McCaul Letter Demands Blinken Produce Afghanistan Documents Ahead of March 23 Testimony or Face SubpoenaPress Release
Washington, D.C. – Yesterday, House Foreign Affairs Committee Chairman Michael McCaul sent a letter to U.S. Secretary of State Antony Blinken following up on previous requests and emphasizing the need for the State Department to produce requested documents pertaining to the Biden administration’s catastrophic withdrawal from Afghanistan. In the letter, Chairman McCaul stresses that failure to produce these documents ahead of Secretary Blinken’s March 23rd testimony will result in the committee issuing a subpoena.
Yesterday’s letter follows a lengthy series of requests by the committee. On January 12th, Chairman McCaul sent a comprehensive document request on the chaotic and deadly withdrawal – many of the requests in this letter dated back to August 2021. On March 3rd, he sent a follow up letter regarding the department’s ongoing failure to comply with the committee’s requests, demanding the immediate production of three specific priority items and making clear that if the department failed to comply, the committee would proceed with compulsory process. On March 12th, Chairman McCaul stated that he was prepared to issue a subpoena if the department failed to produce these requested documents in advance of Secretary Blinken’s March 23rd testimony before the committee.
“From its broader January 12 request, the Committee identified on January 30 three highly specific immediate priority items that are well-known to the Department,” wrote the chairman. “All of the items specified on March 3 could be produced extremely quickly if they were genuinely prioritized by the Department. The Committee routinely receives highly classified documents and information from the Department on the most sensitive issues confronting U.S. foreign policy, including ongoing threats posed by foreign adversaries. A ‘diligent’ process working in good faith to produce these documents ‘as soon as practicable’ would have produced them long ago.”
The full text of the letter can be found here and below.
Dear Secretary Blinken:
On March 3, 2023, I wrote to you regarding the State Department’s ongoing failure to comply with the Committee’s requests for documents and information concerning the Biden Administration’s disastrous withdrawal from Afghanistan. For the reasons outlined below, it is essential that you produce the items requested in advance of your March 23 testimony before the Committee. Failure to produce these documents will result in the Committee issuing a subpoena to compel their production.
Congress’ Investigative Powers
Congress’ power to conduct oversight and investigations is derived from the Constitution and has been repeatedly affirmed by the United States Supreme Court. In Watkins v. United States, the Court held that the “power of the Congress to conduct investigations is inherent in the legislative process.” In considering Congress’ investigative powers in Barenblatt v. United States, the Supreme Court held that “scope of its power of inquiry … is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”
Specific Basis for the Committee’s Investigation
Pursuant to Rule X of the Rules of the House of Representatives, and pertinent to this investigation, the Committee on Foreign Affairs is delegated legislative and oversight jurisdiction over “[r]elations of the United States with foreign nations generally,” “[d]iplomatic service,” and “[p]rotection of American citizens abroad and expatriation.”
Furthermore, 22 U.S.C. § 2680 states, “The Department of State shall keep the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives fully and currently informed with respect to all activities and responsibilities within the jurisdiction of these committees. Any Federal department, agency, or independent establishment shall furnish any information requested by either such committee relating to any such activity or responsibility.”
On April 14, 2021, President Biden announced an unconditional withdrawal of all U.S. military personnel from Afghanistan. The Biden Administration failed to conduct essential planning and take critical actions necessary to mitigate the likely adverse consequences of the decision to unconditionally withdraw. President Biden and other senior Administration leaders proceeded with the withdrawal in a manner inconsistent with the recommendations of military leaders and the warnings of diplomatic personnel.
The Taliban captured numerous Afghan provincial capitals during the first half of August 2021. On August 14, 2021, U.S. Embassy to Afghanistan Charge d’Affaires Ross Wilson declared a non-combatant evacuation (NEO) from the country. On August 26, 2021, 13 U.S. servicemembers were murdered and 45 injured in a terrorist attack outside Abbey Gate at Hamid Karzai International Airport (HKIA) that also claimed the lives of approximately 170 Afghans. When the NEO concluded on August 30, 2021, hundreds of Americans and tens of thousands Afghan allies who risked their lives to support the United States remained left behind in Afghanistan.
