Several nonprofit organizations submitted comments on Sep. 30, 2013 urging the United States Agency for International Development (USAID) to re-think its proposed pilot program requiring nonprofits that apply for grants to collect data on their board members and key staff. USAID would use the program, known as the Partner Vetting System (PVS), to check the biographical information collected against intelligence databases. The commenters argue that this would have a significant impact on operations, including damaging the independence of nongovernmental organizations (NGOs), putting aid workers in danger and creating administrative burdens.
The Charity & Security Network’s (CSN) comments said that; “the PVS pilot has the potential to erode the overall operating environment for international programs of all kinds. We question the need for PVS, and believe there are simpler and more effective ways to achieve its stated goal of protecting U.S. foreign assistance resources from being diverted or benefitting terrorists.”
Concerns addressed by CSN, as well as other commenters, include:
Invasion of Privacy
The PVS pilot requires that all applicants for USAID grants and their local partners will need to collect information from “key individuals,” defined as board members, staff leadership and staff involved in program operation. This broad data collection is particularly concerning, because little is known about what protections will be in place to prevent the data from being misused. According to the ACLU’s comments, “there is no information for how long USAID will store the information, whether the data will be scrubbed, and under what criteria and timeline.”
There is also concern about the lists that the government will use to check the data against once it is collected. The Terrorist Screening Center (TSC) databases are known to have many inaccuracies in its 1.1 million entries. It is possible that innocent individuals, such as those with a similar name to a terrorist, could be included in the TSC. A false positive on a key individual could damage and delay USAID programs.
Additionally, the ACLU’s comments highlighted that “there is no assurance that the [terrorist databases] (or other government agencies) will not store information about individuals who UASID vets. Since TSC shares information with other agencies and foreign governments, individuals who submit their personal data have reason to be concerned about the privacy of their information.”
CSN’s comments conclude that the over breadth of that data collected and the lack of specifics on how the data will be used “moves PVS away from its purpose and towards becoming a surveillance program.”
Undermining NGO Independence and Neutrality
Protecting independence and neutrality is a central concern for humanitarian organizations working in complex conflict zones. Many worry that the data collection required by PVS will damage these aspects, and put humanitarian programs and workers in danger.
According to InterAction’s comments, “NGOs share knowledge, information and experience with local groups and individuals in different countries….To effectively do so, they must maintain their independence, impartiality and neutrality.” But, “in many highly polarized political environments…NGOs can only successfully engage in their programs, partner with local entities, and serve local populations if they are not perceived as gathering information for the U.S. government.”
In addition, security concerns for nonprofits are very real. Comments from the Mennonite Central Committee warned that the “primary security protection for NGOs…derives from the support and relationships that we have built over the years in local communities. Undermining this trust will make our work much more difficult to carry out, and can also lead to increased security concerns in areas of high risk.”
Impacts on Humanitarian Action
In complex humanitarian crises, there is often a need for nonprofits to move quickly in order to get aid to civilians most in need. There are also many situations in which conflicts of a political nature, such as an oppressive regime or transitioning democracy, necessitate a high degree of discretion for aid workers involved. The PVS proposed rule, however, does not currently include any provisions that would allow for vetting to be suspended in the case of a humanitarian crisis or in cases where the identity of workers on the ground must be protected.
“In a humanitarian emergency, when rapid and mass mobilizations are essential to providing lifesaving support to large populations, vetting determination—or the determination of whether vetting should apply in the first instance—will significantly delay the delivery of lifesaving support,” said InterAction’s comments. Their comments went on to urge that a formal process be developed to support this, rather than an ad hoc process, such as that used in Somalia during the 2011 famine.
Those working in democracy and human rights fields also require additional consideration. “The staff of NGOs who engage in efforts to develop civil society, democratic norms, or who work In human rights are at particular risk—and their programs are at particular risk of being eviscerated—if they are perceived as having ties to foreign governments and intelligence efforts.”
