New Details about Concerns over Civilian Casualties and Secretary Pompeo’s Refusal to Cooperate with Inspector General’s Probe
Washington—Representative Eliot L. Engel, Chairman of the House Committee on Foreign Affairs, today released an affidavit submitted to the Committee by Deputy Assistant Secretary of State Michael F. Miller as part of the Committee’s investigation into the firing of former State Department Inspector General Steve Linick. Mr. Miller, a career official in the Bureau of Political Military Affairs, responded to a congressional subpoena and provided crucial testimony regarding Secretary of State Mike Pompeo’s phony “emergency” declaration in 2019 in order to sell lethal weaponry to Gulf countries. Mr. Miller confirms in his affidavit that the Secretary pushed ahead with the plan even though the State Department’s own lawyers had warned that U.S. officials could themselves face war crimes liability in light of the Saudis’ demonstrated—and worsening—track record of bombing civilians in Yemen.
Today, the Committee also released new information received from the State Department Office of Inspector General (OIG) regarding the OIG’s probe into the arms sales case. The Committee’s investigation had already found that the OIG requested an interview with Secretary Pompeo on this matter. In advance of the interview, OIG submitted a list of topics that they wanted to ask Secretary Pompeo about, but at a September 16, 2020 hearing of the Committee on Foreign Affairs, Department officials repeatedly refused to reveal what those topics were. Ultimately, Secretary Pompeo refused to sit for an interview. A letter from OIG to Chairman Engel, released today, confirms that one of the topics Secretary Pompeo was so keen to avoid discussing was his own knowledge about civilian casualties tied to the sale of such weapons to the Saudis and Emiratis.
Chairman Engel released the following statement:
“I thank Mr. Miller for complying with a lawful subpoena and providing information about Secretary Pompeo’s scheme to go around Congress and push through more than $8 billion in arms sales to Gulf countries last year. His affidavit provides valuable new information about one of the key questions that has hung over this entire fiasco: were officials aware that, according to the Department’s own legal analysis, they could be held personally liable for involvement in weapons sales that they knew could result in civilian casualties? We received Mr. Miller’s affidavit just as the Committee had finally learned that OIG wanted to ask Secretary Pompeo about civilian casualties in an interview that Secretary Pompeo ultimately refused to give. It’s becoming clearer and clearer to me that Secretary Pompeo was so driven to get these weapons out the door that he not only abused the law and ignored Congress’s concerns about civilian casualties, but he also ignored the Department’s own warnings that he and those who work for him could be implicated in war crimes by fueling the slaughter of civilians in Yemen.
“I call upon the State Department to publicly confirm that it will retain all records mandated under the law, including records related to employees and actions under investigation by Congress. Congress has been forced to pursue multiple investigations of State Department activity under the Trump Administration, including the 2019 ‘emergency’ declaration to sell precision-guided munitions to Saudi Arabia and Secretary Pompeo’s use of State Department resources for his personal and political benefit, and the Department must comply with the law to maintain all records related to these and other?potential violations.
“I reminded the State Department of this obligation to preserve records in letters dated November 10 from myself and seven other House Chairs. The Committee also urges the incoming Biden Administration to make such documents available to the Committee as soon as possible after President-elect Biden takes office.
“Secretary Pompeo and those around him will soon leave office, but their actions will not be forgotten or swept under the rug. The truth will come out.”
Key Highlights from Mr. Miller’s Affidavit
Mr. Miller writes that: “[t]here was an analysis produced by the Office of the Legal Advisor in the 2016 timeframe that served as the foundational document for considering the Law of Armed Conflict in connection with the continued sale of weapons to Saudi Arabia.” This appears to refer to the same memo about which the New York Times reported in late September, when it wrote:
the legal office reached the alarming conclusion that it put in writing in a memo in 2016: American officials, including the secretary of state, could be charged with war crimes for their role in arming the Saudi coalition.
Mr. Miller’s affidavit also confirms, as previous witnesses have done, that the architect of Secretary Pompeo’s plan to ignore both congress and international law was Marik String, then the acting head official in the Bureau of Political-Military Affairs, now the State Department’s acting Legal Adviser. Mr. Miller revealed that Mr. String raised the idea of the emergency declaration with him on April 3, 2019, adding more evidence to the concern that Assistant Secretary of State for Political-Military Affairs Clarke Cooper lied to Congress when he testified that the supposed “emergency” arose between May 21 and May 24 of 2019. On the same day the “emergency” was declared, Secretary Pompeo promoted Mr. String to be the State Department’s top lawyer, making him arguably the least experienced attorney to ever hold that position, and raising questions about whether he was placed in that role to be a yes-man, rather than what the Office of the Legal Adviser demands: the nation’s top international law practitioner.
