; Retrieved from http://www.dod.mil/dodgc/defence_ethics/
Suggested score:
Is the number of civilian and military personnel accurately known and publicly available?
Military and civilian personnel employed by DOD are available through census reports as well as employment reports conducted by the Pentagon. There is no evidence that the numbers reported are inaccurate. Congress sets minimum and maximum personnel levels (and can mandate cuts) in the annual National defence Authorization Acts.
1) US Census reports, https://www.census.gov/prod/2011pubs/12statab/defence.pdf
2) DOD Mission, http://godefence.cpms.osd.mil/about_DODmission.aspx
3) Don J. Jansen et al, Congressional Research Service, 'FY2016 National defence Authorization Act:
Selected Military Personnel Issues', 22 July 2015. http://www.fas.org/sgp/crs/natsec/R44120.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are pay rates and allowances for civilian and military personnel openly published?
The defence Finanse Accounting Service publishes pay rates and allowances for all military personnel. Allowance rates include: basic allowance for housing (BAH), basic allowance for subsistence (BAS), and the cost of living allowance (COLA) rates.(1) It also publishes allowances for civilian employees. (6) Pay rates of civilian employees are published by the Office of Personnel Management (5).
1) defence Finanse Accounting Service, '2015 MIlitary Pay Chart'. http://www.dfas.mil/dam/jcr:7061e0ca-a436-42f9-aa30-1a93b6454aa3/2015MilitaryPayChart.pdf, accessed October 2015.
2) DOD, Under Secretary Of defence for Personnel And Readiness, Military Compensation Background Papers, "Compensation Elements and Related Manpower Cost Items: Their Purposes and Legislative Backgrounds," 7th Edition (Nov. 2011),
http://militarypay.defence.gov/REPORTS/BACKGROUND%20PAPERS/docs/MC_All-Combined.pdf
3) DOD defence Finance and Accounting Service, Pay Tables 1949-2014, http://www.dfas.mil/militarymembers/payentitlements/militarypaytables.html
4) U.S. Department of defence. 22 December 2014. &quoute;DoD Releases 2015 Military Pay and Compensation Rates.&quoute; Retrieved from http://www.defence.gov/Releases/Release.aspx?ReleaseID=17086
5) Office of Personnel Management , 'Pay and Leave, 2015'. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/#url=2015, accessed October 2015.
6) defence Finanse Accounting Service, 'Entitlements'. http://www.dfas.mil/civilianemployees/understandingyourcivilianpay/entitlements.html, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: The U.S. DoD also publishes the latest allowance rates for service members. Those allowance rates include: basic allowance for housing (BAH), basic allowance for subsistence (BAS), and the cost of living allowance (COLA) rates.
Source: U.S. Department of defence. 22 December 2014. &quoute;DoD Releases 2015 Military Pay and Compensation Rates.&quoute; Retrieved from http://www.defence.gov/Releases/Release.aspx?ReleaseID=17086
Suggested score:
Do personnel receive the correct pay on time, and is the system of payment well-established, routine, and published?
The DOD pay system, managed by the defence Finance and Accounting Service, is well-established and routine. DOD publishes pay dates for various components in advance and the process is managed through an online MyPay system. The Financial Management Regulation mandates that military pay should be relayed electronically. Should that not be possible, alternative, clear and publicly available procedures apply, with clearly set staff responsibilities. (9) Basic pay rates are set (see Q39).
However, DOD pay is dependent on funds being authorised by Congress. In recent years, cases of government shutdowns occurred due to Congress failing to authorise funds for operational costs. During a 2013 shutdown, military pay continued because Congress passed legislation specifically to protect it (though it was received as back-pay); it did not, however, apply to all DOD civilians). That measure has expired, so at the time of writing (September 2015), with another possible shut-down in the near future, there are concerns that military personnel could go unpaid until Congress approves a funding plan.
1) Information about pay dates for 2014, http://www.military.com/benefits/2013/09/14/2014-proposed-military-pay-charts.html
2) US Census reports, https://www.census.gov/prod/2011pubs/12statab/defence.pdf
3) DOD Mission, http://godefence.cpms.osd.mil/about_DODmission.aspx
4) Sequestration: What Does It Mean For Military Families?" http://www.militaryfamily.org/feature-articles/sequestration-what-does-it.html
5) Leda Gore, AL.Com, &quoute;1.3 million troops, 750,000 civilians would not be paid during government shutdown, Pentagon says,&quoute; September 2015, http://www.al.com/news/index.ssf/2015/09/pentagon_13_million_troops_750.html
6) Andrew Tilghman, Military Times, &quoute;DoD warns troops of possible government shutdown&quoute; September 25, 2015, http://www.militarytimes.com/story/military/pentagon/2015/09/25/shutdown-mil-pay/72740002/
7) defence Finance and Accounting Service, MyPay. http://www.dfas.mil/, accessed October 2015.
8) DoD Instruction 7000.14-R Financial Management Regulation, Volume 7A, Appendix C, September 2015. http://comptroller.defence.gov/Portals/45/documents/fmr/current/07a/07a_appendix_c.pdf, accessed October 2015.
9) United States Army Financial Management Command (USAFMCOM) Operational Support Team, 'Introduction to Disbursing'. Updated September 2015. http://asafm.army.mil/Documents/OfficeDocuments/FinancialOps/Guidances/usafincom/ost/id.pptx, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there an established, independent, transparent, and objective appointment system for the selection of military personnel at middle and top management level?
DOD and each of the military branches have regulations regarding hiring and promotions that are publicly available. The sources identify some of these, including policies for recruitment and employment of civilian personnel and development of workforce and for supervisory, managerial and executive development of civilian employees; and the policy, managerial framework, organizations, and the delivery of personnel services for the Active Army, the Army National Guard/Army National Guard of the United States, and the U.S. Army Reserve. There is no evidence of a lack of independence in the appointment system.
The top managers are appointed with the advice and consent of the Senate. The top jobs in the intelligence services, like all other Federal government agencies, are subject to advice and consent of the Senate. There is full investigation of suitability but political questions are influential in some cases. However, the appointment of Chuck Hagel, a Republican, as a Democratic administration's Secretary of defence, suggests merit-based rather than purely political appointments.
1) DOD Instruction, No. 1400.25, Volume 2005, March 3, 2012, DOD Civilian Personnel Management System; defence Civilian Intelligence Personnel Management System, http://www.dtic.mil/whs/directives/corres/pdf/1400.25-V2005.pdf
2) DOD Instruction, No. 1400.25, Volume 410, DOD Civilian Personnel Management System: Training, Education and Professional Development, Sept. 25, 2013, http://www.dtic.mil/whs/directives/corres/pdf/140025v410.pdf
3) Army Regulation 600–8, Personnel-General, Military Human Resources Management, Apr. 11, 2014, http://www.apd.army.mil/pdffiles/r600_8.pdf
4) Office of the Under Secretary of defence for Acquisitions, Technology and Logistics, Memorandum: Contracting Officer Warranting Program Model, Feb. 10, 2012, http://www.acq.osd.mil/dpap/policy/policyvault/USA000606-12-DPAP.pdf
5) U.S. Office of Personnel Management. &quoute;Oversight Activities, Accountability.&quoute; Accessed on 21 February 2015. Retrieved from http://www.opm.gov/policy-data-oversight/oversight-activities/compliance/
6) U.S. Office of Personnel Management. &quoute;Oversight Activities, Compliance.&quoute; Accessed on 21 February 2015. Retrieved from http://www.opm.gov/policy-data-oversight/oversight-activities/accountability/#url=Overview
7) U.S. Department of defence, Office of the Under Secretary for Personnel and Readiness. &quoute;Accession Policy Mission & Function.&quoute; Accessed on 21 February 2015. Retrieved from http://prhome.defence.gov/RFM/MPP/AP/Mission.aspx
8) The Economist, &quoute;Hagelian dialectic&quoute; February 2013, http://www.economist.com/news/united-states/21571885-far-scholarly-process-hagelian-dialectic
Opinion: Agree with Comments
Comment: I would add that it has been reported that in considerations of appointments and promotions in the officer corps, there is a tradition of favoring graduates of the military academies over graduates of ROTC and OCS programs.
Suggested score:
Opinion: Agree with Comments
Comment: The Office of Personnel Management (OPM) oversees the federal personnel system under the authority of the Civil Service Reform Act of 1978 and has the authority to require federal agencies to establish Human Resource Management accountability systems. Legal authority for OPM compliance and oversight resides in 5 U.S.C. 1104(b) (2) and 5 CFR, Part 5 and 10 discuss OPM regulations for enforcement, corrective action, and agency responses to corrective action.
Sources:
1) U.S. Office of Personnel Management. &quoute;Oversight Activities, Accountability.&quoute; Accessed on 21 February 2015. Retrieved from http://www.opm.gov/policy-data-oversight/oversight-activities/compliance/
2) U.S. Office of Personnel Management. &quoute;Oversight Activities, Compliance.&quoute; Accessed on 21 February 2015. Retrieved from http://www.opm.gov/policy-data-oversight/oversight-activities/accountability/#url=Overview
3) U.S. Department of defence, Office of the Under Secretary for Personnel and Readiness. &quoute;Accession Policy Mission & Function.&quoute; Accessed on 21 February 2015. Retrieved from http://prhome.defence.gov/RFM/MPP/AP/Mission.aspx
Suggested score:
Are personnel promoted through an objective, meritocratic process? Such a process would include promotion boards outside of the command chain, strong formal appraisal processes, and independent oversight.
DOD and each of the military branches have regulations on promotion and career progression, which are publicly available. There are separate programs for military and civilian personnel, each with formal processes and appraisal mechanisms. Oversight is provided by the Under-Secretary of defence for Personnel and Readiness.(7)
There is a centralized selection process, which indicates that promotions are not made by those in an officer's command chain. The centralized selection process for promotion applies to all grades except general, lieutenant general, first lieutenant and chief warrant officer W–2. The promotion boards for all grades except general, lieutenant general, first lieutenant and chief warrant officer W–2 consist of five officers of higher rank than the officers being considered. The President, with the advice and consent of the Senate, appoints generals and lieutenant generals. According to Army Regulation 600–8–29, Personnel—General, Officer Promotions, &quoute;Promotions to the grade of major and above must be confirmed by the Senate (In line with 10 USC 624 [c])&quoute;. The Secretary of the Army (SA), or the Secretary’s designee, will review annually the content of administrative briefings provided to selection boards to ensure that they do not alter the substantive guidance provided by the SA. For detailed regulations of the promotion process see #4 in sources.
The promotion boards in the military services have been criticized for not promoting diversity.
1) Department of the Navy, Pers-801, Active and Reserve Officer Career Progression, http://www.public.navy.mil/bupers-npc/career/officercareerprogression/Pages/default.aspx
2) Information about Navy promotion boards, http://www.public.navy.mil/bupers-npc/boards/Pages/default.aspx
3) Military Leadership Diversity Commission, Final Report, "From Representation to Inclusion: Diversity Leadership for a 21st Century Military," March 15, 2011, http://diversity.defence.gov/Portals/51/Documents/Special%20Feature/MLDC_Final_Report.pdf
4) Department of the Army, Army Regulation 600–8–29, Personnel—General, Officer Promotions, Feb, 25, 2005, http://www.apd.army.mil/pdffiles/r600_8_29.pdf
5) Glassdoor, www.glassdoor.com/Reviews/US-Department-of-defence-Reviews-E14798.htm 6) DOD defence Civilian Personnel Advisory Services, http://www.cpms.osd.mil/
6) Rand Corporation. &quoute;DOPMA/ROPMA Policy Reference Tool, Promotion Boards.&quoute; Accessed on 21 February 2015. Retrieved from http://dopma-ropma.rand.org/promotion-boards.html
7) DOD Instruction no. 1320.14, 11 December 2013. http://www.dtic.mil/whs/directives/corres/pdf/132014p.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: See link for additional information military promotion boards.
Source:
1) Rand Corporation. &quoute;DOPMA/ROPMA Policy Reference Tool, Promotion Boards.&quoute; Accessed on 21 February 2015. Retrieved from http://dopma-ropma.rand.org/promotion-boards.html
Suggested score:
Where compulsory conscription occurs, is there a policy of not accepting bribes for avoiding conscription? Are there appropriate procedures in place to deal with such bribery, and are they applied?
There is no compulsory conscription in the United States and the armed forces are voluntary. Obligatory draft instituted during the Vietnam War expired in 1973 and has not been reinstated since.
1) Andrew Glass, 'U.S. military draft ends, Jan. 27, 1973', Politico, 27 January 2012. http://www.politico.com/story/2012/01/us-military-draft-ends-jan-27-1973-072085, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
With regard to compulsory or voluntary conscription, is there a policy of refusing bribes to gain preferred postings in the recruitment process? Are there appropriate procedures in place to deal with such bribery, and are they applied?
There is no compulsory or voluntary conscription in the US. Obligatory draft instituted during the Vietnam War expired in 1973 and has not been reinstated since.
1) Andrew Glass, 'U.S. military draft ends, Jan. 27, 1973', Politico, 27 January 2012. http://www.politico.com/story/2012/01/us-military-draft-ends-jan-27-1973-072085, accessed October 2015.
Opinion: Agree with Comments
Comment: There is no voluntary conscription, as described in the hint.
Suggested score:
Opinion: Agree with Comments
Comment: Voluntary conscription is not practiced in the United States.
Suggested score:
Is there evidence of 'ghost soldiers', or non-existent soldiers on the payroll?
There is no evidence of ghost soldiers on DOD payrolls. The strength of the payments system - published pay rates and allowances, strict separation of chains of command and payment (see Q46), and well-defined staff responsibilities - make the risk of ghost soldiers appearing very low.
There are further personnel allocation and oversight systems that reduce the risk of ghost soldiers. The U.S. Code 10 (Financial Management section) for the Department of
Army, Navy, and Air Force establish the legal foundations for financial management and auditing, which would include monitoring and delivery processes for personnel payments. Additionally, the U.S. Army Field Manual establishes a Personnel Readiness Management system that is responsible for accurately and efficiently allocating personnel in the field, and also establishes a Personnel Accountability system for monitoring and accounting for soldiers; Army civilians; contractors authorized to accompany the force (CAAF); and joint, inter-agency, intergovernmental, and multi-national personnel when directed.
Response to Peer Reviewer 2: Comments and sources incorporated.
1) U.S. Code Title 10 › Subtitle B › Part I › Chapter 303 › § 3022. &quoute;Army, 10 U.S. Code § 3022 - Financial management.&quoute; Retrieved from Cornell University Law School, https://www.law.cornell.edu/uscode/text/10/3022
2) U.S. Code Title 10 › Subtitle D › Part I › Chapter 803 › § 8022. &quoute;Air Force, 10 U.S. Code § 8022 - Financial management.&quoute; Retrieved from Cornell University Law School, https://www.law.cornell.edu/uscode/text/10/8022
3) U.S. Code Title 10 › Subtitle C › Part I › Chapter 503 › § 5025. &quoute;Navy, 10 U.S. Code § 5025 - Financial management.&quoute; Retrieved from Cornell University Law School, https://www.law.cornell.edu/uscode/text/10/5025
4) U.S Department of the Army. April 2014. &quoute;Human Resources Support.&quoute; U.S. Army Field Manual. pp. 3-1 to 3-17. Retrieved from http://armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/fm1_0.pdf
6) DoD Instruction 7000.14-R Financial Management Regulation, Volume 7A, Appendix C, September 2015. http://comptroller.defence.gov/Portals/45/documents/fmr/current/07a/07a_appendix_c.pdf, accessed October 2015.
7) United States Army Financial Management Command (USAFMCOM) Operational Support Team, 'Introduction to Disbursing'. Updated September 2015. http://asafm.army.mil/Documents/OfficeDocuments/FinancialOps/Guidances/usafincom/ost/id.pptx, accessed October 2015.
8) U.S. Department of defence. 22 December 2014. &quoute;DoD Releases 2015 Military Pay and Compensation Rates.&quoute; Retrieved from http://www.defence.gov/Releases/Release.aspx?ReleaseID=17086
9) Office of Personnel Management , 'Pay and Leave, 2015'. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/#url=2015, accessed October 2015.
10) defence Finanse Accounting Service, 'Entitlements'. http://www.dfas.mil/civilianemployees/understandingyourcivilianpay/entitlements.html, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: The U.S. Code 10 (Financial Management section) for the Department of the Army, Navy, and Air Force establishes the legal foundations for financial management and auditing, which would include monitoring and delivery processes for personnel payments. Additionally, the U.S. Army Field Manual establishes a Personnel Readiness Management system that is responsible for accurately and efficiently allocating personnel in the field, and also establishes a Personnel Accountability system for monitoring and accounting for soldiers; Army civilians; contractors authorized to accompany the force (CAAF); and joint, inter-agency, intergovernmental, and multi-national personnel when directed. These legal frameworks, as well as existing policy and accountability systems, help to make the existence of ghost soldiers difficult.
Sources:
1) U.S. Code Title 10 › Subtitle B › Part I › Chapter 303 › § 3022. &quoute;Army, 10 U.S. Code § 3022 - Financial management.&quoute; Retrieved from Cornell University Law School, https://www.law.cornell.edu/uscode/text/10/3022
2) U.S. Code Title 10 › Subtitle D › Part I › Chapter 803 › § 8022. &quoute;Air Force, 10 U.S. Code § 8022 - Financial management.&quoute; Retrieved from Cornell University Law School, https://www.law.cornell.edu/uscode/text/10/8022
3) U.S. Code Title 10 › Subtitle C › Part I › Chapter 503 › § 5025. &quoute;Navy, 10 U.S. Code § 5025 - Financial management.&quoute; Retrieved from Cornell University Law School, https://www.law.cornell.edu/uscode/text/10/5025
4) U.S Department of the Army. April 2014. &quoute;Human Resources Support.&quoute; U.S. Army Field Manual. pp. 3-1 to 3-17. Retrieved from http://armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/fm1_0.pdf
Suggested score:
Are chains of command separate from chains of payment?