Lack of Due Process
Serious due process concerns have also arisen for those who do not pass vetting under PVS. According to comments from the Constitution Project, “the proposed rule fails to require the vetting official to provide a detailed statement of reasons that an applicant has not passed vetting, sufficient for the applicant to understand what written explanation, legal documentation or other written material may be relevant to provide for his or her reconsideration.”
Furthermore, as the ACLU’s comments point out, “there is no definition [in the proposed rule] for what is considered an ‘affiliation’ or ‘linkage’ to terrorism, or who is considered a ‘supporter…’” This leaves the door open for the government to reject an individual based on secret information, while having no obligation to give reasoning, and offering little opportunity for the individual to contest the determination.
Beyond being a violation of fundamental rights and having the potential to delay humanitarian programs, the lack of due process can also harm the associational rights of those who do not pass vetting. “Being denied a USAID award on the basis of alleged association with terrorism (no matter how attenuated or unsupported) can seriously damage applicants’ standing with the public and associations in their community…” said the ACLU comments. It can also have a “secondary effect of discouraging private donors, depriving the organization of the resources it needs to carry out non-USAID activities.”
Many of the concerns listed above would have the compounded effect of creating a climate in which humanitarian groups are viewed with suspicion abroad. This suspicion will not only impact groups receiving USAID funds, but all civil society organizations working in complex conflict zones. Both MCC and Oxfam America, organizations that do not receive USAID funding, cited concerns that their operations would be damaged by the negative perception of humanitarians becoming arms of the U.S. government.
Oxfam America’s comments expressed concern that “organizations could conclude that that PVS represents an undue politicization of aid and, in conflict disaster settings, a violation of humanitarian principles.” This could lead some to forego USAID funding altogether. Oxfam America also warns that is could cause local partner organizations to choose only to work with non-USAID funded organizations for “fear that sharing their personal information with the U.S. government may ultimately lead to abuse, potentially by their own governments.”
The lack of engagement and cooperation would, in-turn, further harm humanitarian programs. “NGOs can only implement USAID programs if they are able to collaborate with local partners. Moreover, much of the assistance that local partners provide reaches otherwise inaccessible populations, many of whom need our assistance most,” argued InterAction’s comments.
Uncertainty on Pilot Evaluation Criteria
Part of the stated purpose of the pilot program is for USAID to determine whether or not PVS is the best way to achieve the goal of protecting U.S. foreign assistance resources while minimizing the impact on its grantees. CSN’s comments noted that the proposed rule does not lay out sufficient information to ensure a professional and impartial evaluation of the program. CSN said the final rule “should state what USAID hopes to learn, how the program design will be evaluated, whether that evaluation will be performed by an independent and qualified evaluator, what questions are being asked, the what criteria will be used to measure key factors and what data will be gathered to make those measurements.
Oxfam America’s comments also addressed this issue. It said the “PVS pilot program must be assessed according to a.) its effect on the number and quality of local and national NGO bids for direct assistance awards and sub-contracts in pilot countries; b.) its effect on local and national NGO staff retention rates in pilot countries; and c.) its impact on the diversion of resources to individuals engaged in or associated with terrorism compared to existing due diligence programs.”
The intentions of PVS—preventing USAID money from getting into the hands of terrorists—are good ones. However, the program as currently designed fails to take into account the need for privacy, independence, cooperation and flexibility in the NGO sector. USAID should heed the comments it receives, and work with the nonprofit community to create new rules that help prevent terrorist financing, while also supporting civil society action.
During the 2013 United Nations General Assembly, President Obama chaired a panel on fostering global civil society engagement. He expressed support for civil society as an agent of good and condemned governments that “are passing laws specifically to stile civil society.” Yet PVS represents a program that could do just that here in the U.S. As the Constitution Project’s comments concluded, PVS must be aligned “with the president’s civil society initiative and foreign policy goals…the United States should not be seen as forcing the same restrictions on groups that it has been so helpfully advocating against elsewhere.”