When Mr. String appeared before the Foreign Affairs Committee on September 16, he was asked by Representative Tom Malinowski whether it was “still the view of the Office of the Legal Adviser that State Department officials potentially face personal legal liability if they provide weapons” to Saudi Arabia. Mr. String refused to answer, but never claimed not to know. Mr. Miller’s affidavit makes the answer clear that the 2016 memo warning of U.S. war crimes liability “carried over into the Trump Administration . . . was never rescinded and remains the most authoritative legal assessment of the matter.” In other words, the legal analysis didn’t change, but Secretary Pompeo and Mr. String ignored it.
In light of the guidance from the Legal Adviser’s Office, Department officials responsible for arms sales sought updated advice on whether they could have personal legal exposure if they sold the Saudis these weapons. And so, as Mr. Miller notes, they asked the Legal Adviser’s Office “whether the formal 2016 legal memo should be updated in light of the passing of time and the continuation of the Saudi-led coalition’s campaign in Yemen.” He also notes that the memo “was most likely a topic of attention during the run-up to the decision to move forward with the Emergency Declaration” that Secretary Pompeo demanded. Mr. Miller wrote in his affidavit that, even as civilian casualties were worsening, including the Saudis’ 2018 bombing of a school bus that killed 20 children, “it was determined that an updated formal memo was not required.” The State Department essentially told its own officials that the Department would offer no further guidance on whether following Secretary Pompeo’s directive to sell these weapons might be illegal.
Notably, Mr. Miller’s affidavit does not say who made the determination not to supply updated legal advice. However, certain officials in the Office of the Legal Adviser have engaged in highly questionable behavior around this matter, such as Marik String personally pressuring former IG Linick to drop a probe into the Saudi Arms deal, which may have violated legal ethics rules. Moreover, State Department attorneys who were involved in the emergency declaration itself demanded unprecedented redaction of the Inspector General’s Report and tried to prevent the Foreign Affairs Committee from investigating the arms sales issue further.
New Information about the OIG’s Probe into the Emergency Declaration
With respect to the Inspector General’s report on the emergency declaration, Mr. Linick testified that he specifically told Mr. String, then the acting Legal Adviser, that OIG wanted to personally interview Secretary Pompeo as part of its investigation of the Saudi arms sales. Mr. Linick testified that Secretary Pompeo eventually agreed, but then backed out and refused after Mr. Linick insisted on the standard, commonsense practice of having a witness present during the interview.
At the September 16 hearing, Representative Ted Deutch asked both Mr. String and Under Secretary for Management a very simple question: what did the OIG want to ask Secretary Pompeo about? Under Secretary Bulatao, one of Secretary Pompeo’s “longest best friends in the whole world,” claimed not to know, even though he had been directly involved in negotiations with OIG. Mr. String did not claim ignorance, but refused to answer Rep. Deutch’s simple question of whether one of the topics OIG wanted to discuss was the civilian casualties being caused by the Saudis using U.S. weapons.
It turns out that the answer was “yes.” The Committee has learned from the Office of Inspector General that the OIG sought, among other things, to ask about “the Secretary’s awareness of the status of efforts to assess and mitigate risk of civilian casualties.” Instead of answering those questions, Secretary Pompeo had Mr. String and Mr. Bulatao try to shut down the investigation and ultimately asked President Trump to fire the Inspector General.
This is not the first time that Mike Pompeo has bullied his lawyers and made false claims to justify his provocative actions in the Middle East. In January of this year, Mr. Pompeo claimed that the killing of Iranian General Qassem Soleimani was legally justified because it was necessary to prevent an imminent attack on U.S. personnel and assets. But the legal rationale submitted to Congress in February shows this was untrue; the report makes no mention at all of imminence.
Most troubling, recent reporting warns that President Trump is now contemplating a military strike on Iran before he leaves office on January 20. But in June of last year, the State Department Legal Adviser’s Office acknowledged that it lacked congressional authorization for such a strike.
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