The military chain of command is separate from the DOD organization charged with financial matters. The defence Finance and Accounting Service is an independent body within DOD. It pays all DOD military and civilian personnel, retirees and annuitants, as well as major DOD contractors and vendors. The director is a civilian employee.
The Financial Management Regulation mandates that military pay should be relayed electronically, which entrenches the separation of chains of payment and command. Should that not be possible, alternative, clear and publicly available procedures apply, with clearly set staff responsibilities. (3-5)
1) defence Finance and Accounting Service (DFAS), http://www.dfas.mil/pressroom/aboutdfas.html
2) DoD Financial Management Regulation, Vol. 5, Part 1: Disbursing. http://comptroller.defence.gov/Portals/45/documents/fmr/archive/05arch/05_01.pdf, accessed October 2015.
3) defence Finance and Accounting Service, MyPay. http://www.dfas.mil/, accessed October 2015.
4) DoD Instruction 7000.14-R Financial Management Regulation, Volume 7A, Appendix C, September 2015. http://comptroller.defence.gov/Portals/45/documents/fmr/current/07a/07a_appendix_c.pdf, accessed October 2015.
5) United States Army Financial Management Command (USAFMCOM) Operational Support Team, 'Introduction to Disbursing'. Updated September 2015. http://asafm.army.mil/Documents/OfficeDocuments/FinancialOps/Guidances/usafincom/ost/id.pptx, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there a Code of Conduct for all military and civilian personnel that includes, but is not limited to, guidance with respect to bribery, gifts and hospitality, conflicts of interest, and post-separation activities?
DOD civilian employees are subject to the Ethics in Government Act, administered by OGE. Military employees are subject to military codes of conduct for each military branch. The 'Joint Ethics Regulation' covers both civilian and military personnel of the DOD. Issued in 1993, it &quoute;provides a single source of standards of ethical conduct and ethics guidance, including direction in the areas of financial and employment disclosure systems, enforcement, and training.&quoute; It prohibits bribery. It provides guidance on post-government service employment, and covers conflicts of interest, and is publicly available.
According to the Ethics Program Assistance Visit & Program Review Guide by the DOD Standards of Conduct Office (SOCO), the JER requires that oversight and implementation of programmes is managed by each Designated Agency Ethics Official (DAEO). The General Counsel, who also acts as DOD DAEO, conducts periodic ethics programme reviews on site.
The SOCO website is a repository of standards of conduct and ethical guidance (4). The DOD Guidance section of the SOCO website provides information on gifts; post government employment; political activities; and relations with non-federal entities.SOCO also provides support to the Ethics Oversight Committee, which is composed of senior ethics officials from the major DOD components. SOCO also provides briefings to incoming employees to explain the relevant rules. The information provided is comprehensive and thorough.
1) DOD Standards of Conduct Office, &quoute;DOD Guidance&quoute;, http://www.dod.mil/dodgc/defence_ethics/ Accessed September 2015
2) Standards of Conduct&quoute; Directive, DODD 5500.7. http://www.dod.mil/dodgc/defence_ethics/ethics_regulation/
3) Joint Ethics Regulation (JER), DOD 5500.7-R, http://www.dod.mil/dodgc/defence_ethics/ethics_regulation/
4) DOD Standards of Conduct Office, &quoute;About SOCO/ Contact SOCO&quoute; http://www.dod.mil/dodgc/defence_ethics/dod_soco/ Accessed September 2015
5) &quoute;Ethics Program: Assistance Visit & Program Review Guide,&quoute; Department of defence General Counsel Standards of Conduct Office (Last Modified on 8/18/2011) www.dod.mil/dodgc/defence_ethics/resource_library/audit_2011.doc
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there evidence that breaches of the Code of Conduct are effectively addressed ,and are the results of prosecutions made publicly available?
The 'Joint Ethics Regulation' covers both civilian and military personnel of the DOD. Issued in 1993, it &quoute;provides a single source of standards of ethical conduct and ethics guidance, including direction in the areas of financial and employment disclosure systems, enforcement, and training.&quoute; It prohibits bribery, provides guidance on post-government service employment, and covers conflicts of interest. It foresees criminal sanctions cases of breaches that are also criminal offences under the U.S. Code, as well as a range of administrative sanctions.
The Encyclopaedia of Ethical Failure is a compendium of ethical failures of and sanctions imposed on DOD personnel – both military and civilian. Offenses include bribery, coercion, extra-marital affairs, conflicts of interest and fraud. Penalties include fines, jail, probation, employment termination, demotion. The Encyclopaedia is publicly available.
There have been a large number of ethical violations hitting the headlines in the past few years (see sources 4-6 and 10-11 for coverage). On a case-by-case basis it seems that most violations are dealt with effectively through prosecution, though the number of violations is cause for concern. Results of prosecutions are made public--no evidence could be found to the contrary, and the regular media coverage of prosecutions' outcomes also indicates this. Because of the transparency of prosecution and the fact that cases are dealt with through prosecution effectively, the score remains, as the reviewers recommend, 4.
1) Encyclopedia of Ethical Failure (Updated July 2013) http://www.dod.mil/dodgc/defence_ethics/
2) Secretary of defence Memorandum, May 2, 2012, http://www.dod.mil/dodgc/defence_ethics/resource_library/guidance.htm
3) Deputy Secretary of defence Memorandum, December 21, 2010, http://www.dod.mil/dodgc/defence_ethics/resource_library/guidance.htm
4) Eric Tucker, Mint Press News, &quoute;Justice Department Investigation Shows Rampant Fraud, Corruption In US Military&quoute; November 17, 2014 http://www.mintpressnews.com/justice-department-investigation-shows-rampant-fraud-corruption-us-military/198985/
5) NBC News, &quoute;Panetta orders review of ethical standards amid allegations of misconduct among high-level military leaders,&quoute; November 2012, http://usnews.nbcnews.com/_news/2012/11/15/15166642-panetta-orders-review-of-ethical-standards-amid-allegations-of-misconduct-among-high-level-military-leaders?lite
6) Dan Wright, Mint Press News, &quoute;Special Investigator’s Report Details US Corruption In Afghanistan,&quoute; August 2015, http://www.mintpressnews.com/special-investigators-report-details-us-corruption-in-afghanistan/208365/
7) DOD Standards of Conduct Office, &quoute;DOD Guidance&quoute;, http://www.dod.mil/dodgc/defence_ethics/ Accessed September 2015
8) Standards of Conduct&quoute; Directive, DODD 5500.7. http://www.dod.mil/dodgc/defence_ethics/ethics_regulation/
9) Joint Ethics Regulation (JER), DOD 5500.7-R, http://www.dod.mil/dodgc/defence_ethics/ethics_regulation/
10) James Joyner. 13 February 2014. &quoute;The U.S. Military's Ethics Crisis. Higher standards and higher scrutiny.&quoute; The National Interest. Retrieved from http://nationalinterest.org/commentary/the-us-militarys-ethics-crisis-9872
11) Global Security Newswire. 07 February 2014. &quoute;Air Force Asks Missileers to Report Problems ‘From the Bottom Up’.&quoute; defence One. Retrieved from http://www.defenceone.com/management/2014/02/air-force-asks-missileers-report-problems-bottom/78500/?oref=defenceone_today_nl
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: Additional non-governmental/media articles relating to code of conduct breaches in defence (see sources). There is concern about an increased level of code of conduct breaches in recent years, but in a majority of cases these breaches tend to enter the public discourse through high profile cases or at the least become publicly reported on. There is no apparent evidence that code of conduct cases are ineffectively addressed, in terms of little to no disciplinary action being taken. No apparent public data was found to measure whether certain approaches in addressing code of conduct breaches has had an impact on reducing the number of breaches over a defined period.
Sources:
1) James Joyner. 13 February 2014. &quoute;The U.S. Military's Ethics Crisis. Higher standards and higher scrutiny.&quoute; The National Interest. Retrieved from http://nationalinterest.org/commentary/the-us-militarys-ethics-crisis-9872
2) Global Security Newswire. 07 February 2014. &quoute;Air Force Asks Missileers to Report Problems ‘From the Bottom Up’.&quoute; defence One. Retrieved from http://www.defenceone.com/management/2014/02/air-force-asks-missileers-report-problems-bottom/78500/?oref=defenceone_today_nl
Suggested score:
Does regular anti-corruption training take place for military and civilian personnel?
All senior DOD civilian and military personnel who are required to file financial disclosure forms must undergo annual ethics training. In addition, all new DOD employees receive ethics training. Supervisors may make ethics training mandatory for other personnel.
The defence Procurement and Acquisition Policy office provides ethics training to civilian and military personnel whose duties/responsibilities require them &quoute;to participate personally and substantially through decision or the exercise of significant judgement, and without substantial supervision and review," in the following areas:
•Contracting or procurement
•Administering/monitoring grants, subsidies, licenses, or other federally conferred financial/operational benefits
•Regulating/auditing any non-Federal entity
•Other activities in which the final decision or action will have a direct and substantial economic effect on the interests of any non-Federal entity
Additionally, personnel are required to complete ethics training if they must file a Confidential Financial Disclosure Report (OGE-450). Those that have to file these reports must do so because &quoute;the agency concludes that the duties and responsibilities of the employee's position require the employee to file such a report to avoid involvement in a real or apparent conflict of interest, and to carry out the purposes behind any statute, Executive order, rule or regulation applicable to or administered by the employee.&quoute;
Ethics training includes significant components related to conflicts of interest, financial disclosure, gifts and entertainment policies. Training is provided both live and online.
Response to Peer Reviewer 1: No specific anti-corruption training, separate from ethics training, could be found; there was no evidence that such training is provided to all personnel. However, the ethics training provides anti-corruption components and the score therefore remains 3.
1) Under Secretary for defence for Acquisitions, Technology and Logistics, Memorandum, "Mandatory Annual Ethics Training for the defence Acquisition Work Force," Jan. 15, 2014, http://www.acq.osd.mil/dpap/policy/policyvault/Mandatory_Annual_Ethics_Training_for_the_defence_Acquisition_Workforce_USD_ATL_signed_15_Jan_14.pdf
2) defence Procurement and Acquisition Policy Ethics page, http://www.acq.osd.mil/dpap/cpic/cp/ethics.html
3) Department of the Air Force General Counsel, http://www.safgc.hq.af.mil/organizations/gca1/ethics/financialdisclosurereports/oge-450.asp
4) Navy Annual Ethics Training, http://ethics.navy.mil/
5) Office of the Army General Counsel, http://ogc.hqda.pentagon.mil/EandF/training_EandF.aspx
6) Matteson Ellis, "The American Military’s Role in the Battle Against Corruption," March 23, 2012,
http://www.corporatecomplianceinsights.com/the-american-militarys-role-in-the-battle-against-corruption/
Opinion: Agree with Comments
Comment: The availability of ethics training and the integration of integrity on an institutional and individual level may or may not mesh, particularly since ethics training tends to be an exercise in emphasizing rule-following, rather than an exercise in discretion and decision-making.
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there a policy to make public outcomes of the prosecution of defence services personnel for corrupt activities, and is there evidence of effective prosecutions in recent years?
U.S. court documents are publicly available through the PACER system. DOD's Encyclopedia of Ethical Failure is publicly available and provides full details of selected prosecutions which are used as a training tool.
Response to Peer Reviewer 2: A Center for Public Integrity report covering corruption on US foreign operations in Afghanistan in Iraq highlights the challenge of effectively prosecuting defence personnel for corruption during wartime: &quoute;Investigators say that even now, some service members whom they strongly suspect of fraud wind up getting away without prosecution because they simply cannot muster the evidence to bring them to trial, or because they prefer to go after large cases while letting smaller ones go.&quoute;
In addition, a Huffington Post article states that &quoute;Justice Department lawyers describe as a recurring pattern of corruption that spans a broad cross section of the military.&quoute; This provides credence to peer reviewer 1's comment that prosecution, even if it is effective, is not preventing other personnel from committing corruption-related offenses. Score 3 has been selected accordingly, to reflect some shortcomings in the effectiveness of prosecutions.
1) Encyclopedia of Ethical Failure, (Updated September 2015), http://www.dod.mil/dodgc/defence_ethics/
2) The Seattle Times, "Former Seattle ATF supervisor indicted in embezzlement case." http://www.seattletimes.com/html/localnews/2022309022_atfindictment1xml.html
3) Department of Justice, Office of Public Affairs, Press Release (March 13, 2014), "Army Soldier Sentenced for Facilitating Thefts of Fuel in Afghanistan," http://www.justice.gov/opa/pr/2014/March/14-crm-267.html
4) Department of Justice, Press Release, Army Officer, Wife and Relatives Sentenced in Bribery
and Money Laundering Scheme Related to DOD Contracts in Support of Iraq War. (Dec. 2, 2009) http://www.justice.gov/atr/public/press_releases/2009/252618.htm
5) Marty Graham, "U.S. Navy petty officer pleads guilty in corruption scandal," May 20, 2014, http://www.reuters.com/article/2014/05/21/us-usa-navy-corruption-idUSBREA4K00R20140521
6) Public Access to Court Electronic Records, www.pacer.gov
7) The Center for Public Integrity, &quoute;U.S. military personnel have been convicted of $50 million worth of crimes in Iraq and Afghanistan&quoute; May 2015, http://www.publicintegrity.org/2015/05/05/17268/us-military-personnel-have-been-convicted-50-million-worth-crimes-iraq-and
8) Eric Tucker, Huffington Post, &quoute;Prosecutors Troubled By Extent Of Military Fraud&quoute; November 2014, http://www.huffingtonpost.com/2014/11/16/military-fraud_n_6167100.html
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: If interpreting effective prosecutions as those that are not suppressed or those that are resolved in a matter that is congruent with existing laws, then upon review of public cases there is no apparent evidence that past prosecutions have been ineffective in recent years.
If interpreting effectiveness as the degree to which prosecutions/enforcement may discourage illegal conduct from a prevention standpoint, then trend between 2004-2013 show that the number of &quoute;disciplinary actions&quoute; taken based wholly or in part upon violations of the standards of conduct provisions (Part 2635) has decreased overall. While the number of disciplinary actions taken based wholly or in part upon violations of the criminal conflict of interest statutes, 18 USC 203, 205, 207, 208 and 209 is currently among the lowest counts recorded within the same 9 year period.
*Disciplinary actions are defined by the U.S. Office of Government Ethics as removals, demotions, suspensions, and written reprimands or their equivalents&quoute;.
Sources:
1) U.S. Office of Government Ethics. &quoute;Conflict of Interest Prosecution Surveys.&quoute; Accessed on 23 February 2015. Retrieved from http://www.oge.gov/Topics/Enforcement/Conflict-of-Interest-Prosecution-Surveys/
2) U.S. Office of Government Ethics. 07 November 2014. &quoute;Annual Agency Questionnaire – Highlights (CY 2013).&quoute; p.5. Retrieved from http://www.oge.gov/DownloadAsset.aspx?id=8589958770
Suggested score:
Are there effective measures in place to discourage facilitation payments (which are illegal in almost all countries)?
Facilitation payments made outside the United States to non-U.S. government officials are governed by the Foreign Corrupt Practices Act which discourages but does not prohibit facilitation payments to non-U.S. government officials. Domestically, facilitation payments appear to be illegal, since the federal penal Code prohibits any gratification from being provided to an official in connection with performance of official duties.
Response to Peer Reviewer 2: Noting that facilitation payments are not illegal under the FCPA, the score has been amended to reflect shortcomings in legal regulations. Further sources have been added.
1) Comparison of the Elements of the Crimes of Bribery and Gratuities http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm02043.htm
2) Harnisch, Kevin J., Steven M. Witzel, and Joshua D. Roth. 27 February 2015. &quoute;The Disappearing Exception For Facilitating Payments: Agencies Take Narrow View Of This FCPA defence.&quoute; Retrieved from http://www.mondaq.com/unitedstates/x/224072/White+Collar+Crime+Fraud/The+Disappearing+Exception+For+Facilitating+Payments+Agencies+Take+Narrow+View+Of+This+FCPA+defence
3) U.S. Department of Justice and U.S. Department of Commerce. 2012. &quoute;FCPA DoJ Laypersons Guide.&quoute; Retrieved from http://acfcs.org/wp-content/uploads/2012/05/FCPA-DoJ-Laypersons-Guide.pdf
4) Title 18, U.S. Code § 201 - Bribery of public officials and witnesses. https://www.law.cornell.edu/uscode/text/18/201, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: Facilitation payments are not illegal in the United States, but they have received increased criticism and have been interpreted by the U.S. Department of Justice and the U.S. Security and Exchange Commission quite narrowly. The narrower interpretations have apparently acted to discourage this practice.
Source:
1) Harnisch, Kevin J., Steven M. Witzel, and Joshua D. Roth. 27 February 2015. &quoute;The Disappearing Exception For Facilitating Payments: Agencies Take Narrow View Of This FCPA defence.&quoute; Retrieved from http://www.mondaq.com/unitedstates/x/224072/White+Collar+Crime+Fraud/The+Disappearing+Exception+For+Facilitating+Payments+Agencies+Take+Narrow+View+Of+This+FCPA+defence
2) U.S. Department of Justice and U.S. Department of Commerce. 2012. &quoute;FCPA DoJ Laypersons Guide.&quoute; Retrieved from http://acfcs.org/wp-content/uploads/2012/05/FCPA-DoJ-Laypersons-Guide.pdf
Suggested score:
Do the armed forces have military doctrine addressing corruption as a strategic issue on operations?
Among strategy-level documents, both the 2014 Quadrennial defence Review and the National Military Doctrine mention corruption as a factor threatening national and international security and exacerbating other threats. The 2015 National Security Strategy squarely places corruption among issues which hinder development and endanger stability.