On March 8, 2023, the Committee heard testimony from servicemembers who participated in the NEO and were on the scene of the August 26, 2021 terrorist attack, as well as leaders of volunteer-led efforts to evacuate Americans and Afghan allies. Sergeant Tyler Vargas-Andrews, a Marine badly wounded in the attack, testified “that [t]he withdrawal was a catastrophe, in my opinion, and there was an inexcusable lack of accountability and negligence.” Specialist Aidan Gunderson, an Army medic who responded to the attack, testified, “I want America to know the truth. The Afghanistan withdrawal was an organizational failure at multiple levels” and requested that the Committee “[p]lease consider those 13 [killed in the terrorist attack at Abbey Gate] and me, as you conduct this investigation. Please consider the youth of America who continue to serve and never put them in that position again.”
Multiple witnesses were critical of the State Department’s role in the evacuation. For example, Sergeant Vargas-Andrews testified, “Department of State staff in HKIA would completely shut down processing Afghans every evening and into the morning, leaving ground forces with a nightmare. They did not work in reasonable rotations and very much presented an unwillingness to work in other situations as well… State was not prepared to be in HKIA. In fact, State would not want to deal with the Afghans unable to be processed, weakening the security of the perimeter. State would take us away from our mission to walk Afghans out to meet the fate of the Taliban, condemning them to death.” Camille Mackler, an immigration attorney who assisted Afghans in evacuating and testified at the request of the Committee minority stated, “[o]n the State Department, I think there were many decision failures and systemic failures along the way.”
Over 18 months after the fall of Kabul, numerous key questions about the withdrawal remain unanswered. The Committee has an obligation to investigate how these grievous failures occurred and determine what actions, including potential legislation, are necessary to help prevent a similar catastrophe from occurring again in the future. The Afghanistan withdrawal was identified as a “priority oversight matter” in the Committee’s oversight plan, unanimously agreed to by Members of both parties on February 8, 2023.
Notably, the State Department has touted its purported cooperation with Congress as a reason why it believed it was unnecessary for it to comply as legally mandated with oversight by the Special Inspector General for Afghanistan Reconstruction (SIGAR). In April 2022, Acting Legal Adviser Richard C. Visek wrote, “[m]any of the requests for information from SIGAR address topics that are currently the subject of oversight by other investigative bodies with whom our agencies are already cooperating, including congressional committees…” In contrast to this representation, the State Department has failed to comply with the Committee’s document requests, as detailed below.
The State Department’s Ongoing Failure to Comply with the Committee’s Requests
On January 12, 2023, the Committee renewed and updated longstanding requests for documents and information regarding the Afghanistan withdrawal, with a deadline of January 26, 2023. Many of the requests in this letter were originally issued during the 117th Congress in an August 20, 2021 letter from the then-minority. These August 2021 requests, as well as others, went unsatisfied and were then renewed in an October 14, 2022 letter, which additionally requested the preservation of documents.
Soon after the issuance of the January 12 letter, Committee staff communicated to the Department their expectation that the Department would submit a substantial initial production by the January 26 deadline, including in a January 19, 2023 meeting between Committee staff and Department officials.
On January 26, 2023, the Department provided a 218-page initial production consisting of documents related to Afghanistan responsive to Freedom of Information Act (FOIA) requests. Of the 218 pages produced, 88 consisted of a previously embargoed version of the Afghanistan Study Group’s Final Report – a document released to the public on February 3, 2021. Most of the remaining pages included extensive redactions that severely limit their usability and value.
Many of the redactions in this production appear to cover answers prepared for the question-and-answer portion of documents containing talking points for press engagements. That is to say, the Department redacted information from Congress that it was prepared to share with the public at the time the documents were generated. Furthermore, the Department failed to provide any legal justification or privilege log for these extensive redactions. #########
On January 30, 2023, in response to a request made by Department officials in the January 19 meeting, Committee staff provided the Department with a list of initial priority items for production. Department officials had indicated that the list of priorities would assist the Department in producing the documents of greatest interest to the Committee. To further assist the Department, in the e-mail transmitting this list of initial priorities, Committee staff identified three specific items from the list that they believed the Department could easily and quickly identify and produce. Committee staff requested that the Department provide these three priority items by February 7, 2023.
These three items included: the Dissent Channel cable reportedly sent on July 13, 2021, by 23 State Department officials and the Department’s response to it; the After-Action Report prepared under Ambassador Daniel Smith; and two iterations of U.S. Embassy Kabul’s Emergency Action Plan (EAP) (The one in existence on January 1, 2021, and the final iteration of the plan before the Embassy’s closure). The Department failed to produce any of these documents by the deadline.
