Questions for the Record Submitted to Legal Adviser Nominee Jennifer Newstead by Senator Todd Young (#1) Senate Foreign Relations Committee October 18, 2017 Question: In your responses to my questions for the record, you wrote the following: “Based only on the facts listed above, which include descriptions of actions which have to date prevented delivery of the four replacement cranes to Hudaydah, and the plain language of the provision, it is my judgment that there is a substantial question whether the responsible parties have “prohibited” or “restricted” the delivery of United States humanitarian assistance under the statute. If confirmed as Legal Adviser, I would want to consider additional information before reaching a final legal view and providing advice to policymakers on this issue. Relevant considerations could include, among other things, whether legitimate concerns exist regarding the control of the Hudaydah port by the Houthis and related security risks, or risks that delivery of aid through the port would be compromised.” This response raises several questions. If confirmed, regarding your comment on “related security risks”, I encourage you to examine the logic of an argument that says the Houthis would destroy cranes in a port they control and that are being used to facilitate the delivery of food and medicine for people in areas they control. I believe the only material security risk to the cranes would be another attack on the port by the Saudi-led coalition. You write that “risks that delivery of aid through the port would be compromised” would be a relevant consideration. Are you aware of the following testimony by Mr. Matthew Nims, the acting director of the Office of Food for Peace at the United States Agency for International Development on July 18? He said the following (emphasis added): “First off, the U.S. government and USAID and particular in my office, you know, takes any allegations of the diversion of humanitarian activities very seriously. And this is paramount in all of our operations. You know, this humanitarian need as we -- this humanitarian need is really been held off by our continued operations that are been crucial through the ports as well as our partners. In this situation we have taken this very seriously, we have investigated this through our partners, we've investigated this to a degree on our own and we have had no evidence of any large scale humanitarian diversions occurring at the port at all. We are able to say this because of the integrity of our partners and because of the methods that they use as well as our own methods of third-party monitoring and other systems that we employ to ensure that this food gets to where it's supposed to go.” 1 If confirmed, I encourage your office to not take assertions by the Saudis and others regarding the diversion of humanitarian aid at the port of Hodeidah at face value and instead check with the experts at USAID and the World Food Programme. Answer: I appreciate your additional perspectives on this question and, if confirmed, I commit, with the benefit of these perspectives, to engaging closely with my colleagues at the Department and at USAID on this important issue. I also believe it is important to take account of the information and perspectives of non-governmental organizations including the World Food Programme, and would do so if confirmed. Finally, I commit to reviewing this issue in depth, if confirmed, and meeting with you within 30 days of my taking up the position of Legal Adviser to share my assessments, consistent with my professional obligations to the Department. 2 Questions for the Record Submitted to Legal Adviser Nominee Jennifer Newstead by Senator Todd Young (#2) Senate Foreign Relations Committee October 18, 2017 Question: You also wrote the following (emphasis added): “It would also be relevant in my view to consider the broader circumstances involving the provision of U.S. foreign assistance to Yemen, such as whether the act of preventing delivery of the cranes has effectively prevented the delivery of all U.S. foreign assistance to address the crisis, or whether other means of delivering such aid are operating; and the role of the Saudi government in such efforts.” Why is the standard “effectively prevented the delivery of all U.S. foreign assistance”? You wrote, “If Saudi Arabia has directly or indirectly restricted the transport or delivery of U.S. humanitarian assistance, absent a determination under the statute, then U.S. assistance under the Foreign Assistance Act or the Arms Export Control Act would be restricted under this provision.” Yet, you then establish a standard of preventing the delivery of “all U.S. foreign assistance”? How do you explain this discrepancy? Answer: Thank you for the opportunity to address your concern. As indicated in my response to a previous question, and as you note above, the statutory standard is whether the transport or delivery of U.S. humanitarian assistance has been directly or indirectly prohibited or restricted by any government. The statutory language does not include a requirement that “all” foreign assistance be directly or indirectly restricted. In the portion of my answer you identify above, I was addressing one of many possible factual circumstances which, if true, could be relevant to analyzing whether the statutory standard has been met. However, I did not intend to suggest that the statute could only be triggered if there was a determination that “all” humanitarian assistance has been prevented. In my view, the statute itself, in setting the standard for triggering the 3 restriction, does not include a requirement that “all” humanitarian assistance be directly or indirectly restricted. As indicated in my response to a prior question, an assessment whether the assistance restriction under section 620I of the Foreign Assistance Act has been triggered is a highly factspecific inquiry. If confirmed, I would make it a priority to study this issue in greater depth. I commit to reviewing this issue fully, if confirmed, and meeting with you within 30 days of my taking up the position of Legal Adviser to share my assessments, consistent with my professional obligations to the Department. 4 Questions for the Record Submitted to Legal Adviser Nominee Jennifer Newstead by Senator Todd Young (#3) Senate Foreign Relations Committee October 18, 2017 Question: Consistent with your initial responses and your reading of the statute, do you re-affirm that even an indirect Saudi restriction of the transport or delivery of U.S. assistance would be enough to trigger 22 U.S. Code § 2378–1? Do you agree that the other factors you raised regarding Saudi actions will not change this initial determination and the applicability of 22 U.S. Code § 2378–1, but might inform a subsequent Presidential national security interest exception? Answer: Yes, I re-affirm, consistent with my initial responses, that section 620I prohibits provision of assistance under the FAA or the Arms Export Control Act (AECA) to a country when it is made known to the President (or the Secretary, under delegated authority) that the government of such country prohibits or otherwise restricts, directly or indirectly, the transport or delivery of U.S. humanitarian assistance. It is my view that if Saudi Arabia has directly or indirectly restricted the transport or delivery of U.S. humanitarian assistance, then U.S. assistance under the Foreign Assistance Act or the Arms Export Control Act would be restricted under this provision. I also understand that the provision includes a waiver authority by which assistance may be provided to the country under such circumstances if there is a determination that to do so is in the national interest, and that determination is notified to the relevant Congressional committees. I commit to reviewing this issue fully, if confirmed, and meeting with you within 30 days of my taking up the position of Legal Adviser to share my assessments, consistent with my professional obligations to the Department. 5 Questions for the Record Submitted to Legal Adviser Nominee Jennifer Newstead by Senator Todd Young (#4) Senate Foreign Relations Committee October 18, 2017 Question: If the July 18, 2017, testimony by witnesses from USAID and the World Food Programme is accurate, would you agree that the Saudi-led coalition has at least indirectly restricted the transport or delivery of U.S. humanitarian assistance in Yemen? Answer: As indicated in my responses to previous questions, an assessment of whether the assistance restriction under section 620I of the Foreign Assistance Act has been triggered is a highly fact-specific inquiry. In my view, certain statements made in that hearing would, if accurate, raise a substantial question whether the responsible parties have indirectly restricted the transport or delivery of United States humanitarian assistance under the statute. As a nominee, I have not had the opportunity to consider the full range of classified and unclassified information available to the Department on this issue, or to consider how the Department has previously interpreted and applied Section 620I. If confirmed, I would make it a priority to study this issue in greater depth, and would certainly consider the testimony of the witnesses at the July 18, 2017 hearing as part of that analysis. I commit to reviewing this issue fully, if confirmed, and meeting with you within 30 days of my taking up the position of Legal Adviser to share my assessments, consistent with my professional obligations to the Department. 6