The recognition of corruption as a threat is also reflected in operational doctrine and field manuals. The US Field Army Manual 3-07 (Stabilisation Operations), the Joint Doctrine Publication and Manual 3-24 (Counter-Insurgency), and the Joint Doctrine Publication 3-40 (Security and Stabilisation: The Military Contribution) also include corruption as a mission-relevant issue: a threat to the legitimacy of the host government and an impediment to the commander's ability to achieve influence and work towards stabilisation goals. The manuals and doctrine publications set out provisions on addressing corruption, including mapping corrupt actors and their influence and ensuring transparency in actions (see source 7 for a summary). However, these provisions can be quite generic and they do not contain examples or detailed guidance for how to interpret and incorporate them in day-to-day mission activities.
There is evidence that the mission in Afghanistan has attempted to adopted and implemented anti-corruption principles and generals involved in the mission ordered a study on challenges and recommendations on operationalizing anti-corruption and to capture best practices for doctrine to be applied in operations the future. (8) This suggests that there is interest in institutionalising the lessons identified and applying them to future missions.
1) NATO Counter and Anti-Corruption: Theory and Practice from NATO Operations, June 23, 2013, http://www.jallc.nato.int/newsmedia/docs/jallc_report_corruption_releasable.pdf
2) 2014 Quadrennial defence Review, http://www.defence.gov/pubs/2014_Quadrennial_defence_Review.pdf
3) National Security Strategy 2015, https://www.whitehouse.gov/sites/default/files/docs/2015_national_security_strategy.pdf
4) National Military Strategy of the United States of America, http://www.jcs.mil/Portals/36/Documents/Publications/2015_National_Military_Strategy.pdf
5) Dennis E. Keller, "U.S. Military Forces and Police Assistance in Stability Operations: The Least-Worst Option to Fill the U.S. Capacity Gap" Strategic Studies Institute, Aug. 2010, http://www.strategicstudiesinstitute.army.mil/pubs/people.cfm?authorID=784
6) Department of the Army Field Manual 3-24, Insurgencies and Countering Insurgencies, http://www.fas.org/irp/doddir/army/fm3-24.pdf
7) Corruption Threats and International Missions, TI-DSP, September 2014, Current Military Doctrine, US Doctrine, pages 70-73, http://issuu.com/tidefence/docs/corruption_threats___international_/3
8) Operationalizing Counter-Anti-Corruption Study, Joint and Coalition Operational Analysis, 28 february 2014, http://www.dtic.mil/docs/citations/ADA599640
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is there training in corruption issues for commanders at all levels in order to ensure that these commanders are clear on the corruption issues they may face during deployment? If so, is there evidence that they apply this knowledge in the field?
There is evidence of substantial, if dispersed, amount of training material, particularly on contracting during operations and the associated corruption risks (5, for example). Developments which had their origins in the Afghan and Iraqi conflicts - such as the establishment of Inspector General offices for the missions and lessons identified reports - suggest that addressing corruption issues as part of the military curriculum could become a routine practice. However, at the time of writing it is unclear whether all commanders receive anti-corruption training and apply it in the field.
The Army Logistic University and the defence Acquisition University provide training to all soldiers and civilians on the Federal Acquisition Regulation (FAR) and the defence Federal Acquisition Regulation (DFAR), which define the Government’s rules for contracted business. The U.S. Army War College has created a bibliography of the resources on the Internet about corruption and anti-corruption efforts in Afghanistan. There was no evidence of corruption being part of the curriculum in the Naval Academy or West Point, but it may be incorporated into required ethics and leadership courses and talks on the issue have taken place at military education institutions. No sources confirming training of military personnel specifically on corruption prior to deployment were found, although there are suggestions that this training does exist in some form.
There is evidence that anti-corruption is taken into account in the field; equally, however, there is evidence of corrupt practices among deployed troops (although not necessarily evidence of commanders mishandling the issue).(source 9, for example) The FBI's International Contract Corruption Task Force, for example, was created to oversee US and other international contractors in Afghanistan to ensure that US funds are not misdirected; between 2004-2011, the ICCTF conducted 700 investigations, which indicates that corruption is a significant problem. US commanders of the International Security Assistance Force (ISAF) in Afghanistan, however, attempted to tackle the issue through, for example, establishing teams and task forces mapping corrupt networks undermining the legitimacy of the Afghan government (The Combined Joint Inter-Agency Task Force Nexus) and attempting to ensure that US spending and actions didn't entrench corrupt actors. This, however, only occurred in 2010 and afterwards, nine years after the mission was initiated. Beforehand, a Joint and Coalition Operational Analysis (JCOA) analysis concluded, the activities of US troops likely, even if unwittingly, made corrupt networks stronger.(8)
1) U.S. Army Sustainment Bulletin, PB 700-10-06, Vol. 42, Issue 6, Nov.-Dec. 2010, "Contract Oversight on the Battlefield," Lieutenant Colonel Peter W. Butts,
http://www.alu.army.mil/alog/issues/NovDec10/contract_oversight.html
2) House of Representatives, Committee on Oversight and Government Reform, Subcommittee on National Security, Homeland defence and Foreign Operations, "defence Department Contracting in Afghanistan: Are We Doing Enough to Combat Corruption?" September 15, 2011, http://www.gpo.gov/fdsys/pkg/CHRG-112hhrg71986/html/CHRG-112hhrg71986.htm
3) Gary Motsek, Deputy Assistant Secretary of defence (Program Support), Office of the Under Secretary of defence for Acquisition, Technology & Logistics, http://www.acq.osd.mil/log/PS/ 4) Fiscal Year 2014 Comprehensive Oversight Plan for Southwest Asia.
http://www.dodig.mil/IGInformation/archives/FY2014_COPSWA_compliant1.pdf
5) US Army War College, "Corruption/ Anti-Corruption in Afghanistan: A Selected Bibliography" http://www.carlisle.army.mil/library/bibs/corafg11.pdf
6) Mission Afghanistan -- Contract Corruption, FBI News, May 2010, https://www.fbi.gov/news/stories/2011/april/afghanistan_042611; and 'Part 3: Holding Americans Accountable in a War Zone', https://www.fbi.gov/news/stories/2011/april/afghanistan_042611, accessed October 2015.
7) U.S. Army SFC Matthew Chlosta, ISAF Public Affairs Office, &quoute; New task force stands up to combat contract corruption &quoute; no date provided, http://www.rs.nato.int/article/news/new-task-force-stands-up-to-combat-contract-corruption.html
8) Joint and Coalition Operational Analysis (JCOA), 'Operationalizing Counter/AntiCorruption Study. 28 February 2014. https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0CD0QFjAEahUKEwi175PBjb_IAhUFPhQKHSX9DfQ&url=http%3A%2F%2Fnust.edu.pk%2FINSTITUTIONS%2FSchools%2FNIPCONS%2Fnipcons-institutions%2FCIPS%2FDownload%2520Section%2FJCOA%2520CAC%2520Final%2520Report_U.pdf&usg=AFQjCNEaR5JnRqadR9s_RjhGbZhavLxV3w&bvm=bv.104819420,d.bGQ, accessed October 2015.
9) Julia Harte, 'The Fraud of War: U.S. troops in Iraq and Afghanistan have stolen tens of millions through bribery, theft, and rigged contracts', The Slate, 5 May 2015. http://www.slate.com/articles/news_and_politics/politics/2015/05/u_s_troops_have_stolen_tens_of_millions_in_iraq_and_afghanistan_center_for.html, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are trained professionals regularly deployed to monitor corruption risk in the field (whether deployed on operations or peacekeeping missions)?
Corruption monitors were deployed in the last two major operations US troops have been conducting: in Iraq and Afghanistan, between 2001-2015. They had not been part of either mission from the start, but rather were a reaction to the realisation that corruption was a significant issue undermining mission objectives. Their remit was focussed on contracting and supply chains and the goal was to ensure that US actions don't support or engender corrupt actors or practices, although there was also a task force focussed on mapping corrupt actors' impact on the legitimacy of the Afghan government (The Combined Joint Inter-Agency Task Force Nexus).
The major monitoring groups in Afghanistan included Task Force 2010, which monitored contracting in Afghanistan to ensure that the funds did not reinforce insurgent groups and to counteract fraud; the Combined Joint Task Force Shafafyiat (Transparency), whose goal was to assist the Afghan government in building legitimate and transparent institutions; and the FBI's International Contract Corruption Task Force, deployed to investigate allegations of corruption among US troops and contractors. All task forces include specialised personnel; the ICCTF incorporated staff from Department of defence Inspector General - defence Criminal Investigative Service (DCIS), Department of State, Office of Inspector General (DOS), Federal Bureau of Investigation (FBI), Special Inspector General for Iraq Reconstruction (SIGIR), U.S. Agency for International Development - Office of Inspector General (USAID), and U.S. Army Criminal Investigation Division - Major Procurement Fraud Unit (Army CID/MPFU); Air Force Office of Special Investigations (OSI), Special Inspector General for Afghanistan Reconstruction (SIGAR), and Naval Criminal Investigative Services (NCIS).
In 2008, Congress created the Special Investigator General for Afghanistan Reconstruction (SIGAR) to provide independent and objective oversight of the $109.7 billion the U.S. has provided to implement reconstruction programs in Afghanistan. SIGAR conducts audits, investigations, and inspections with the use of specialized personnel. In due course, SIGAR became very active in tracking waste and corruption in US contracts. It deployed specialized personnel for their work. The SIGAR reports (including quarterly reports to Congress) are publicly available. However, in January 2015 the US military classified SIGAR analysis of the military aid being used to build up the Afghan National Security Forces; the proffered explanation of operational security was met with scepticism. (12)
An analogous office, the Special Investigator General for Iraq Reconstruction (SIGIR) had also been created by Congress for the same purpose. The office has now been closed, but its publications - including quarterly reports to Congress, audits and analyses of lessons identified - are available on an archived website.
The presence of 'lessons learned' reports and the amount of resources that have gone into corruption monitoring suggest that these deployments might become part of US operational thinking. Congress has also passed a requirement to establish a Lead Inspector General for overseas operations lasting longer than 60 days. The mandate of the Lead IG includes 'oversight of contracts, operations, governance, humanitarian and development assistance, and intelligence'; the Lead IG personnel deploy in the field to monitor operations. A current Lead IG for Operation Inherent Resolve (i.e. anti-ISIL actions) has submitted a report on operations up to 31 March 2015. (14)
While it is still too early to assess the institutionalisation of the practice, particularly as the impetus for deploying the task forces came from a Congressional report and other Congressional actions (13), use of the Lead IG for OCO-funded operations suggests that some form of anti-corruption monitoring within the mission (particularly for contracting) is likely to continue. Furthermore, since 2008, oversight bodies have been drawing up Comprehensive Oversight Plans for Southwest Asia (for the 2015 plan, see source 16), which incorporated SIGAR activities. On the other hand, as of October 2014, the U.S. announced the withdrawal of Task Force 2010 from Afghanistan as part of the draw-down of U.S. troops and the transition from Operation Enduring Freedom to Operation Freedom Sentinel (U.S. involvement in Afghanistan post-2014). (15) While the extent, regularity and effectiveness of the Lead IG monitoring and the application of the COPSWA is not yet clear, the US is nonetheless setting the standard for ensuring robust teams of corruption monitors on major operations.
1) Kevin L. Perkins, Assistant Director, Criminal Investigative Division
Federal Bureau of Investigation, Statement Before the Commission on Wartime Contracting in Iraq and Afghanistan, https://www.fbi.gov/news/testimony/the-fbi2019s-efforts-to-combat-international-contract-corruption, May 24, 2010
2) Special Investigator General for Aghanistan Reconstruction: http://www.sigar.mil.
3) Special Investigator General for Iraq Reconstruction: http://www.sigir.mil.
4) U.S. Army Sustainment Bulletin, PB 700-10-06, Vol. 42, Issue 6, Nov.-Dec. 2010, "Contract Oversight on the Battlefield," Lieutenant Colonel Peter W. Butts,
http://www.alu.army.mil/alog/issues/NovDec10/contract_oversight.html
5) House of Representatives, Committee on Oversight and Government Reform, Subcommittee on National Security, Homeland defence and Foreign Operations, "defence Department Contracting in Afghanistan: Are We Doing Enough to Combat Corruption?" September 15, 2011, http://www.gpo.gov/fdsys/pkg/CHRG-112hhrg71986/html/CHRG-112hhrg71986.htm
http://www.dodig.mil/IGInformation/archives/FY2014_COPSWA_compliant1.pdf
6) US Army War College, "Corruption/ Anti-Corruption in Afghanistan: A Selected Bibliography" http://www.carlisle.army.mil/library/bibs/corafg11.pdf
7) Navy Times, "Congress looks at Navy contracting practices," Jan. 31, 2014. http://www.navytimes.com/article/20140131/NEWS05/301310020/Congress-looks-Navy-contracting-practices
8) Deborah C. Kidwell, Public War, Private Fight? The United States and Private Military Companies, (Combat Studies institute Press 2005).
9) Joint Contingency Acquisition Support Office, Courses for contracting officers, http://www.DLA .mil/Acquisition/Pages/JointContingencyAcquisitionSupportOffice.aspx
10) Mark Pyman, Transparency International Defence and Security Programme, &quoute;Corruption: Lessons from the international mission in Afghanistan,&quoute; February 2015. http://www.ti-defence.org/publications/dsp-pubs/326-corruption-lessons-from-afghanistan.html
11) Joint and Coalition Operational Analysis (JCOA), 'Operationalizing Counter/AntiCorruption Study. 28 February 2014. https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0CD0QFjAEahUKEwi175PBjb_IAhUFPhQKHSX9DfQ&url=http%3A%2F%2Fnust.edu.pk%2FINSTITUTIONS%2FSchools%2FNIPCONS%2Fnipcons-institutions%2FCIPS%2FDownload%2520Section%2FJCOA%2520CAC%2520Final%2520Report_U.pdf&usg=AFQjCNEaR5JnRqadR9s_RjhGbZhavLxV3w&bvm=bv.104819420,d.bGQ, accessed October 2015.
12) Mission Afghanistan -- Contract Corruption, FBI News, May 2010, https://www.fbi.gov/news/stories/2011/april/afghanistan_042611; and 'Part 3: Holding Americans Accountable in a War Zone', https://www.fbi.gov/news/stories/2011/april/afghanistan_042611, accessed October 2015.
12) New York Times Editorial Board, 'Inconvenient Truths in Afghanistan', 29 January 2015. http://www.nytimes.com/2015/01/29/opinion/inconvenient-truths-in-afghanistan.html, accessed October 2015.
13) US House of Representatives, Subcommittee on National Security and Foreign Affairs,
Committee on Oversight and Government Reform, 'Warlord, Inc. Extortion and Corruption Among the U.S. Supply Chain in Afghanistan', June 2010. http://www.cbsnews.com/htdocs/pdf/HNT_Report.pdf, accessed October 2015.
14) Lead Inspector General for Overseas Contingency Operations, 'Operation Inherent Resolve: Quarterly Report and Biannual Report to the United States Congress, 17 December 2014-31 March 2015'. https://oig.state.gov/system/files/oir_042915.pdf, accessed October 2015.
15) Maggie Ybarra, 'Afghanistan anti-corruption task force shuttered amid U.S. troop drawdown', Washington Times, 20 October 2014. http://www.washingtontimes.com/news/2014/oct/20/afghanistan-anti-corruption-task-force-shuttered-a/?page=all, accessed October 2015.
16) DOD IG, 'Fiscal Year 2015 Comprehensive Oversight Plan for Southwest Asia (COPSWA)', http://www.dodig.mil/IGInformation/archives/FY2015_COPSWA_compliant.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are there guidelines, and staff training, on addressing corruption risks in contracting whilst on deployed operations or peacekeeping missions?
Some general operational contracting matters are regulated in legislation: for example, the National Defence Authorization Act 2012 requires the DOD to revise its contracting guidance to ensure that no contracts benefit, directly or indirectly, forces opposing the US mission, and to empower commanders to terminate contracts if there is a risk of diversion of funds. Congress had also set up a bipartisan Commission on Wartime Contracting in Iraq and Afghanistan (which concluded its activities in 2011), which reviewed the weaknesses of operational contracting in U.S. military operations.
The defence Department provides numerous guidance documents on procurement, including wartime contracting. The Federal Acquisition Regulation (FAR) Part 18 and defence FAR Supplement (DFARS) Part 218 set out the regulations and guidance for operational contracting. (12-14) These are quite detailed procedures, recently accompanied by policies specific to particular overseas operations.
However, a 2015 report from the DOD Inspector General states that there are still shortcomings in policies pertaining to operational contracting, including guidance that is unclear or inconsistent. The report also calls for improvement of personnel training, indicating that this might not be comprehensive. (10) No further evidence re. training could be found.
Score 3 was selected to reflect shortcomings in existing guidance and uncertain training levels.
Response to Peer Reviewer 2: The cases quoted do indeed illustrate corruption issues in Navy contracting, however, they do not apply directly to operational/contingency contracting.
1) defence One, Stephanie Gaskell, "Hagel Says Ethical Scandals Are a ‘Growing Problem’ in the Military," Feb. 5, 2014, http://www.defenceone.com/management/2014/02/hagel-says-ethical-scandals-are-growing-problem-military/78317/
2) Report to Congress on Contracting Fraud, Oct. 2011, http://www.sanders.senate.gov/imo/media/doc/102011%20-%20DOD%20Fraud%20Report.pdf
3) defence Contract Management Agency, http://guidebook.dcma.mil/81/index.cfm
4) 32 CFR §516, Appendix D.