On February 10, 2023, the Department provided a second production consisting of the texts of unclassified opening statements from a June 15, 2022 classified briefing on Afghanistan, totaling 18 pages. These texts were initially requested at the June 15 briefing, and then again on June 21, 2022, and in the October 14, 2022 letter. This is the only item from the Committee’s January 30 list of initial priorities that has been produced to date.
In a February 14, 2023 meeting, Committee staff and the State Department officials responsible for coordinating the Department’s response to congressional oversight discussed the status of the three specific items prioritized by the Committee as well as others. Committee staff reaffirmed that the Dissent Channel cable and response remained its top priority request. The Department officials failed to indicate when the Department intended to produce these documents or provide any legal justification for withholding them. Committee staff requested clarification of the Department’s position on the cable and response. The Department officials stated that Ambassador Smith’s After-Action Report had yet to be finalized. They were unclear on its status and timeline for release, but indicated it was undergoing a Secretary-level review. Committee staff requested additional information on the status of the report. The Department officials were unable or unwilling to identify the custodian of the After-Action Report. The Department officials indicated the EAPs would be provided in an early production. The Department has failed to provide any additional documents or information on the status of these three specific items since the February 14 meeting.
In the February 14 meeting, the State Department officials characterized the Department’s performance in responding to the Committee’s oversight as unprecedented in its efficiency and that Committee staff should be grateful for having received any documents after a month. They also asserted that it was exceptional for State to respond at all to any requests before the Committee’s organizing meeting. At this time, the Department had produced a total of only 236 pages of documents, many heavily redacted. As a result, such statements were unreasonable by any objective standard and raised serious concerns regarding the Department’s willingness to comply with Committee requests in good faith.
On March 3, 2023, the Committee sent a follow-up letter regarding the Department’s continued failure to comply with the Committee’s document request. The letter demanded the immediate production of the three specified priority items, warning that the Committee would proceed with compulsory process in the event the Department’s noncompliance persisted. The Department failed to produce any of the requested documents or otherwise respond to the March 3 letter.
On March 12, 2023, I publicly stated that if you (Secretary Blinken) failed to comply with the Committee’s document request – specifically the three items requested in the March 3 letter – by the date of your planned March 23 testimony before the Committee, that I would be prepared to issue a document subpoena. On March 13, Committee staff e-mailed Department officials to ensure they were aware of this public statement and further emphasize the need for the Department to produce these documents. The Department’s Special Counsel responsible for addressing congressional oversight requests replied:
The State Department remains committed to work with HFAC on this request, and is diligently collecting, reviewing, and processing documents responsive to the Committee’s request. As explained in our February 14th conversation, the volume and breadth of the committee’s requests – as well as the highly sensitive nature of many of the requested documents — require significant time and resources on the part of the Department, as well as interagency consultations. The Department is working continuously and diligently on the requests, and is committed to producing a set of documents responsive to the requests delineated in the Committee’s January 30 priority list as soon as practicable.
A subsequent response on March 14 stated:
The State Department employs a rigorous process to review documents and ensure that documents containing sensitive information which could harm our national security, jeopardize our international relationships, or put our women and men working around the world in harm’s way, are adequately protected. For those reasons, unfortunately the process means few things are produced “with ease” and instead takes a bit more time. We appreciate your continued patience as we work to process the documents for production in the near future.
These responses are unacceptable and unreasonable. From its broader January 12 request, the Committee identified on January 30 three highly specific immediate priority items that are well-known to the Department. All of the items specified on March 3 could be produced extremely quickly if they were genuinely prioritized by the Department. The Committee routinely receives highly classified documents and information from the Department on the most sensitive issues confronting U.S. foreign policy, including ongoing threats posed by foreign adversaries. A “diligent” process working in good faith to produce these documents “as soon as practicable” would have produced them long ago.
The Documents Requested by the Committee are Essential to its Investigation
Each of the three priority items requested by the Committee is essential to its investigation of the Administration’s withdrawal from Afghanistan. The Committee must obtain all three of these items without further delay.
The Dissent Channel Cable and Response
The State Department’s Foreign Affairs Manual (FAM) states:
The State Department has a strong interest in facilitating open, creative, and uncensored dialogue on substantive foreign policy issues within the professional foreign affairs community, and a responsibility to foster an atmosphere supportive of such dialogue, including the opportunity to offer alternative or dissenting opinions without fear of penalty. The Dissent Channel was created to allow its users the opportunity to bring dissenting or alternative views on substantive foreign policy issues, when such views cannot be communicated in a full and timely manner through regular operating channels or procedures, to the attention of the Secretary of State and other senior State Department officials in a manner which protects the author from any penalty, reprisal, or recrimination.