5) Whitlock, Craig. 19 October 2013. &quoute;Senior officer, NCIS agent are among those arrested in Navy bribery scandal.&quoute; Washington Post. Retrieved from http://www.washingtonpost.com/world/national-security/senior-officer-ncis-agent-are-among-those-arrested-in-navy-bribery-scandal/2013/10/19/e9a1e9b6-3753-11e3-bda2-e637e3241dc8_story.html
6) Whittlock, Craig, &quoute;Retired Navy officer pleads guilty in bribery scandal,&quoute; Washington Post, July 3, 2014, https://www.washingtonpost.com/world/national-security/retired-navy-officer-pleads-guilty-in-bribery-scandal/2014/07/03/e0fe3766-02f4-11e4-8572-4b1b969b6322_story.html
7) Kleinman, Avery. 05 February 2014. &quoute;Rep. Issa Opens Investigation into Navy Fraud.&quoute; Project on Government Oversight. Retrieved from http://www.pogo.org/blog/2014/02/rep-issa-opens-investigation-into-navy-fraud.html
8) U.S. Department of defence, defence Procurement and Acquisition Policy &quoute;defence Contingency Contracting Handbook, Ethics.&quoute; Accessed on 22 February 2015. Retrieved from http://www.acq.osd.mil/dpap/ccap/cc/jcchb/HTML/Topical/ethics.html#guide
9) DOD Directive 7050.5, Coordination of Remedies for Fraud and Corruption Related to Procurement Activities, http://www.law.cornell.edu/cfr/text/32/part-516/appendix-D
10) DOD IG, 'Military Construction in a Contingency Environment: Summary of Weaknesses Identified in Reports Issued From January 1, 2008, Through March 31, 2014', 9 January 2015. http://www.dodig.mil/pubs/documents/DODIG-2015-059.pdf, accessed October 2015.
11) National defence Authorization Act, Fiscal Year 2012, Section 841. http://www.treasury.gov/resource-center/sanctions/Programs/Documents/ndaa_publaw.pdf, accessed October 2015.
12) defence Procurement and Acquisition Policy, 'Contingency Contracting Policy'. http://www.acq.osd.mil/dpap/pacc/cc/policy.html, accessed October 2015.
13) 'defence Federal Acquisition Regulation Supplement Part 218—Emergency Acquisitions', last revised 25 July 2015. http://www.acq.osd.mil/dpap/dars/dfars/pdf/r20131118/toc218.pdf, accessed October 2015.
14) 'Federal Acquisition Regulations, Part 18: Emergency Acquisition.' https://www.acquisition.gov/sites/default/files/current/far/html/FARTOCP18.html, accessed October 2015.
15) Commission on Wartime Contracting in Iraq and Afghanistan, homepage. http://cybercemetery.unt.edu/archive/cwc/20110929213815/http://www.wartimecontracting.gov/, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: See sources for non-government reporting on country assessor's referenced cases.
The defence Procurement and Acquisition Policy for DoD provides numerous guides and exercises for the warfighter relating to ethics (see source).
Sources:
1) Whitlock, Craig. 19 October 2013. &quoute;Senior officer, NCIS agent are among those arrested in Navy bribery scandal.&quoute; Washington Post. Retrieved from http://www.washingtonpost.com/world/national-security/senior-officer-ncis-agent-are-among-those-arrested-in-navy-bribery-scandal/2013/10/19/e9a1e9b6-3753-11e3-bda2-e637e3241dc8_story.html
2) Kleinman, Avery. 05 February 2014. &quoute;Rep. Issa Opens Investigation into Navy Fraud.&quoute; Project on Government Oversight. Retrieved from http://www.pogo.org/blog/2014/02/rep-issa-opens-investigation-into-navy-fraud.html
3) U.S. Department of defence, defence Procurement and Acquisition Policy &quoute;defence Contingency Contracting Handbook, Ethics.&quoute; Accessed on 22 February 2015. Retrieved from http://www.acq.osd.mil/dpap/ccap/cc/jcchb/HTML/Topical/ethics.html#guide
Suggested score:
Private Military Contractors (PMCs) usually refer to companies that provide operational staff to military environments. They may also be known as security contractors or private security contractors, and refer to themselves as private military corporations, private military firms, private security providers, or military service providers.
The United States is the world's largest customer of private military and security services and there is no statute prohibiting their use in operational environments. Extensive use of PMCs in Iraq and Afghanistan generated debate and attempts to regulate them. The annual National defence Appropriations Acts and the Federal Acquisition Regulations are two of the most important mechanisms regulating the use of PMCs in theatre. DOD's Instruction 3020.41 also provides some regulations regarding in-theatre support staff, and the 'Private Security Contractors (PSCs) Operating in Contingency Operations' directive deals, to some extent, with crimes committed by PSCs, obliging military staff to report them. Congress, federal agencies and ad-hoc commissions (including the Government Accountability Office, SIGAR, congressional committees, and the defence Contract Audit Agency) are all involved in PMC oversight, creating a complex web of overlapping competences. (1, 7, 10-13)
The United States is signatory to the Montreux Document and the International Code of Conduct for Private Security Service Providers (ICoC), both of which lay out good practices and guidelines when it comes to employing PMCs. The Document stipulates that PMCs should be subject to the criminal laws of the country contracting them and the country on whose territory they are registered and operate. It stipulates that when hiring a PMC, the state employer should ensure that the PMC has not been involved in organised crime, bribery, and corruption, and that its staff are properly trained, which includes anti-corruption training. The Document further encourages employing states to ensure that PMCs have policies against corruption. (14) However, the provisions of the Document are not legally binding, although the International Code of Conduct Association assesses PMCs' suitability to join the Code and audits their performance. (15) In October 2014, 4 former PMC guards were sentenced to prison terms for their role in a 2007 shooting in Baghdad’s Nisour Square which left 17 Iraqi citizens dead: the US court found that the deaths were the result of a criminal act rather than battlefield casualties. (18) While this case suggests that controls and sanctions are being applied, it is still unclear to what extent this is effective and systematic, particularly as standards are still being formulated. (16) A 2013 review document stipulates that while the DOD contractual provisions do focus on corruption and fraud issues, an effective oversight system is not in place yet. (17)
1) CRS, "DOD’s Use of Contractors to Support Military Operations: Background, Analysis, and Issues for Congress," Moshe Schwartz and Jennifer Church, May 17, 2013, http://psm.du.edu/national_regulation/united_states/research_oversight_bodies/crs.html
2) GAO, GAO-13-470, "Human Capital: Additional Steps Needed to Help Determine the Right Size and Composition of DOD’s Total Workforce," May 2013, http://www.gao.gov/assets/660/654879.pdf
3) DOD, Ethics of Contractors in the Workplace and on Deployment, www.dod.mil/dodgc/defence_ethics/resource_library/deskbook/contractors_in_federal_workplace.pdf
4) Jose L. Gomez del Prado, "The privatization of War: Mercenaries, Private Military and Security Companies (PMSC),http://www.globalresearch.ca/the-privatization-of-war-mercenaries-private-military-and-security-companies-pmsc/21826
5) Private Military, http://www.privatemilitary.org/about.html
6) Ann Hagedorn, The Invisible Soldiers - How America Outsourced our Security, 2014, New York, NY, Simon & Schuster, available at http://www.amazon.com/The-Invisible-Soldiers-Outsourced-Security/dp/1491535210
7) Private Security Monitor Center, University of Denver, US regulatory system governing use of PMFs, http://psm.du.edu/national_regulation/united_states/index.html
8) http://www.thedailybeast.com/articles/2014/04/24/the-real-winner-of-the-afghan-war-is-this-shady-military-contractor.html
9) Amnesty International USA, &quoute;Existing National Laws for Accountability and Prosecution - Private Military and Security Companies&quoute; (no date, accessed September 2015) http://www.amnestyusa.org/our-work/issues/business-and-human-rights/private-military-and-security-companies/existing-national-laws-for-accountability-and-
10) 'defence Federal Acquisition Regulation Supplement Part 218—Emergency Acquisitions', last revised 25 July 2015. http://www.acq.osd.mil/dpap/dars/dfars/pdf/r20131118/toc218.pdf, accessed October 2015.
11) 'Federal Acquisition Regulations, Part 18: Emergency Acquisition.' https://www.acquisition.gov/sites/default/files/current/far/html/FARTOCP18.html, accessed October 2015.
12) Department of defence Instruction 3020.41, 'Operational Contract Support', 20 December 2011. http://www.dtic.mil/whs/directives/corres/pdf/302041p.pdf, accessed October 2015.
13) DOD, 'Private Security Contractors (PSCs) Operating in Contingency Operations, Combat Operations or Other Significant Military Operations', 2009. http://psm.du.edu/media/documents/us_regulations/dod/directives_and_instructions/federal_register/us_dod_32_cfr_159.pdf, accessed October 2015.
14) 'Letter dated 2 October 2008 from the Permanent Representative of Switzerland to the United Nations addressed to the Secretary-General' (The Montreux Document), 6 October 2008. https://www.eda.admin.ch/content/dam/eda/en/documents/topics/Montreux-document-4_en.pdf, accessed October 2015.
15) Federal Department of Foreign Affairs, 'Regulating Private Military and Security Companies. The Montreux Document and The International Code of Conduct', 2015. https://www.eda.admin.ch/content/dam/eda/en/documents/topics/aussenpolitik/voelkerrecht/20150506-regulating-private-military-security-companies_EN.pdf, accessed October 2015.
16) International Code of Conduct Association (ICoCA) Board Meeting (Call) - Minutes. 27 July 2015. http://icoca.ch/sites/default/files/resources/Minutes%2027%20July%202015%20Board%20Meeting.pdf, accessed October 2015.
17) 'Montreux Five Years On: An analysis of State efforts to implement Montreux Document legal obligations and good practices', The Human Rights in Business Program, American University 2013. http://ihrib.org/wp-content/uploads/2013/12/MontreuxFv31.pdf, accessed October 2015.
18) Matt Apuzzo, 'Blackwater Guards Found Guilty in 2007 Iraq Killings', New York Times, 22 October 2014. http://www.nytimes.com/2014/10/23/us/blackwater-verdict.html?_r=0, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Does the country have legislation covering defence and security procurement and are there any items exempt from these laws?
There is extensive legislation and regulations governing defence and security procurement. Laws governing military procurement are collected in 10 U.S. Code, Chapter 137. Unified regulations are contained within the Federal Acquisition Regulation (FAR) and its defence add-on, the defence Federal Acquisition Regulation Supplement (DFARS). A number of DOD Instructions flesh out and implement the legal acts. Legal obligations are also imposed by Congress in some of the annual National defence Authorization Acts, and DOD components (including services) often have their own regulations and supplements to the general regulations (see 1).
As far as can be determined, no items are exempt from these laws (section 1.402 of the FAR allows defence - related exemptions, but these are governed by DFARS), although the laws and regulations provide for different degrees of competition and openness in the procedures (items with national security significance can be single-sourced, but a procedure for the exemption needs to be followed). The defence Contract Audit Agency scrutinises DOD contracts, as does the Government Accountability Office, the DOD Inspector General and Congressional committees, although results of some of the scrutiny may not be publicly available).
The FAR and DOD instructions contain anti-corruption provisions. FAR Section 3.10 contains the Contractor Code of Business Ethics and Conduct, which makes it obligatory for contractors to adopt compliance programmes and report corruption-related wrongdoing; Section 3.11 deals with Conflict of Interest issues. DOD Instruction 7050.05 obliges the Department and its components to be cognizant of any corruption-related issues affecting procurement processes and to pursue available remedies. The defence Criminal Investigative Service lists Procurement Fraud and Public Corruption as one of the five priorities it is empowered to enforce.
1) DOD, Doing Business with DOD, http://www.defence.gov/landing/contract_resources.aspxn
2) defence Procurement and Acquisition Policy, defence Acquisition Regulations System,
http://www.acq.osd.mil/dpap/dars/index.html
3) defence Acquisition Guidebook, Sept. 16, 2013, http://at.dod.mil/docs/defenceAcquisitionGuidebook.pdf
4) DOD Directive 5000.01, http://www.dtic.mil/whs/directives/corres/pdf/500001p.pdf
5) DOD Instruction 5000.02, http://www.dtic.mil/whs/directives/corres/pdf/500002_interim.pdf
6) Questions and Answers Regarding the DOD Procurement System, http://www.izvoznookno.si/Dokumenti/QAUSDODProcSystem-200811.pdf
7) Navy procurement, www.navsea.navy.mil/nswc/crane/working/contracting/pages/Procurement%20Information.aspx
8) Acquisitions not subject to competitive bidding, http://www.acquisition.gov/far/html/Subpart%206_3.html
9) US Government, 'Federal Acquisition Regulation' (FAR; FAC 2005-84/10-05-2015), available at https://www.acquisition.gov/?q=browsefar. Accessed October 2015.
10) Department of defence, 'defence Federal Acquisition Regulation Supplement (DFARS) and Procedures, Guidance, and Information (PGI)', last updated 1 October 2015. http://www.acq.osd.mil/dpap/dars/dfarspgi/current/, accessed October 2015.
11) 10 U.S. Code Chapter 137, 'General Military Law; Procurement Generally'. https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-IV/chapter-137, accessed October 2015.
12) DOD Instruction 7050.05, 'Coordination of Remedies for Fraud and Corruption Related to Procurement
Activities', 12 May 2014. http://www.dtic.mil/whs/directives/corres/pdf/705005p.pdf, accessed October 2015.
13) defence Contract Audit Agency, 'Report to Congress on FY 2014 Activities', 25 March 2015. http://www.dcaa.mil/DCAA_FY2014_Report_to_Congress.pdf, accessed October 2015.
14) Office of General Counsel, U.S. Department of Commerce. Transparency and Anti-Bribery Initiatives.&quoute; Accessed on 22 February 2015. Retrieved from http://www.commerce.gov/os/ogc/transparency-and-anti-bribery-initiatives
15) U.S. Department of defence Inspector General. &quoute;defence Criminal Investigative Service.&quoute; Accessed on 22 February 2015. Retrieved from http://www.dodig.mil/INV_DCIS/index.cfm
Opinion: Agree with Comments
Comment: Again, the existence of legislation and regulations related to procurement is clear; the central question is about the contracting culture, the relationships that characterize that culture, and their links to the larger political environment.
Suggested score:
Opinion: Agree with Comments
Comment: The United States has signed and ratified international conventions devoted to combating bribery and corruption, which apply to procurement activities. Additionally, the defence Criminal Investigative Service lists Procurement Fraud and Public Corruption as one of the five priorities it is empowered to enforce.
Sources:
1) Office of General Counsel, U.S. Department of Commerce. Transparency and Anti-Bribery Initiatives.&quoute; Accessed on 22 February 2015. Retrieved from http://www.commerce.gov/os/ogc/transparency-and-anti-bribery-initiatives
2) International Trade Administration, U.S. Department of Commerce. &quoute;Good Governance Program.&quoute; Accessed on 22 February 2015. Retrieved from http://www.ita.doc.gov/goodgovernance/
3) U.S. Department of defence Inspector General. &quoute;defence Criminal Investigative Service.&quoute; Accessed on 22 February 2015. Retrieved from http://www.dodig.mil/INV_DCIS/index.cfm
4) U.S. General Services Administration Inspector General. 28 January 2013. &quoute;Ashley Ann Lamere Sentenced in U.S. District Court.&quoute; Retrieved from http://www.gsaig.gov/index.cfm/news/ashley-ann-lamere-sentenced-in-us-district-court/
Suggested score:
Is the defence procurement cycle process, from assessment of needs, through contract implementation and sign-off, all the way to asset disposal, disclosed to the public?
10 U.S. Code part IV contains extensive regulations on the DOD procurement cycle process, including needs assessment, contract negotiation and implementation, and asset disposal. FAR and DFARS also address the procurement cycle, including contract implementation and asset disposal. There are also separate regulations for major defence acquisitions processes. DOD instructions provide implementation frameworks for the process. For example DOD Directive 5000.01 lays out the policies and principles that guide all defence acquisition programs; DOD Instruction (DODI) 5000.02. establishes a simplified and flexible management system for translating joint capability needs and technological opportunities into acquisition programs.
The provisions made public are detailed and comprehensive.
1) DOD, Doing Business with DOD, http://www.defence.gov/landing/contract_resources.aspxn
2) defence Procurement and Acquisition Policy, defence Acquisition Regulations System,
http://www.acq.osd.mil/dpap/dars/index.html
3) defence Acquisition Guidebook, Sept. 16, 2013, http://at.dod.mil/docs/defenceAcquisitionGuidebook.pdf
4) DOD Directive 5000.01, http://www.dtic.mil/whs/directives/corres/pdf/500001p.pdf
5) DOD Instruction 5000.02, http://www.dtic.mil/whs/directives/corres/pdf/500002_interim.pdf
6) Questions and Answers Regarding the DOD Procurement System, http://www.izvoznookno.si/Dokumenti/QAUSDODProcSystem-200811.pdf
7) Navy procurement, www.navsea.navy.mil/nswc/crane/working/contracting/pages/Procurement%20Information.aspx
8) Acquisitions not subject to competitive bidding, http://www.acquisition.gov/far/html/Subpart%206_3.html
9) GAO, "defence Acquisitions: Where Should Reform Aim Next?" GAO-14-145T, Oct 29, 2013, http://www.gao.gov/products/GAO-14-145T
10) defence Acquisition Research Journals, January 2012, Vol. 19 No. 1: 099 — 120 "The More Things Change, Acquisition Reform Remains the Same," Col Peter K. Eide, USAF, and and Col Charles D. Allen, USA (Ret.),
http://www.carlisle.army.mil/USAWC/DCLM/The%20More%20Things%20Change%20Acq%20Reform%20Remains%20the%20Same%20(Eide,%20Allen,%20DARJ%2061).pdf
11) Cato Institute, Ivan Eland, "Hike Military Funding? Lining the Pockets of the defence Bureaucracy" http://www.cato.org/publications/commentary/hike-military-funding-lining-pockets-defence-bureaucracy
12) The Navy Department Library, "Navy CVN-21 Aircraft Carrier Program: Background and Issues for Congress" http://www.history.navy.mil/library/online/navycvn21.htm.
13) The Economist, "Don’t Save the Warthog," June 14, 2014, http://www.economist.com/news/united-states/21604204-why-plane-easy-shoot-down-hard-scrap-dont-save-warthog
14) US Government, 'Federal Acquisition Regulation' (FAR; FAC 2005-84/10-05-2015), available at https://www.acquisition.gov/?q=browsefar. Accessed October 2015.
15) Department of defence, 'defence Federal Acquisition Regulation Supplement (DFARS) and Procedures, Guidance, and Information (PGI)', last updated 1 October 2015. http://www.acq.osd.mil/dpap/dars/dfarspgi/current/, accessed October 2015.
16) 10 U.S. Code Part IV, 'Service, Supply and Procurement'. https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-IV, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: Although true that there are interests within Congress that value the benefits of manufacturing the A-10, the other part of the controversy over the A-10 program has been the pressure from the DoD to retire the A-10 platform in order to justify the development and purchase of the F-35 platforms. Under this viewpoint the criticism would be that interests within the bureaucracy are unduly and irresponsibly pushing for disposal of a platform that actually performs well in the field and requires less maintenance over its life cycle.
Sources:
1) Smithberger, Mandy. 09 February 2015. &quoute;Air Force Headquarters Declassified and Released Incomplete Data to Further A-10 Smear Campaign.&quoute; Project on Government Oversight. Retrieved from http://www.pogo.org/our-work/articles/2015/af-hq-declassified-and-released-incomplete-data.html
Suggested score:
Are defence procurement oversight mechanisms in place and are these oversight mechanisms active and transparent?
The following entities provide oversight of DOD procurement on a regular basis, carrying out audits, producing reports and making recommendations:
•DOD Defence Contract Audit Agency (DCAA)
•DOD Inspector General
•GAO
•Relevant Congressional committees (including a specific subcommittee in the House Armed service Committee dedicated to oversight).
The DCAA provides audits both after the contract is agreed and beforehand; it also has the competences to provide independent advice on pricing and conditions.
Except for reports classified for national security reasons, all are available publicly. In the case of most of the reports, DOD is required to respond to the recommendations and describe how they will be implemented.
The GAO, which reports to Congress, is mostly seen as an effective, independent expert institution. Congressional committees have access to information and analysis produced by the Congressional Research Service (CRS), and independent high-quality research provider. However, the quality and independence of Congressional oversight has been questioned, given the significant funds spent by the defence industry on campaign contributions and lobbying. Researchers have suggested that current structures disincentivise effective oversight.
Eric Boehm states that two factors prevent members of Congress, particularly on the Appropriations Committees, from cutting wasteful spending that could affect defence companies: fear of looking 'soft on defence' and fear of loss of jobs due to contracts being cancelled, which might result in political consequences. Open Secrets has found that the defence sector contributed more than $27 million to political candidates and committees during the 2012 campaign cycle (16.4 millionfor Republican candidates and $11 million for Democrats. Compounding the issue is defence lobbying, with $128,338,939 spent in 2015 (although is is lower than 2014), geared toward securing contracts and influencing the defence budget, often through contributions to the campaign finance of members of appropriations committees. For example, Rep. Buck McKeon (R-Calif.), chairman of the House Armed Services Committee in 2013, has received more than $1.4 million from the defence sector since he first ran for the House in 1992, including $567,000 during the 2012 campaign cycle. (25) As James Fallows has suggested in The Atlantic, defence companies attempt to spread military projects throughout congressional districts to 'maximiz[e] the number of members of Congress who feel that if they cut off funding, they’d be hurting themselves.'
One example of this potential for undue influence is Lockheed Martin, a company with over 18,000 contracts with the government. Since 1989, it has provided nearly 30m in campaign finance, and spent more than 189m USD on lobbying, according to the Sunlight Foundation. Such spending is likely to influence members of Congress charged with overseeing defence to be more favorable to defence industry.
Though Congressional oversight mechanisms are in place in law, the fact that some members of Congress lack incentives to conduct effective oversight warrants a score of 3.
1) U.S. House of Representatives Committee on Armed Services 113th Congress Oversight Plan. http://armedservices.house.gov/index.cfm/files/serve?File_id=3ede37c2-2fb7-4fb2-a064-e88b24c938f
2) House Committee on Armed Services, http://armedservices.house.gov/
3) House Committee on Appropriations, http://appropriations.house.gov/
4) Subcommittee on defence, http://appropriations.house.gov/subcommittees/subcommittee/?IssueID=34795
5) House Permanent Select Committee on Intelligence, http://intelligence.house.gov/
6) House Committee on Homeland Security, http://homeland.house.gov/
7) Senate Committee on Armed Services, http://www.armed-services.senate.gov/
8) Senate Committee on Appropriations, http://www.appropriations.senate.gov/
9) Subcommittee on defence, http://www.appropriations.senate.gov/subcommittee/defence
10) Senate Committee on Homeland Security & Governmental Affairs, http://www.hsgac.senate.gov/
11) Senate Select Committee on Intelligence, http://www.intelligence.senate.gov/
12) Washington Post. "Armed Services committees reject White House blueprint for military budget cuts," http://www.washingtonpost.com/world/national-security/armed-services-committees-reject-white-house-blueprint-for-military-budget-cuts/2014/05/24/c4b40024-e2bd-11e3-810f-764fe508b82d_story.html
13) defence News. "House OKs $495.8B for 2015 Base Budget; Orders army structure Commission," http://www.defencenews.com/article/20140522/CONGRESSWATCH/305220044/House-OKs-495-8B-2015-Base-Budget-Orders-Army-Structure-Commission
14) Arizona Daily Star. "Key House Panel OKs plan to save A-10 for at least a year," http://azstarnet.com/business/local/key-house-panel-oks-plan-to-save-a--for/article_32ca2219-a06f-54c3-b82a-e564cfae8f3a.html
15) DOD IG http://www.dodig.mil/pubs/index.cfm
16) GAO, http://www.gao.gov/highrisk/overview
17) CRS, available through Federation of American Scientists website, https://www.fas.org/sgp/crs/index.html
18) Navy Times, "Congress looks at Navy Contracting Practices," Jan. 31, 2014, http://www.navytimes.com/article/20140131/NEWS05/301310020/Congress-looks-Navy-contracting-practices
19) House Armed Service Subcommittee on Oversight -- Oversight Plan for 113th Congress, http://docs.house.gov/meetings/AS/AS00/CPRT-113-AS00-D001.pdf
20) Alex Ward, War on the Rocks, &quoute;Don't believe the defence acquisition reform hype,&quoute; January 2015 http://warontherocks.com/2015/01/dont-believe-the-defence-acquisition-reform-hype/
21) Sandra I. Erwin, National Defence Magazine, &quoute;Acquisition Reform: It’s Mostly Up to Congress&quoute; April 2014, http://www.nationaldefencemagazine.org/blog/Lists/Posts/Post.aspx?ID=1693
22) James Fallows, the Atlantic, &quoute;the Tragedy of the American Military&quoute;, January 2015 http://www.theatlantic.com/magazine/archive/2015/01/the-tragedy-of-the-american-military/383516/
23) Project on Government Oversight, Straus Military Reform Project, 'Refusing to Misunderstand the Defence Acquisition Problem,' October 2014 http://www.pogo.org/our-work/straus-military-reform-project/military-reform/2014/refusing-to-misunderstand-the-defence-acquisition-problem.html
24) The Sunlight Foundation, Influence Explorer, Lockheed Martin: http://influenceexplorer.com/organization/lockheed-martin/5516ba695ba741ab9f6ff35627621297?cycle=-1#contributions_section (accessed September 2015)
25) Open Secrets, &quoute;defence,&quoute; http://www.opensecrets.org/industries/indus.php?Ind=D (accessed September 2015)
26) William Hartung, Center for International Policy, &quoute;Tools of Influence: The Arms Lobby and the Super Committee,&quoute; October 2011, https://www.ciponline.org/research/html/tools-of-influence-arms-lobby-super-committee1
27) Eric Boehm, Watchdog.Org, &quoute;defence contractors spend millions lobbying Congress, get billions in new budget&quoute; January 2014, http://watchdog.org/124909/defence-spending/
28) Defence Contract Audit Agency (DCAA), http://www.dcaa.mil/, accessed October 2015.
Opinion: Agree with Comments
Comment: Greater attention is needed on the translation of oversight mechanisms into outcomes.
Suggested score:
Opinion: Agree with Comments
Comment: Reporting from the GAO and CRS has historically been of high quality and generally seen by the nation's two parties as independent and balanced. Civil society oversight bodies worthy of mention are the Project on Government Oversight (POGO) and the Center for Effective Government (CEG), formally OMB Watch. These civil society organizations have a, perhaps, slightly higher reputation for independence in their work. The level of real and perceived independence, as well as effectiveness, within congressional oversight committees can vary depending on a number of political factors.
Sources:
1) Project on Government Oversight &quoute;Annual Reports.&quoute; Accessed on 22 February 2015. Retrieved from http://www.pogo.org/about/annual-reports/
2) Center for Effective Government. &quoute;Reports.&quoute; Accessed on 22 February 2015. Retrieved from http://www.foreffectivegov.org/reports
Suggested score:
Are actual and potential defence purchases made public?
DOD posts all of its spending and acquisitions on the defence Procurement and Acquisition Policy website. Additionally, the individual branches of the military also publish their individual acquisition reports detailing various acquisitions made by fiscal quarter.
Forward acquisition plans (within a four-year time horizon) are published in the Quadrennial defence Reviews, although the level of detail provided and the timeline for purchases tend to be quite varied. For example, the 2014 QDR mentions the procurement of 'advanced air-to-surface missiles', but doesn't provide more information; when it comes to the Navy, however, it specifies that procurement funding for amphibious ships will start for the LX(R) class in FY2019. A much more detailed breakdown, including specific purchases, is available within the annual National defence Authorization Acts and other appropriation legislation.
There does not seem to be policy on comprehensive audit verification with regard to the plans, which warrants score 3.
1) defence Procurement and Acquisition Policy, http://www.acq.osd.mil/dpap/
2) Federal News, "Buying commercial in DOD: 15 years after acquisition reform," by Jared Serbu, May 21, 2012, http://www.federalnewsradio.com/474/2872216/Buying-commercial-in-DOD-15-years-after-acquisition-reform
3) U.S. Air Force Small Business, Acquisition Forecast-Long Range Acquisition Estimates, http://airforcesmallbiz.org/opportunities/
4) U. S. Army Corps of Engineers, Military Construction forecast for March 2014, http://www.usace.army.mil/BusinessWithUs/MILCONForecast.aspx
5) Forecast of Contracting Opportunities for the U.S. General Services Administration, http://www.gsa.gov/portal/content/101163?utm_source=SBU&utm_medium=print-radio&utm_term=smbusforecast&utm_campaign=shortcuts
6) Assistant Secretary of the Navy, Research, Development and Acquisition, http://www.secnav.navy.mil/rda/Pages/default.aspx
7) United States Army Medical Research Acquisition Activity USAMRAA, http://www.usamraa.army.mil/index.cfm?ID=60&Type=3
8) example of publication of contract awards, http://www.defence.gov/contracts/contract.aspx?contractid+5073
9) US DOD, 'Quadrennial defence Review 2014.' http://archive.defence.gov/pubs/2014_Quadrennial_defence_Review.pdf, accessed October 2015.
10) House of Representatives Committee on Appropriations, 'Department of defence Appropriations Bill 2013. Report.' 25 May 2015. http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt493/pdf/CRPT-112hrpt493.pdf, accessed October 2015.
11) National defence Authorization Act for FY 2015, 25 May 2015. http://docs.house.gov/billsthisweek/20150511/Rules_Print_HR1735_xml.pdf, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
What procedures and standards are companies required to have - such as compliance programmes and business conduct programmes - in order to be able to bid for work for the Ministry of Defence or armed forces?
The Federal Acquisition Regulation sets out policies for contractors who wish to sell to the U.S. Government, including DOD, and imposes contractual requirements for large businesses and contracts above a certain threshold. The FAR formally requires that the main contractor adopts a comprehensive compliance and ethics programme, together with training for all employees and subcontractors, within 90 days of the contract award. It also stipulates that these provisions apply equally to subcontractors and agents of the main contractor, provided that the subcontract exceeds the value of $ 5 million. The main contractor is also obliged to disclose any ethical and compliance violations committed by itself or by a subcontractor. (6) These disclosures are to be made to the manager of the Contractor Disclosure Program at the DOD Inspector General's office. (7) Companies are subject to debarment for failure to comply.
The FAR also requires certain contractual provisions, depending on the dollar value of the contract:
•prohibiting kickback (applies to all contracts exceeding the simplified contract threshold)
•providing for Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity ( 52.203-8; applies to all contracts except commercial purchases)
•allowing for Price or Fee Adjustment for Illegal or Improper Activity (52.203-10 )
•requiring certification and Disclosure Regarding Payments to Influence Certain Federal Transactions. (52.203-11, applies to contracts above $100,000)
•requiring Contractor Code of Business Ethics and Conduct 52.203-13 (applies to contracts above $5 million)
•requiring display of Hotline Poster(s) (52.203-14, applies to contracts above $5 million)
•requiring whistleblower protections Under the American Recovery and Reinvestment Act of 2009 (52.203-15, applies to all contracts above the simplified contract threshold).
The major limitation here is the companies are not required to have compliance programmes in place before they bid for defence work, but rather after the contracts are awarded. The requirement also does not apply to all contractors, although above a certain threshold, it applies to the contractor's supply chain. Score 3 has therefore been selected.
1) FAR (FAR), Subpart 3.10—Contractor Code of Business Ethics and Conduct, http://www.acquisition.gov/far/html/Subpart%203_10.html
2) FAR Subpart 52.2—Text of Provisions and Clauses, http://www.acquisition.gov/far/html/52_200_206.html
3) Bradley Wine, &quoute;How FAR And DFARS Whistleblower Protections Have Changed,&quoute; Nov. 21, 2013, http://www.law360.com/articles/490081/how-far-and-dfars-whistleblower-protections-have-changed
4) Contract Management (2008), &quoute;The New FAR Codes of Conduct and Compliance Programs Provisions,&quoute; http://www.ncmahq.org/files/articles/cm0708_18-29.pdf
5) 48 CFR 52.203-13 - Contractor Code of Business Ethics and Conduct, April 2010. https://www.law.cornell.edu/cfr/text/48/52.203-13, accessed October 2015.
6) DOD Inspector General, Contractor Disclosure Program. Contractor Disclosure Program, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are procurement requirements derived from an open, well-audited national defence and security strategy?
The Quadrennial defence Review, DOD plans and service-specific planning guidance are all elements of a national strategy which puts procurement in the context of an analysis of threats and opportunities. These documents are publicly available and widely discussed. The defence Acquisition Guidebook states that the FAR requires acquisition planning for all Federal procurement, and the DFAR Supplement requires program managers to prepare written Acquisition Plans for most acquisitions exceeding $10 million.
Congress exercises oversight through the budgetary process and DOD strategy is analysed by the Congressional Research Service, although the latter does not constitute a binding audit. The GAO and the DOD IG are among the many different congressionally supervised offices to promote accountability within the defence Department; however, it is unclear whether they specifically focus on the chain linking defence strategy with individual procurement.
In some cases, moreover, funding has been allocated based not on strategic interest (as the programmes have been seen as unnecessary), but rather on factors related to job creation in congressional districts. In cases such as these, the primary purpose of the defence budget - serving the strategic needs of the country's defence forces - can be compromised. (12) With the National Military Strategy providing no prioritisation that could drive procurement plans, peacetime procurement can be influenced by inertia of ongoing programmes or congressional district priorities. (13) In 2014, Senator John McCain stated &quoute;We’re going to have to try to arrange a series of hearings so that we can have a strategy that drives the budget instead of a budget that drives the strategy.&quoute; (10).
1) DOD, Strategy for Homeland defence and defence Support for Civil Authorities, February 2013, http://www.defence.gov/news/Homelanddefencestrategy.pdf
2) DOD, New Strategic Guidance for the 21st Century, Jan. 5, 2012, http://www.defence.gov/news/defence_strategic_guidance.pdf
3) DIA Five-Year Plan Updates Strategic Warning Mission, 2012-2017, http://www.defence.gov/news/newsarticle.aspx?id=117160
4) Army Strategic Planning Guidance, 2013, http://usarmy.vo.llnwd.net/e2/rv5_downloads/info/references/army_strategic_planning_guidance.pdf
5) Quadrennial defence Review 2014, http://www.defence.gov/pubs/2014_Quadrennial_defence_Review.pdf
6) defence Budget: Priorities and Choices, Jan. 2012, http://www.defence.gov/news/defence_Budget_Priorities.pdf
7) Strategic Management Plan, FY2014-2015, http://www.defence.gov/pubs/pdfs/FY14-15_SMP.pdf
8) defence Acquisition Guidebook, 2.7. Acquisition Strategy versus Acquisition Plan
https://acc.dau.mil/CommunityBrowser.aspx?id=510067
9) Dale, Catherine. 24 February 2014. &quoute;The 2014 Quadrennial defence Review (QDR)
and defence Strategy: Issues for Congress.&quoute; Congressional Research Service. Retrieved from http://www.fas.org/sgp/crs/natsec/R43403.pdf
10) Defence News, &quoute;McCain To Target 'Fiscal Irresponsibility,' Mulls SASC Subcommittee Shake-Up
&quoute; November 2014 http://www.defencenews.com/article/20141112/DEFREG02/311120062/McCain-Target-Fiscal-Irresponsibility-Mulls-SASC-Subcommittee-Shake-Up
11) POGO, &quoute;Congress, Pentagon Must Re-Evaluate F-35 in Light of Serious Deficiencies
&quoute; July 2015, http://www.pogo.org/blog/2015/07/congress-pentagon-reevaluate-f35.html?referrer=https://www.google.co.uk/
12) Josh Sweigart, Military.Com, &quoute;Congress Pushes for Weapons Pentagon Didn't Want
&quoute; August 2012, http://www.military.com/daily-news/2012/08/20/congress-pushes-for-weapons-pentagon-didnt-want.html
13) T.X. Hammes, War on the Rocks, &quoute;Let Strategy Drive Procurement,&quoute; July 2013, http://warontherocks.com/2013/07/let-strategy-drive-procurement/
14) Catherine Dale, 24 February 2014. &quoute;The 2014 Quadrennial defence Review (QDR)
and defence Strategy: Issues for Congress.&quoute; Congressional Research Service. Retrieved from http://www.fas.org/sgp/crs/natsec/R43403.pdf
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: Audits of DoD strategies are more or less conducted by third parties such as the Congressional Research Service and others, but they are not part of an internal mechanism for audits of strategy that would bind DoD to take certain actions. Nevertheless, they do play a part in exercising a degree of accountability through monitoring and reporting.