According to the FAM, “the Secretary’s Policy Planning Staff (S/P) is responsible for management of the Dissent Channel, including receipt, storage, distribution, and acknowledgment of all Dissent Channel messages received, and drafting, clearance, and timely transmission of all Dissent Channel responses.”
On July 13, 2021, 23 U.S. Embassy officials submitted a Dissent Channel cable which reportedly “warned of rapid territorial gains by the Taliban and the subsequent collapse of Afghan security forces, and offered recommendations on ways to mitigate the crisis and speed up an evacuation.”
The Dissent Channel cable provides key contemporaneous evidence from U.S. officials on the ground in Afghanistan. The Department’s formal response similarly offers critical insight into Department leadership’s view of these concerns and what actions they took to address them. As such, these documents are critical and material to the Committee’s investigation, and it is imperative that the State Department produce them in complete and unredacted form.
Notably, the Dissent Channel cable was first requested by then-Chairman Gregory Meeks in an August 21, 2021 letter.
Chairman Meeks issued the request with a three-day deadline of August 24, 2021 – a testament to the document’s significance and the request’s urgency. However, this longstanding Committee request, issued under a Chairman’s signature by two successive Chairmen of different parties, remains unfulfilled after nearly 18 months. While the State Department has expressed some general reluctance to produce this item, it has failed to provide any legal justification for having withheld it from Congress to date.
Ambassador Smith’s After-Action Report
In December 2021, a memo from you (Secretary Blinken) to State Department employees indicated that the Department would conduct a review of the Afghanistan withdrawal under the direction of Ambassador Daniel Smith “to seek to assess the lessons learned from our engagement in Afghanistan and provide recommendations going forward.” It was reportedly characterized as a “90-Day Review.” A State Department spokesperson stated at the time, “[w]e anticipate the final report will be classified — so as to be as detailed as possible in its findings — but, as with all endeavors, we will be as transparent as possible.” In August 2022, State Department spokesman Ned Price stated, “[w]e are finalizing elements of that report.”
Despite the Department’s stated commitment to transparency, it has yet to make this review available to the Committee. The stalled release and ambiguous status of the review are inexplicable given that it was known to be in the process of finalization more than six months ago.
The After-Action Report will shed crucial light on the State Department’s role in the withdrawal through its own internal examination and assessment of its actions. The interest in this document is bipartisan. In the February 14 meeting between Committee staff and Department officials, the Committee minority expressed a strong interest in the After-Action Report. Obtaining the After-Action report is essential to the Committee’s investigation, and it is imperative that the State Department produce a current draft in complete and unredacted form without further delay, including all associated documents such as exhibits and appendices.
U.S. Embassy Kabul Emergency Action Plan
According to the State Department’s Foreign Affairs Manual:
The Emergency Action Committee (EAC) is established by the [Chief of Mission] at every post, and represents all sections and agencies (12 FAH-1 H-230). The EAC’s security-related responsibilities are outlined in 12 FAH-1 H-232. The EAC must help develop an Emergency Action Plan (EAP), which outlines procedures for response to foreseeable contingencies, per 12 FAH-1 H-030, and execute the relevant elements of a post’s plan as required in an emergency (12 FAH-1 H-030).
The EAP for U.S. Embassy Kabul will shed light on the Department’s preexisting plans for evacuating the embassy, their sufficiency, and to what extent they were adhered to in the execution of the emergency evacuation. The Committee requested two iterations of U.S. Embassy Kabul’s EAP as an immediate priority: the one in place on January 1, 2021 and the final iteration in place prior to the embassy’s closure. These documents should be easy to identify and produce. Obtaining these iterations of the EAP is essential to the Committee’s investigation, and it is imperative that the State Department produce them in complete and unredacted form without further delay.
The Committee’s Document Request
The Committee reiterates the following requests for documents and information:
- The Dissent Channel cable reportedly sent on July 13, 2021, by 23 State Department officials and the Department’s response to it;
- A current draft of the After-Action Report prepared under Ambassador Daniel Smith (including any associated documents such as exhibits or appendices); and
- Two iterations of U.S. Embassy Kabul’s Emergency Action Plan (EAP): The one in existence on January 1, 2021, and the final iteration of the plan before the Embassy’s closure.
Please provide all documents responsive to this request no later than 5:00 PM EST on March 22, 2023 in complete and unredacted form. In the event the Department fails to comply with this request, the Committee will proceed with compulsory process.
I look forward to your prompt reply.