Sources:
1) Dale, Catherine. 24 February 2014. &quoute;The 2014 Quadrennial defence Review (QDR)
and defence Strategy: Issues for Congress.&quoute; Congressional Research Service. Retrieved from http://www.fas.org/sgp/crs/natsec/R43403.pdf
Suggested score:
Are defence purchases based on clearly identified and quantified requirements?
There are clear requirements for advance planning; FAR and DFARS lay out the procedure for defining requirements either prior to putting out the tender notice or in cooperation with suppliers. On occassion, specific requirements (or more generic desirable features of systems being acquired) are also included in the National Defence Authorization Acts. (10) As Schwartz observes, there is a three-step of identification of a required weapons system, including the Joint Capabilities Integration and Development System (JCIDS), for identifying requirements.
However, since major weapons purchases have to be approved by Congress, opportunity for political interference and unplanned purchases does exist. For example, Congress has appropriated funds for the M1 Abrams tank, which the Army has stated it did not need. Another case is that of HSS George H.W. Bush (CVN-77), a new nuclear aircraft carrier. While DOD wants to cancel the construction, some in Congress want construction to go forward to bring jobs and stimulate the economy of their constituencies. Similar concerns have been in play regarding the continuing funding for the A-10 Warthog close-combat support fighters in which a particular constituency specifically benefits from the manufacturing.
1) defence Acquisition Guidebook, 2.7. Acquisition Strategy versus Acquisition Plan
https://acc.dau.mil/CommunityBrowser.aspx?id=510067
2) CRS, "defence Acquisitions: How DOD Acquires Weapon Systems and Recent Efforts to Reform the Process," by Moshe Schwartz, January 2, 2013, https://www.fas.org/sgp/crs/natsec/RL34026.pdf
3) DOD Directive 5000.1, defence Acquisition System, http://www.dtic.mil/whs/directives/corres/pdf/500001p.pdf
4) DOD Directive 5000.2, Major Systems Acquisition Procedure, http://www.carlisle.army.mil/dime/documents/JPLD_AY08_Lsn%207_Reading%203_DODI%205000-2.pdf
5) Colin Clark, Breaking defence, "ORS Is In, Even At SMC; Watch Out Air Force Acquisition!" May 22, 2014, http://breakingdefence.com/2014/05/ors-is-in-even-at-smc-watch-out-air-force-acquisition/
6) Sydney Freedberg Jr., Breaking defence, "HASC Debates Sequestration’s ‘Terrible Dilemma’: A Ready Force or a Large One" May 7, 2014, http://breakingdefence.com/2014/05/hasc-debates-sequesters-terrible-dilemma-a-ready-force-or-a-large-one/
7) Daniel Wilson, Law360, &quoute;Watchdog Unseals Critical Report On DOD Mi-17 Overhauls,&quoute; Sept. 30, 2013,http://www.law360.com/articles/476939/watchdog-unseals-critical-report-on-dod-mi-17-overhauls
8) National Security, &quoute;Calling for Bigger, Better Solutions: Tackling Pentagon Bloat, Bad Investments,&quoute; February 12, 2014, http://nsnetwork.org/calling-for-bigger-better-solutions-tackling-pentagon-bloat-bad-investments/
9) Federal Acquisition Regulation, http://www.acquisition.gov/far/
10) defence Federal Acquisition Regulation Supplement (DFARS), http://www.acq.osd.mil/dpap/dars/dfarspgi/current/
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Is defence procurement generally conducted as open competition or is there a significant element of single-sourcing (that is, without competition)?
According to laws and regulations (FAR Part 5 and 6, DFARS section 206 and 207), procurement should mostly be conducted as open competition. FAR, Part 6 – Competition Requirements, Subpart 6.3—Other Than Full and Open Competition, sets out bases for non-competitive procurement. There are various levels of approval needed to contract without providing for full and open competition, and a case needs to be made for examptions.
There is inconsistent information available about the amount of sole-sourced procurement as a percentage of the defence budget. About 73% of procurement awards on USASpending.gov are listed as competitive bids. Other sources state that the share of defence contract obligations awarded without competition rose from 38 percent in 2000 to 42 percent in 2012. The share of defence contract obligations awarded after competition with two offers has declined steadily, from 25 percent in 2000 to 14 percent in 2012, due in large part to an increase in the number of competitive offers. Overall, the share of contract obligations awarded after competition with three or more offers has risen from 25 percent in 2000 to 34 percent in 2012, with the vast majority of that rise attributable to cases with five or more offers.
According to Federal News Radio, sole-sourcing is on the rise in the DOD despite policies to discourage it: from 64% of procurement spending being devoted to competitive bidding in 2008 to 57% in 2013. Preliminary 2014 data indicates that the trend remains: in the third quarter if FY 2014, DOD &quoute;made competitive awards on 56.5 percent of its contract dollars.&quoute; In 2014, Pentagon guidance was issued that places further hurdles to sole sourcing; however, it is too early to judge its effectiveness.
Though the information on sole sourcing is somewhat unclear, the most accurate score is 2.
1) USA Spending,
http://www.usaspending.gov/search?form_fields=%7B%22search_term%22%3A%22DEPT+OF+defence%22%2C%22extent_competed%22%3A%5B%22A%22%2C%22D%22%5D%7D&sort_by=dollars&per_page=25
2) Center for Strategic International Studies, National Security Program on Industry and Resources, "DOD Contract Spending and the Supporting Industrial Base, 2000–2012," Project Director David J. Berteau, Lead Authors: Gregory Sanders, Jesse Ellman, Rhys McCormick, December 2013, https://csis.org/files/publication/131207_Sanders_DODContractSpending_Web.pdf
3) CRS, 7-5700. "Competition in Federal Contracting: An Overview of the Legal Requirements," Kate M. Manuel, June 30, 2011
4) FAR, Part 6 – Competition Requirements, Subpart 6.3—Other Than Full and Open Competition, http://www.acquisition.gov/far/html/Subpart%206_3.html
5) defence Procurement and Acquisition Policy, Justifications and Approvals / Sole Source Acquisitions,
http://www.acq.osd.mil/dpap/ccap/cc/jcchb/html/Topical/sole_source.html
form_fields=%7B%22search_term%22%3A%22DEPT+OF+defence%22%2C%22extent_competed%22%3A%5B%22A%22%2C%22D%22%5D%7D&sort_by=dollars&per_page=25
6) CSIS National Security Program on Industry and Resources, "U.S. Department of defence Contract Spending and the Supporting Industrial Base, 2000–2012," Project Director
David J. Berteau, Lead Authors: Gregory Sanders, Jesse Ellman, Rhys McCormick, December 2013
https://csis.org/files/publication/131207_Sanders_DODContractSpending_Web.pdf
7) Saad Mustafa, Samantha Schwellenbach (defence Acquisition Resource Management Program [IDARM] at US Naval Postgraduate School - NPS), Mark Pyman and Elisabeth Wright (NPS-IDARM), &quoute;Single Sourcing- A multi-country analysis of non-competitive defence procurement&quoute; https://www.dropbox.com/s/bd81ed4dseas3a5/140910%20Single%20Sourcing.pdf
8) Kathy Brown and Nooree Lee, Inside Government COntracts, &quoute;Pentagon Issues New Procurement Guidelines and Adds Hurdles to Sole Source Awards&quoute; September 5th, 2014 http://www.insidegovernmentcontracts.com/2014/09/pentagon-issues-new-procurement-guidelines/
9) Jered Serbu, Federal News Radio, &quoute;Pentagon sees competition declining in defence contracting, and orders remedies,&quoute; August 2014, http://federalnewsradio.com/defence/2014/08/pentagon-sees-competition-declining-in-defence-contracting-and-orders-remedies/
10) InsideGovernmentContracts, 'Pentagon Issues New Procurement Guidelines and Adds Hurdles to Sole Source Awards', 5 September 2014. http://www.insidegovernmentcontracts.com/2014/09/pentagon-issues-new-procurement-guidelines/, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are tender boards subject to regulations and codes of conduct and are their decisions subject to independent audit to ensure due process and fairness?
All civilian and military employees of DOD are subject to ethics rules, prohibiting bribery (including acceptance of gifts) and conflicts of interest. This includes all persons involved in procurement decisions. In addition, procurement officials are required to file financial disclosure reports to demonstrate that neither the official nor his or her family have financial conflicts of interest in their work. Annual training for procurement officials is required and in place.
These rules of conduct mostly gathered in the Joint Ethics Regulation, are publicly available.
Panels reviewing acquisition tenders are independent and subject to audit, like all other operations of DOD, by DOD IG, the IGs of each of the Armed Services, the GAO and relevant Congressional committees. The audits are made publicly available, subject to national security concerns. Specific contracts can be audited, before of after the award, by the defence Contract Audit Agency.
1) DOD Instruction Number 7600.02, April 27, 2007, Subject: Audit Policies, http://www.dtic.mil/whs/directives/corres/pdf/760002p.pdf
2) List of DOD IG Audit Reports, http://www.dodig.mil/pubs/index.cfm
3) DOD Comptroller Reports, http://comptroller.defence.gov/FinancialManagement/Reports.aspx
4) defence Acquisition Guidebook, http://www.dote.osd.mil/docs/dote-temp-guidebook/defence-ACQUISITION-GUIDEBOOK-07-29-2011.pdf
5) 11th Ethics Counselor’s Course Deskbook , 2013, http://www.loc.gov/rr/frd/Military_Law/pdf/11th-Ethics-Counselor-Course-Deskbook.pdf
6) DOD Directive 5500.07, Standards of Conduct, www.dtic.mil/whs/directives/corres/pdf/550007p.pdf (November 29, 2007)
7) DOD 5500.07-R, The Joint Ethics Regulation (JER), www.dtic.mil/whs/directives/corres/pdf/550007r.pdf including Changes 1-7. (November 17, 2011).
8) 5 C.F.R. 2635. Standards of Conduct for Employees of the Executive Branch.. http://www.oge.gov/Laws-and-Regulations/OGE-Regulations/5-C-F-R--Part-2635---Standards-of-ethical-conduct-for-employees-of-the-executive-branch/
9) 5 C.F.R., 3601, Supplemental Standards of Conduct for Employees of DOD, http://www.gpo.gov/fdsys/granule/CFR-2011-title5-vol3/CFR-2011-title5-vol3-part3601
10) Memorandum from the Under Secretary for defence, "Mandatory Annual Ethics Training for the defence Acquisition Workforce," Jan. 15, 2014, http://www.acq.osd.mil/dpap/policy/policyvault/Mandatory_Annual_Ethics_Training_for_the_defence_Acquisition_Workforce_USD_ATL_signed_15_Jan_14.pdf
11) United States defence Contract Audit Agency. &quoute;External Peer Review.&quoute; Accessed on 22 February 2015. Retrieved from http://www.dcaa.mil/external_peer_review.html
12) Davis and Associates Certified Public Accountants, PLLC. 04 November 2012. &quoute;FY 2012 Financial Statements & Independent Auditor's Report.&quoute; Retrieved from http://www.dcaa.mil/publications/DCAA_FY2012_Final_Audit_Report.pdf
13) United States defence Contract Audit Agency (DCAA). 24 March 2014. &quoute;Report to Congress on FY 2013 Activities at the defence Contract Audit Agency.&quoute; Retrieved from http://www.dcaa.mil/DCAA_FY2013_Report_to_Congress.pdf
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: The defence Contract Audit Agency is responsible for providing audit and financial advisory services to entities in the defence sector that are engaged in acquisition and contract administration. The Agency provides publications publicly relating to its conduct, such as external peer reviews, Congressional reports, and independent auditor reports.
Sources:
1) United States defence Contract Audit Agency. &quoute;External Peer Review.&quoute; Accessed on 22 February 2015. Retrieved from http://www.dcaa.mil/external_peer_review.html
2) Davis and Associates Certified Public Accountants, PLLC. 04 November 2012. &quoute;FY 2012 Financial Statements & Independent Auditor's Report.&quoute; Retrieved from http://www.dcaa.mil/publications/DCAA_FY2012_Final_Audit_Report.pdf
3) United States defence Contract Audit Agency. 24 March 2014. &quoute;Report to Congress on FY 2013 Activities at the defence Contract Audit Agency.&quoute; Retrieved from http://www.dcaa.mil/DCAA_FY2013_Report_to_Congress.pdf
Suggested score:
Does the country have legislation in place to discourage and punish collusion between bidders for defence and security contracts?
The Sherman Antitrust Act prohibits agreements among competitors to fix prices, rig bids, or engage in other anticompetitive activity. Criminal prosecution of Sherman Act violations is the responsibility of the Antitrust Division of the United States Department of Justice. Priorities of the defence Criminal Investigative Service (DCIS), part of the DOD Inspector General office, also include procurement fraud and, as part of it, price fixing and bid-rigging practices. Attorneys at the Department of Justice Antitrust Division conduct outreach and training programs for public procurement officials and government investigators, including investigators who work for other government agencies that solicit bids for various projects.
Violation of the Sherman Act is a felony punishable by up to 10 years imprisonment and a $1 million fine for individuals and a fine of up to $100 million for corporations. In addition, collusion among competitors may also involve violations of the Mail or wire fraud statute, the False statements statute, or other federal felony statutes, all of which the Antitrust Division prosecutes. In addition to receiving a criminal sentence, a corporation or individual convicted of a Sherman Act violation may be ordered to make restitution to the victims for all overcharges. Victims of bid-rigging and price-fixing conspiracies also may seek civil recovery of up to three times the amount of damages suffered.
1) Sherman Ant-Trust Act §1, 15 U.S.C. §1 (1890)
2) Air Force Material Command Procurement Fraud Indicators Handbook, July 2008, Section on collusive bidding, http://www.acq.osd.mil/dpap/ccap/cc/jcchb/Files/Topical/Ethics/guides/AFMC%20Procurement%20Fraud%20Indicator%20Handbook.pdf
3) DOD Procurement Fraud Working Group, annual training, http://www.acq.osd.mil/dpap/policy/policyvault/USA006840-11-DPAP.pdf
4) OECD Global Forum on Collusion, Contribution of the United States, "Collusion and Corruption in Public Procurement," DAF/COMP/GF/WD(2010)26, 20-Jan-2010 http://www.justice.gov/atr/public/international/270413.pdf
5) DOJ, Preventing and Detecting Bid Rigging, Price Fixing, and Market Allocation in Post-Disaster Rebuilding Projects: An Antitrust Primer for Agents and Procurement Officials
http://www.justice.gov/atr/public/guidelines/disaster_primer.htm
6) Robert Kramer, Department of Justice, "Antitrust Considerations in International defence Mergers" http://www.justice.gov/atr/public/speeches/2649.htm
7) Washington Post, Marjorie Censer," defence Industry Bracing for Consolidation.," Dec. 8, 2013, http://www.washingtonpost.com/business/capitalbusiness/defence-industry-bracing-for-consolidation/2013/12/06/8018255a-5c33-11e3-be07-006c776266ed_story.html
8) defence Criminal Investigative Service (DCIS), 'Investigations'. http://www.dodig.mil/INV_DCIS/index.cfm, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: Unable to find any recent instances available in the public space where collusion among bidders for defence or armed services contracts occurred.
Suggested score:
Are procurement staff, in particular project and contract managers, specifically trained and empowered to ensure that defence contractors meet their obligations on reporting and delivery?
FAR and DFARS both charge procurement officers with the duty to monitor contract performance, address shortcomings, and monitor corrective actions before closing out a contract. The regulations also provide specific procedures which guide officers' actions.
Training and professional courses are available for procurement staff, for example through the defence Acquisition University, entirely geared toward the training of procurement officials. There are dozens of classes on all aspects of procurement, including contract monitoring. Issues remain, however, about whether adequate resources for training are available in light of budget cuts.
Staff shortages could also be an issue. While some categories of acquisition staff are exempt from Congress-set staff reduction goals, a GAO report found that DOD's human resources management processes and data has shortcomings, which could translate into inadequate staff numbers in different areas.
1) defence Acquisition University, http://www.dau.mil/default.aspx
2) Claudette Roulo, American Forces Press Service, "Acquisitions Chiefs Describe Effects of Budget Uncertainty,"br>Oct. 24, 2013, http://www.defence.gov/news/newsarticle.aspx?id=120997
3) &quoute;Contracting Officer's Certification Requirement,&quoute; http://www.fai.gov/drupal/certification/fac-cor
4) US Government, 'Federal Acquisition Regulation' (FAR; FAC 2005-84/10-05-2015), available at https://www.acquisition.gov/?q=browsefar. Accessed October 2015.
5) Department of defence, 'defence Federal Acquisition Regulation Supplement (DFARS) and Procedures, Guidance, and Information (PGI)', last updated 1 October 2015. http://www.acq.osd.mil/dpap/dars/dfarspgi/current/, accessed October 2015.
6) 10 U.S. Code Part IV, 'Service, Supply and Procurement'. https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-IV, accessed October 2015.
7) GAO, 'defence Headquarters. DOD Needs to Reassess Personnel Requirements for the Office of Secretary of defence, Joint Staff, and Military Service Secretariats', January 2015. http://www.gao.gov/assets/670/667997.pdf, accessed October 2015.
Opinion: Agree with Comments
Comment: Lack of staff is hardly a minor shortcoming.
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are there mechanisms in place to allow companies to complain about perceived malpractice in procurement, and are companies protected from discrimination when they use these mechanisms?
Complaints regarding the procurement process, including malpractice complaints, can be directed to the procuring agency, the GAO or the United States Court of Federal Claims (CFC). Their rulings can be appealed to Court of Appeals for the Federal Circuit. In 2014, GAO received 2,561 bidding protests (although it's not possible to determine how many of those concerned malpractice), with 2.5% of defence-related protests have been sustained in the 2008-2014 period. As the number of complaints to GAO has remained relatively constant over the years, it can be concluded that companies are unlikely to be afraid of retaliation and that the mechanisms in place are effective. (6, 7)
DOD has a whistleblower hotline, an office dedicated to preventing reprisals against whistleblowers, a Whistleblower Protection Ombudsman, among other things. The program covers contractor employees, as well as the companies themselves, and could also constitute a mechanism of reporting wrongdoing.
1) DOD IG Whistleblower Program, http://www.dodig.mil/Programs/whistleblower/index.html
2) Contractor Disclosure Program, http://www.dodig.mil/Programs/CD/index.html
3) FAR Clause 52.203-13, Contractor Code of Business Ethics and Conduct, http://www.acquisition.gov/far/html/52_200_206.html
4) U.S. Department of defence, Inspector General. 24 April 2013. "Processing Complaints Or Information Under The Intelligence Community Whistleblower Protection Act Of 1998," Retrieved from http://www.dodig.mil/Resources/policyreferences/IGInstructions/PDFs/IGDINST7050.11_4-24-13.pdf
5) U.S. Department of defence, Inspector General. 21 February 2012. &quoute;United States Code, 2011 Edition.&quoute; Retrieved from http://www.dodig.mil/Resources/PolicyReferences/whistleblower/10_USC_2409.pdf
6) Moshe Schwartz and Kate M. Manuel, Congressional Research Service. 'GAO Bid Protests: Trends and Analysis', 21 July 2015. https://www.fas.org/sgp/crs/misc/R40227.pdf, accessed October 2015.
7) U.S. Attorney's Manual, Section 47, 'Court Of Federal Claims Litigation'. http://www.justice.gov/usam/civil-resource-manual-47-court-federal-claims-litigation, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: United States Code 10, Section 2409 is an additional framework that prohibits reprisals specifically against and conveys protections onto contract employees. Policy mechanisms are also in place for the intelligence community of the defence sector.
A proper measure of efficiency in the application of these mechanisms is difficult to ascertain.
Sources:
1) U.S. Department of defence, Inspector General. 24 April 2013. "Processing Complaints Or Information Under The Intelligence Community Whistleblower Protection Act Of 1998," Retrieved from http://www.dodig.mil/Resources/policyreferences/IGInstructions/PDFs/IGDINST7050.11_4-24-13.pdf
2) U.S. Department of defence, Inspector General. 21 February 2012. &quoute;United States Code, 2011 Edition.&quoute; Retrieved from http://www.dodig.mil/Resources/PolicyReferences/whistleblower/10_USC_2409.pdf
Suggested score:
What sanctions are used to punish the corrupt activities of a supplier?
Sanctions for corrupt contractors range from administrative to criminal, including fines and debarment.
Both domestic and international bribery are criminalised, by the US Code and FCPA respectively, and both acts stipulate sanctions ranging from return of ill-gotten gains to civil fines to imprisonment. Administrative sanctions include a well-developed system of suspension and debarment. (10)
A 2012 GAO report analysed the application of suspension and debarment measures at four DOD components—the Departments of the Air Force, Army, Navy (including the U.S. Marine Corps), and defence Logistics Agency. Together, the agencies took a total of 3,443 suspension and debarment actions during fiscal years 2009 through 2011, accounting for nearly 100 percent of all such actions in DOD. However, there is disagreement about how effective the debarment/suspension system is, with some arguing it is used too much, and others that it is not used enough.
Jail time has also been given to defence contractors involved in corruption. (11, 12)
Despite these positive examples, however, there are examples of corruption by contractors during the Afghan operation that have not been punished. Chris Shays, co-chair of the Commission on Wartime Contracting in Iraq and Afghanistan, stated: &quoute;For the 200,000 people employed by contractors to provide support and capability in Iraq and Afghanistan, accountability is too often absent, diluted, delayed, or avoided.&quoute; Citing barriers to suspending and barring contractors with violations, Shays and colleagues alleged in a statement that &quoute;untrustworthy contractors can continue profiting from government work, responsible businesses may be denied opportunities, and costs to taxpayers can climb.&quoute; (Source 13) Though the 2011 report on contracting is several years old, further information on implementation of its recommendations was not found.
1) GAO, "DOD Has Active Referral Processes, but Action Needed to Promote Transparency," GAO-12-932, Sep 19, 2012
2) Holland & Knight, Steven D. Gordon and Richard O. Duvall, "United States: It’s Time To Rethink The Suspension And Debarment Process," July 3 2013, http://www.mondaq.com/unitedstates/x/248174/Government+Contracts+Procurement+PPP/Its+Time+To+Rethink+The+Suspension+And+Debarment+Process
3) 48 CFR Part 9, Subpart 9.4 - Debarment, Suspension, and Ineligibility, http://www.acquisition.gov/far/current/html/Subpart%209_4.html
4) Debarment Solutions Institute, "Primer on Suspension and Debarment," http://www.nsf.gov/oig/Susp_Debar_WS/2_Primer_part1_Meunier.pdf
5) Press Release, "McCaskill Concerned About Army’s Ineffective Use of Suspension and Debarment," Dec. 7. 2012, http://www.mccaskill.senate.gov/?p=press_release&id=1754
6) Business Week, "Army Seeks to Bar New Jersey Assemblyman from Contracts," By Tony Capaccio Dec. 03, 2012, http://www.businessweek.com/news/2012-12-03/army-seeks-to-bar-new-jersey-assemblyman-from-contracts
7) DOD FAR Supplement (DFARS), Subpart 209.4, Debarment Suspension, and Ineligibility, http://farsite.hill.af.mil/vfdfara.htm
8) Army FAR Supplement (AFARS), Subpart 5109.4, Debarment, Suspension, and Ineligibility, http://farsite.hill.af.mil/vfafara.htm
9) DOD Instruction 7040.04, Coordination of Remedies For Fraud and Corruption Related to Procurement Activities, http://www.dtic.mil/whs/directives/corres/pdf/705005p.pdf
10) Steven A. Shaw & Jade C. Totman, Transparency International Defence and Security & Covington and Burling LLP, 'Suspension and Debarment: Strengthening Integrity in Defence Contracting.&quoute; &quoute;https://www.cov.com/~/media/files/corporate/publications/2015/04/suspension_debarment_strengthening_integrity_in_international_defence_contracting.pdf
11) US Department of Justice, &quoute;Former defence Department Contract Employee Sentenced to 35 Months in Prison for Participating in Corruption Scheme at Camp Arifjan in Kuwait&quoute; April 2, 2013 http://www.justice.gov/opa/pr/former-defence-department-contract-employee-sentenced-35-months-prison-participating
12) Sean Reilling, Federal Times, &quoute;Couple in DoD fraud case get jail time&quoute; February 2014 http://archive.federaltimes.com/article/20140217/ACQ02/302170011/Couple-DoD-fraud-case-get-jail-time
13) Dan Froomkin, Huffington Post, &quoute;Report: Wartime Contractors Waste, Steal Tens Of Billions -- Then Come Back For More&quoute; February 2011, http://www.huffingtonpost.com/2011/02/28/wartime-contractors-waste-billions_n_829251.html
14) Commission on Wartime Contracting
in Iraq and Afghanistan, &quoute;At what risk? Correcting over-reliance on contractors in contingency operations&quoute; February 2011 http://cybercemetery.unt.edu/archive/cwc/20110929221313/http://www.wartimecontracting.gov/docs/CWC_InterimReport2-lowres.pdf
15) U.S. Code, Section 18, § 201 - Bribery of public officials and witnesses. https://www.law.cornell.edu/uscode/text/18/201, accessed October 2015.
16) U.S. Securities and Exchange Commission, 'Spotlight on Foreign Corrupt Practices Act'. https://www.sec.gov/spotlight/fcpa.shtml, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
When negotiating offset contracts, does the government specifically address corruption risk by imposing due diligence requirements on contractors? Does the government follow up on offset contract performance and perform audits to check performance and integrity?
The official US policy on defence offset contracts is that they distort the market and should be avoided. The 1992 Amendments to the 1950 Defence Production Act (Section 123) declares that 'certain offsets for military exports are economically inefficient and market distorting', and states that the US government will not assist any US company in entering offsets. (2, 3) The 2000 Appropriations Act reiterates that offsets 'can cause economic distortions in international defence trade and undermine fairness and competitiveness'. The Act also commits the US to monitoring the use of offsets and promoting fairness in their use. (4)
However, there is a lack of clarity as to whether some US legal regulations enable offset contracts: the 'Buy American' Act requires that at least 50% of the foreign-sourced defence equipment has to be built in the US and the Berry Amendment to the Act takes the requirement to 100% for some categories of defence materiel. There is an argument that these regulations come close to constituting an offset requirement. (1, 5, 10, 11, 12) The 2000 Appropriations Act also stipulates that 'foreign participation in the production of United States weapons systems' should not have adverse effects on US economy. (4)
SIPRI data indicates that the United States, although it is more widely seen as a top arms exporter, is also among the top 10 arms importers; this means that there is potential for offsets. (6, 7) However, between 2007 and 2014, DOD has granted 307,123 waivers to the Buy American Act, in particular for items bought for use outside the United States, which is an exemption allowed by the Act. (8)
Given that the Buy American Act is not technically or uniformly seen as constituting an offset requirement; lack of evidence regarding the scale of any offset-like contracts; and the large number of waivers of the Act, score N/A has been selected.
1) The Economist, &quoute;Guns and sugar,&quoute; May 25th 2013, http://www.economist.com/news/business/21578400-more-governments-are-insisting-weapons-sellers-invest-side-deals-help-them-develop
2) U.S. Department of Commerce, Bureau of Industry and Security, 'Offsets in defence Trade.
Sixteenth Study Conducted Pursuant to Section 723 of the defence Production Act of 1950, as Amended', January 2012. https://www.bis.doc.gov/index.php/forms-documents/doc_view/396-offsets-in-defence-trade-sixteenth-study, accessed October 2012.
3) 'An Act to amend the defence Production Act of 1950 to revitalize the defence industrial base of the United States, and for other purposes', 28 October 1992. http://www.gpo.gov/fdsys/pkg/STATUTE-106/pdf/STATUTE-106-Pg4198.pdf, accessed October 2015.
4) 'An Act Making consolidated appropriations for the fiscal year ending September 30, 2000,
and for other purposes', 19 November 1999. Appendix G, Section 1241-1248, 'defence Offsets Disclosure'. http://www.gpo.gov/fdsys/pkg/PLAW-106publ113/pdf/PLAW-106publ113.pdf, accessed October 2015.
5) Carola Hoyos, Daniella Tsar and Antoine Amann, 'Q&A: what are offsets?', Financial Times, 9 October 2013. http://www.ft.com/intl/cms/s/0/87728d1e-197a-11e3-afc2-00144feab7de.html#axzz3oTQIZQ18, accessed October 2015.
6) SIPRI Arms Transfers Database, 'TIV of arms exports to United States, 2010-2014'. http://armstrade.sipri.org/armstrade/html/export_values.php, generated October 2015.
7) SIPRI Fact Sheet, 'Trends in international arms transfers, 2014'. March 2015. http://books.sipri.org/product_info?c_product_id=495, accessed October 2015.
8) Office of Senator Christopher Murphy, 'Not made in the U.S.A. Buy American Act Waivers and Conneticut Manufacturing Jobs', May 2015. http://www.murphy.senate.gov/download/not-made-in-the-usa_buy-american-act-waivers-and-connecticut-manufacturing-jobs-report-2014?id=e4fd7273-5ef1-4980-ba34-263cfe359f3f&download=1, accessed October 2015.
10) John R. Luckey, Congressional Research Service, 'Domestic Content Legislation: The Buy American Act and Complementary Little Buy American Provisions', 25 April 2012. https://www.fas.org/sgp/crs/misc/R42501.pdf, accessed October 2015.
11) National defence Industrial Association, 'Background Paper on Offsets', Spring 2004. http://www.ndia.org/Advocacy/Resources/Documents/Content/NavigationMenu/Advocacy/Action_Items/PDFs29/Offset_Background_Paper.pdf, accessed October 2015.
12) UK Trade&Investment Defence & Security Organisation, 'Defence and security export market briefing: USA', Updated 16 September 2015. https://www.gov.uk/government/publications/defence-and-security-export-market-briefing-usa/defence-and-security-export-market-briefing-usa, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Does the government make public the details of offset programmes, contracts, and performance?
The official US policy on defence offset contracts is that they distort the market and should be avoided. The 1992 Amendments to the 1950 Defence Production Act (Section 123) declares that 'certain offsets for military exports are economically inefficient and market distorting', and states that the US government will not assist any US company in entering offsets. (2, 3) The 2000 Appropriations Act reiterates that offsets 'can cause economic distortions in international defence trade and undermine fairness and competitiveness'. The Act also commits the US to monitoring the use of offsets and promoting fairness in their use. (4)
However, there is a lack of clarity as to whether some US legal regulations enable offset contracts: the 'Buy American' Act requires that at least 50% of the foreign-sourced defence equipment has to be built in the US and the Berry Amendment to the Act takes the requirement to 100% for some categories of defence materiel. There is an argument that these regulations come close to constituting an offset requirement. (1, 5, 10, 11, 12) The 2000 Appropriations Act also stipulates that 'foreign participation in the production of United States weapons systems' should not have adverse effects on US economy. (4)
SIPRI data indicates that the United States, although it is more widely seen as a top arms exporter, is also among the top 10 arms importers; this means that there is potential for offsets. (6, 7) However, between 2007 and 2014, DOD has granted 307,123 waivers to the Buy American Act, in particular for items bought for use outside the United States, which is an exemption allowed by the Act. (8)
Given that the Buy American Act is not technically or uniformly seen as constituting an offset requirement; lack of evidence regarding the scale of any offset-like contracts; and the large number of waivers of the Act, score N/A has been selected.
1) The Economist, &quoute;Guns and sugar,&quoute; May 25th 2013, http://www.economist.com/news/business/21578400-more-governments-are-insisting-weapons-sellers-invest-side-deals-help-them-develop
2) U.S. Department of Commerce, Bureau of Industry and Security, 'Offsets in defence Trade.
Sixteenth Study Conducted Pursuant to Section 723 of the defence Production Act of 1950, as Amended', January 2012. https://www.bis.doc.gov/index.php/forms-documents/doc_view/396-offsets-in-defence-trade-sixteenth-study, accessed October 2012.
3) 'An Act to amend the defence Production Act of 1950 to revitalize the defence industrial base of the United States, and for other purposes', 28 October 1992. http://www.gpo.gov/fdsys/pkg/STATUTE-106/pdf/STATUTE-106-Pg4198.pdf, accessed October 2015.
4) 'An Act Making consolidated appropriations for the fiscal year ending September 30, 2000,
and for other purposes', 19 November 1999. Appendix G, Section 1241-1248, 'defence Offsets Disclosure'. http://www.gpo.gov/fdsys/pkg/PLAW-106publ113/pdf/PLAW-106publ113.pdf, accessed October 2015.
5) Carola Hoyos, Daniella Tsar and Antoine Amann, 'Q&A: what are offsets?', Financial Times, 9 October 2013. http://www.ft.com/intl/cms/s/0/87728d1e-197a-11e3-afc2-00144feab7de.html#axzz3oTQIZQ18, accessed October 2015.
6) SIPRI Arms Transfers Database, 'TIV of arms exports to United States, 2010-2014'. http://armstrade.sipri.org/armstrade/html/export_values.php, generated October 2015.
7) SIPRI Fact Sheet, 'Trends in international arms transfers, 2014'. March 2015. http://books.sipri.org/product_info?c_product_id=495, accessed October 2015.
8) Office of Senator Christopher Murphy, 'Not made in the U.S.A. Buy American Act Waivers and Conneticut Manufacturing Jobs', May 2015. http://www.murphy.senate.gov/download/not-made-in-the-usa_buy-american-act-waivers-and-connecticut-manufacturing-jobs-report-2014?id=e4fd7273-5ef1-4980-ba34-263cfe359f3f&download=1, accessed October 2015.
10) John R. Luckey, Congressional Research Service, 'Domestic Content Legislation: The Buy American Act and Complementary Little Buy American Provisions', 25 April 2012. https://www.fas.org/sgp/crs/misc/R42501.pdf, accessed October 2015.
11) National defence Industrial Association, 'Background Paper on Offsets', Spring 2004. http://www.ndia.org/Advocacy/Resources/Documents/Content/NavigationMenu/Advocacy/Action_Items/PDFs29/Offset_Background_Paper.pdf, accessed October 2015.
12) UK Trade&Investment Defence & Security Organisation, 'Defence and security export market briefing: USA', Updated 16 September 2015. https://www.gov.uk/government/publications/defence-and-security-export-market-briefing-usa/defence-and-security-export-market-briefing-usa, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are offset contracts subject to the same level of competition regulation as the main contract?
The official US policy on defence offset contracts is that they distort the market and should be avoided. The 1992 Amendments to the 1950 Defence Production Act (Section 123) declares that 'certain offsets for military exports are economically inefficient and market distorting', and states that the US government will not assist any US company in entering offsets. (2, 3) The 2000 Appropriations Act reiterates that offsets 'can cause economic distortions in international defence trade and undermine fairness and competitiveness'. The Act also commits the US to monitoring the use of offsets and promoting fairness in their use. (4)
However, there is a lack of clarity as to whether some US legal regulations enable offset contracts: the 'Buy American' Act requires that at least 50% of the foreign-sourced defence equipment has to be built in the US and the Berry Amendment to the Act takes the requirement to 100% for some categories of defence materiel. There is an argument that these regulations come close to constituting an offset requirement. (1, 5, 10, 11, 12) The 2000 Appropriations Act also stipulates that 'foreign participation in the production of United States weapons systems' should not have adverse effects on US economy. (4)
SIPRI data indicates that the United States, although it is more widely seen as a top arms exporter, is also among the top 10 arms importers; this means that there is potential for offsets. (6, 7) However, between 2007 and 2014, DOD has granted 307,123 waivers to the Buy American Act, in particular for items bought for use outside the United States, which is an exemption allowed by the Act. (8)
Given that the Buy American Act is not technically or uniformly seen as constituting an offset requirement; lack of evidence regarding the scale of any offset-like contracts; and the large number of waivers of the Act, score N/A has been selected.
1) The Economist, &quoute;Guns and sugar,&quoute; May 25th 2013, http://www.economist.com/news/business/21578400-more-governments-are-insisting-weapons-sellers-invest-side-deals-help-them-develop
2) U.S. Department of Commerce, Bureau of Industry and Security, 'Offsets in defence Trade.
Sixteenth Study Conducted Pursuant to Section 723 of the defence Production Act of 1950, as Amended', January 2012. https://www.bis.doc.gov/index.php/forms-documents/doc_view/396-offsets-in-defence-trade-sixteenth-study, accessed October 2012.
3) 'An Act to amend the defence Production Act of 1950 to revitalize the defence industrial base of the United States, and for other purposes', 28 October 1992. http://www.gpo.gov/fdsys/pkg/STATUTE-106/pdf/STATUTE-106-Pg4198.pdf, accessed October 2015.
4) 'An Act Making consolidated appropriations for the fiscal year ending September 30, 2000,
and for other purposes', 19 November 1999. Appendix G, Section 1241-1248, 'defence Offsets Disclosure'. http://www.gpo.gov/fdsys/pkg/PLAW-106publ113/pdf/PLAW-106publ113.pdf, accessed October 2015.
5) Carola Hoyos, Daniella Tsar and Antoine Amann, 'Q&A: what are offsets?', Financial Times, 9 October 2013. http://www.ft.com/intl/cms/s/0/87728d1e-197a-11e3-afc2-00144feab7de.html#axzz3oTQIZQ18, accessed October 2015.
6) SIPRI Arms Transfers Database, 'TIV of arms exports to United States, 2010-2014'. http://armstrade.sipri.org/armstrade/html/export_values.php, generated October 2015.
7) SIPRI Fact Sheet, 'Trends in international arms transfers, 2014'. March 2015. http://books.sipri.org/product_info?c_product_id=495, accessed October 2015.
8) Office of Senator Christopher Murphy, 'Not made in the U.S.A. Buy American Act Waivers and Conneticut Manufacturing Jobs', May 2015. http://www.murphy.senate.gov/download/not-made-in-the-usa_buy-american-act-waivers-and-connecticut-manufacturing-jobs-report-2014?id=e4fd7273-5ef1-4980-ba34-263cfe359f3f&download=1, accessed October 2015.
10) John R. Luckey, Congressional Research Service, 'Domestic Content Legislation: The Buy American Act and Complementary Little Buy American Provisions', 25 April 2012. https://www.fas.org/sgp/crs/misc/R42501.pdf, accessed October 2015.
11) National defence Industrial Association, 'Background Paper on Offsets', Spring 2004. http://www.ndia.org/Advocacy/Resources/Documents/Content/NavigationMenu/Advocacy/Action_Items/PDFs29/Offset_Background_Paper.pdf, accessed October 2015.
12) UK Trade&Investment Defence & Security Organisation, 'Defence and security export market briefing: USA', Updated 16 September 2015. https://www.gov.uk/government/publications/defence-and-security-export-market-briefing-usa/defence-and-security-export-market-briefing-usa, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
How strongly does the government control the company's use of agents and intermediaries in the procurement cycle?
The Federal Acquisition Regulation allows subcontractors but exercises control over their selection and use. In contracts over $5 million and performance period greater than 120 days, the government agency awarding the contract must consent to the use of subcontractors.
All subcontractors, as well as agents, must abide by the same ethics rules as the prime contractor. The government requires that the main contractor adopts a comprehensive compliance and ethics programme, together with training for all employees, subcontractors and agents, within 90 days of the contract award. It also stipulates that these provisions apply equally to subcontractors and agents of the main contractor. In addition, the main contractor is obliged to disclose any ethical and compliance violations committed by itself or by a subcontractor or agent. (8) These disclosures are to be made to the manager of the Contractor Disclosure Program at the DOD Inspector General's office. (9)
According to the International Traffic in Arms Regulations (ITAR) Part 129 (&quoute;Registration and Licensing of Brokers&quoute;), brokers are required to register with the Directorate of defence Trade Controls, obtain its approval, and report annually on brokering activities.
However, problems remain at the interface of government/company agents: despite the regulations in place, the use of agents and brokers still lacks necessary scrutiny to prevent corruption. There have been numerous cases of the US government using agents and dealers to procure arms abroad. For example, on article uncovered the use of agents in procuring foreign arms for US allies on behalf of the US government, including arms that ended up in Afghanistan.(4) Similarly, two young men have been shown to have operated as agents for the US military, and even used US government funding on Chinese arms (under embargo) for Afghanistan.(5) Sharon Weinberger suggested that due to the efforts to equip the armed forces in Afghanistan and Iraq with modern weapons, 'legal ambiguities and loopholes' that had not existed before were created in export controls and facilitated the rise of middlemen. Analysts suggest that even with officials blacklists, the rules have become unclear due to the challenges of the War on Terror. (6)
1) FAR Part 44—Subcontracting Policies and Procedures, http://acquisition.gov/far/current/html/FARTOCP44.html
2) Department of defence, Ethics of Contractors in the Workplace and on Deployment, 10th Ethics Counselors Course (2012), http://www.dod.mil/dodgc/defence_ethics/resource_library/deskbook/contractors_in_federal_workplace.pdf
3) GAO, defence Contracting Integrity: Opportunities Exist to Improve DOD's Oversight of Contractors' Ethics Programs, GAO 09-951, Sept. 2009, http://books.google.com/books?id=Xxigo4bZFOwC&pg=PA43&lpg=PA43&dq=dod+ethics+subcontracts&source=bl&ots=4kDYUTBqLS&sig=Zi3w3K7pjXBCYGUU67mp5jzLpDc&hl=en&sa=X&ei=1BldVM6LD8-HsQSj_IKYBw&ved=0CB0Q6AEwADgK#v=onepage&q=dod%20ethics%20subcontracts&f=false
4) Aram Rostom, &quoute;How A One-Time Pig Peddler Helped The U.S. Flood War Zones With Guns,&quoute; July 2014, http://www.buzzfeed.com/aramroston/how-a-one-time-pig-peddler-helped-the-us-flood-war-zones-wit#.bhm0OY1Lk
5) Guy Lawson, Rolling Stone, &quoute;The Stoner Arms Dealers,&quoute; March 2011, http://www.rollingstone.com/politics/news/the-stoner-arms-dealers-20110316
6) Sharon Weinberger, &quoute;U.S. Arms Dealer Tests Legal Bounds in Middle East Arms Bazaar,&quoute; March 2008, http://archive.wired.com/politics/security/news/2008/07/defence_solutions?currentPage=all
7) Electronic Code of Federal Regulations, The International Traffic in Arms Regulations (ITAR), &quoute;ITAR Part 129 - Registration and Licensing of Brokers&quoute; http://www.ecfr.gov/cgi-bin/text-idx?SID=86008bdffd1fb2e79cc5df41a180750a&node=22:1.0.1.13.66&rgn=div5 Accessed September 2015
8) 48 CFR 52.203-13 - Contractor Code of Business Ethics and Conduct, April 2010. https://www.law.cornell.edu/cfr/text/48/52.203-13, accessed October 2015.
9) DOD Inspector General, Contractor Disclosure Program. Contractor Disclosure Program, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Are the principal aspects of the financing package surrounding major arms deals, (such as payment timelines, interest rates, commercial loans or export credit agreements) made publicly available prior to the signing of contracts?
A search of DOD websites, the Federal Registry and (defence) Federal Acquisition regulations yielded no information on whether any elements of defence contracts are routinely made available prior to the signing of the contract, although at least the basic elements of most contracts are made public after it is signed. (3, 9) However, basic information for large contracts which require separate approval from Congress (such as the F-35 contract), is likely to be available prior to the conclusion of the contract. (1, 2)
No further evidence was found.
1) Doug Cameron, 'Pentagon to Urge Congress to Approve F-35 Fighter Contract', Wall Street Journal, 29 May 2015. http://www.wsj.com/articles/pentagon-to-urge-congress-to-approve-f-35-fighter-contract-1432932010, accessed October 2015.
2) Reuters, 'Lockheed, Pentagon ink $4.7 billion deal for eighth batch of F-35 fighters', 21 November 2014. http://www.reuters.com/article/2014/11/21/us-lockheed-fighter-idUSKCN0J52DJ20141121, accessed October 2015.
3) US Department of defence, 'Contracts. Press Release No: CR-105-15', 4 June 2015. http://www.defence.gov/News/Contracts/Contract-View/Article/606863, accessed October 2015.
4) defence Contract Management Agency (DCMA), http://www.dcma.mil/
5) http://www.defence.gov/
6) http://comptroller.defence.gov/
7) US Government, 'Federal Acquisition Regulation' (FAR; FAC 2005-84/10-05-2015), available at https://www.acquisition.gov/?q=browsefar. Accessed October 2015.
8)Department of defence, 'defence Federal Acquisition Regulation Supplement (DFARS) and Procedures, Guidance, and Information (PGI)', last updated 1 October 2015. http://www.acq.osd.mil/dpap/dars/dfarspgi/current/, accessed October 2015.
9) US department of defence, 'Contracts'. http://www.defence.gov/News/Contracts, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
Does the government formally require that the main contractor ensures subsidiaries and sub-contractors adopt anti-corruption programmes, and is there evidence that this is enforced?
The Federal Acquisition Regulation formally require that the main contractor adopts a comprehensive compliance and ethics programme, together with training for all employees and subcontractors, within 90 days of the contract award. It also stipulates that these provisions apply equally to subcontractors and agents of the main contractor, provided that the subcontract exceeds the value of $ 5 million. The main contractor is also obliged to disclose any ethical and compliance violations committed by itself or by a subcontractor. (6) These disclosures are to be made to the manager of the Contractor Disclosure Program at the DOD Inspector General's office. (7)
In addition, the Foreign Corrupt Practices Act makes a prime contractor liable for the actions of its subcontractors, agents, intermediaries and brokers. (4, 5)
A 2009 GAO report suggests that the government takes seriously the requirement for subcontractors to abide by the ethics rules, though it also made some recommendations for improving oversight of subcontractors. No more recent reports have been found.
1) Department of defence, Ethics of Contractors in the Workplace and on Deployment, 10th Ethics Counselors Course (2012), http://www.acq.osd.mil/dpap/ccap/cc/jcchb/Files/Topical/Ethics/training/aca_contractors_in_workplace_final_march%202004.docx
2) General Accountability Office, "defence Contracting Integrity: Opportunities Exist to Improve DOD’s Oversight of Contractor Ethics Programs," GAO-09-591 (September 2009), http://www.gao.gov/new.items/d09591.pdf
3) FAR Part 44—Subcontracting Policies and Procedures, http://acquisition.gov/far/current/html/FARTOCP44.html
4) U.S. Department of Justice and U.S. Securities and Exchange Commission. 14 November 2012. &quoute;A Resources Guide To The U.S. Foreign Corrupt Practices Act.&quoute; Retrieved from http://www.justice.gov/criminal/fraud/fcpa/guidance/guide.pdf
5) U.S. Department of Justice. &quoute;FPCA and Related Enforcement Actions.&quoute; Accessed on 22 February 2015. Retrieved from http://www.justice.gov/criminal/fraud/fcpa/cases/2014.html
6) 48 CFR 52.203-13 - Contractor Code of Business Ethics and Conduct, April 2010. https://www.law.cornell.edu/cfr/text/48/52.203-13, accessed October 2015.
7) DOD Inspector General, Contractor Disclosure Program. Contractor Disclosure Program, accessed October 2015.
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree with Comments
Comment: The U.S. Department of Justice and U.S. Securities and Exchange Commission created a guide for businesses and individuals that outlines the U.S. Foreign Corrupt Practices Act (FPCA) enforcement approach and priorities in order to better inform entities that engage in contract work with government. The FPCA specifically holds main contractors to account for the activities of its subcontractors and/or subsidiaries.
Sources:
1) U.S. Department of Justice and U.S. Securities and Exchange Commission. 14 November 2012. &quoute;A Resources Guide To The U.S. Foreign Corrupt Practices Act.&quoute; Retrieved from http://www.justice.gov/criminal/fraud/fcpa/guidance/guide.pdf
2) U.S. Department of Justice. &quoute;FPCA and Related Enforcement Actions.&quoute; Accessed on 22 February 2015. Retrieved from http://www.justice.gov/criminal/fraud/fcpa/cases/2014.html
Suggested score:
How common is it for defence acquisition decisions to be based on political influence by selling nations?
Only a small part of DOD procurement is derived from overseas: DoD procurement actions recorded and certified in FPDS-NG during FY 2012 totalled approximately $360 billion. Of that amount, approximately $22 billion or 6.1 percent was expended on purchases from foreign entities. The non-U.S. sources listed on the Stockholm International Peace Institute Arms Transfers Database are all U.S. allies but there is no evidence that these purchases are based on political influence from the supplying countries.
1) Report to Congress on Department of defence Fiscal Year 2012 Purchases from Foreign Entities, July 2013, http://www.acq.osd.mil/dpap/cpic/cp/docs/DoD_FY_2012_Purchases_from_Foreign_Entities_(Approps_July_29_2013).pdf
2) The Washington Post, March 17, 2014, &quoute;For Pentagon, it’s always a tough battle to get Congress to close military bases, facilities,&quoute; http://www.washingtonpost.com/world/national-security/for-pentagon-its-always-a-tough-battle-to-get-congress-to-close-military-bases-facilities/2014/03/17/a7eda064-a887-11e3-8599-ce7295b6851c_print.html
3) Stockholm International Peace Institute Arms Transfers Database, http://armstrade.sipri.org/armstrade/page/trade_register.php
Opinion: Agree
Comment:
Suggested score:
Opinion: Agree
Comment:
Suggested score:
The United States Constitution, section 8, grants Congress the exclusive right to pass legislation and to appropriate funds for defence through the annual Defence Authorization Acts and the Appropriations Acts (the House’s markup of the NDAA is publicly available whereas the Senate’s is not), which also contain legally binding policy and programme authorizations. House and Senate Armed Services Committees independently propose and review defence policy and the defence budget on an annual basis, and the House and Senate Appropriations Committees scrutinise and approve the DOD budgetary requests. While these committees take input from the executive branch into consideration, the ultimate passage of the legislation remains an autonomous decision executed by the entirety of the House of Representatives. The revisions made to the budget through these committees directly affect the military’s spending capabilities for the following year. Spending contrary to the objective specified by congress could lead to legal consequences. The US Congress also has the authority to approve major arms sales: under the Arms Export Control Act, Congress needs to be notified 30 days before any major government-to-government deal is concluded (15 days in case of close allies). It can pass legislation changing or prohibiting the proposed sale. (10)
This is a strong institutional framework, but there is a risk of it being undermined by factors such as intense and well-resourced defence lobbying, shortcomings in oversight of projects which do not deliver on time or exceed costs (as well as budgetary oversight), and the increasingly polarised Congressional partisanship.
The 1947 National Security Act and the 1986 Goldwater-Nichols defence Reorganisation Act require the Secretary of defence to submit annual reports to Congress analysing the expenditures and activities of the DOD and the armed forces. The latter also requires the President to submit an annual report on the United States' National Security Strategy to Congress, as a basis for defence appropriations. While the framework is strong and provides for the ability of the legislature to both provide oversight and influence the national security policies through its legislative and budgetary powers, the implementation does fall short on occasion: for example, the administration tends to prepare the National Security Strategy less frequently than annually. (12-14)
The 2011 Budget Control Act imposes annual ceilings on defence spending (the 2015 cap being $521 billion) in an effort to reduce the deficit and curb spending. However, a significant portion of US military spending, particularly on current military operations and (on occasion) equipment, is funded through the Overseas Contingency Operations (OCO) fund. While it can act both ways - its withdrawal could provide Congress with leverage over the executive - the OCO has been seen as a fund subject to more lax oversight than regular defence funding. (15-17) Moreover, defence spending cuts often become a partisan issue and Congress has been criticised for its reluctance to cut wasteful and ineffective spending programmes (5, 18, 19)
Lobbying by military contractors is significant. defence companies spent approximately $128 million in lobbying in 2014, although this number does not necessarily reflect defence only related lobbying and may include lobbying of other branches of government and on other matters. The amount of money that goes into lobbying Congress on defence spending likely affects the effectiveness of their oversight (particularly on wasteful projects), but it is difficult to determine the extent or the exact impact.
The Project on Government Oversight (POGO) published recommendations for improving congressional oversight, and includes reforms in oversight in the areas of defence and national security. With respect to defence and national security oversight, POGO recommended (among other issues) that Congress reviews spending to eliminate wasteful projects, reform contracting and acquisitions processes to curb wastefulness and improve accountability, increase lobbying disclosure requirements and tighten the revolving door to increase transparency, and require publication of defence contracts, suggesting shortcomings in oversight and budgeting. (5)
Score 3 has been selected to reflect a strong institutional framework and some practical shortcomings in oversight.