Chapter 8. U.S. Department of Defense: A Review of Overseas Building and Infrastructure Efforts

Traditionally, U.S. civilian government agencies, such as DOS and USAID, have dominated the development sector abroad. However, in recent years, the Department of Defense (DOD) has played a more significant role in capacity and infrastructure building in developing countries.[1] From 2002 to 2005, the Pentagon’s budget for official development assistance (ODA) increased from 5.6 percent to 21.7 percent.[2] DOD now accounts for more than 20 percent of U.S. ODA.[3] Examples of DOD ODA projects include the Iraqi Relief and Reconstruction Fund,[4] the Tsunami Relief and Reconstruction Funds,[5] the Global HIV/AIDS initiative,[6]; and Overseas Humanitarian, Disaster, and Civic Aid (OHDACA).[7] DOD also supports other humanitarian aid-related programming outside of ODA through counterterrorism and capacity-building commands such as the Africa Command (AFRICOM).[8] Therefore, it is extremely important to review DOD accessibility standards and practices to ensure that new U.S.-funded infrastructure efforts are accessible to people with disabilities.

The chapter reviews DOD-funded infrastructure efforts and policies to determine the accessibility of newly constructed buildings, transportation systems, information systems, and other forms of infrastructure for people with disabilities. It is essential that newly constructed, DOD-funded infrastructure be accessible beginning with the design stages. When newly constructed infrastructure is built in an accessible manner, it sets a standard in the country for future projects. Additionally, when physical infrastructure is made accessible from the beginning, DOD and other U.S. agencies avoid substantial future costs associated with retrofitting. Accordingly, it is imperative that DOD adhere to accessibility standards and support the building of accessible infrastructure in postconflict and developing countries.

In December 2008, DOD adopted new accessibility standards under the Architectural Barriers Act of 1968 (ABA) for all DOD-funded construction projects.[9] These standards define the requirements that must be “applied during the design, construction, additions to, and alteration of sites, facilities, buildings, and elements to the extent required by regulations issued by federal agencies under the ADA of 1990.”[10] The purpose of the new standards is to ensure that newly constructed facilities are accessible to people with disabilities.[11] Although the standards generally apply to international projects, many overseas projects fall under an exemption and therefore are excluded. For example, “[f]acilities in other countries for which the United States contributes a portion of the construction cost but does not control design criteria (such as NATO-funded facilities) need not comply with these standards,”[12] but the exception goes on to state that “accessibility is recommended if obtainable.”[13] Another exception states, “[f]acilities leased by the United States in other countries need not be accessible pursuant to U.S. law.”[14]

Facility accessibility exceptions laid out in DOD policy memoranda are problematic for various reasons. In programs where the United States is a contributing funder but does not control the design criteria, the language “accessibility is recommended if obtainable” is unlikely to yield accessibility gains. If DOD or any other U.S. agency is contributing funds to new infrastructure, the language should not allow for voluntary compliance, but must require accessibility and, in light of rapid CRPD ratification worldwide, compliance with accessibility standards should be the norm. Further, if a U.S. Government agency is leasing buildings in another country, such buildings should be accessible, or easily made accessible, so that Americans and locals with disabilities can enjoy ready access to the building. Allowing DOD to comply with host country accessibility laws is also unacceptable because many host countries do not have accessibility laws or guidelines and the ones that do are often lacking in comparison to American accessibility laws and policies. For the United States to remain a leader in accessibility standards and their adherence, DOD should adhere to American accessibility standards for its overseas facilities.

As ratification of the CRPD continues at a rapid pace, the inconsistencies in accessibility guidelines should lessen as ratifying countries adopt accessibility laws at the domestic level in line with the CRPD. However, in countries that have not ratified the CRPD, DOD’s policy of compliance with host country laws creates inconsistency in regional accessibility standards. Moreover, given the underdeveloped state of disability law frameworks, adhering to local accessibility standards often means ignoring accessibility altogether.

A further problem in this context is the permissible derogation from accessibility standards during times of emergency. Section F202.6 of the ABA Accessibility Standard for DOD Facilities applies to Federal Government leases and requires that leased buildings or new facilities comply with the ABA guidelines. However, “Buildings or facilities leased for use by officials servicing disasters on a temporary, emergency basis shall not be required to comply with F202.6.”[15] This loophole allows DOD contractors to avoid accessibility during times of temporary emergency or disaster response. Given the vast amount of ODA being apportioned to DOD for implementation, this gaping loophole sets an unacceptable standard of discrimination in times of emergency.

Conclusion

The foregoing review highlights the far-reaching implications of DOD-funded overseas building and infrastructure, a woefully understudied issue that is seriously in need of further research. The findings suggest that DOD waivers are undermining accessibility at the expense of inclusion and without justification. DOD should work to limit the number of waivers and exceptions permitted under its newly adopted ABA Accessibility Standards for DOD Facilities. In addition, DOD should review waivers and exceptions before authorizing them to ensure that they are used only in narrowly defined circumstances and only where necessary. DOD should also provide clear guidance to contractors on the appropriate application of the ABA Accessibility Standards in postconflict and developing countries and work to close the gap that allows contractors to apply for waivers or argue for an exception overseas. These standards must clearly indicate that DOD infrastructure projects in postconflict and developing countries are subject to the same provisions as other DOD infrastructure projects. Finally, DOD should take immediate action to ensure that its funding of living arrangements for the benefit of people with disabilities comports with federal disability-rights policy. To this end, DOD should move to adopt a specific policy that recognizes the need to end institutional bias and related forms of isolation and exclusion and create meaningful and affordable opportunities to receive community-based long-term services.

Footnotes

[1] Stewart Patrick and Kaysie Brown, Center on Global Development, The Pentagon and Global Development: Making Sense of the DoD’s Expanding Role, 3 (2007), http://www.cgdev.org/content/publications/detail/14815/.

[2] Id. at 1.

[3] Id. at 4.

[4] The Iraqi Relief and Reconstruction Fund was established by the U.S. Congress on November 6, 2003. It allocated $18.4 billion to rebuild Iraq’s infrastructure, damaged from years of neglect, sanctions, and war. U.S. Department of Defense, Iraq Rebuilding Shifts from Western Contracts to Iraqis (2007), http://www.defense.gov/News/ NewsArticle.aspx?ID=46592.

[5] The White House, U.S. Support for Earthquake and Tsunami Victims (January 3, 2005), http://georgewbush-whitehouse.archives.gov/infocus/tsunami/.

[6] Raymond W. Copson, Congressional Research Service, RS 21181, HIV/AIDS International Programs: Appropriations, FY 2002–FY 2004 (2003), http://lugar.senate.gov/services/pdf_crs/foreign/Appropriations_HIV_AIDS.pdf; Kaiser Family Foundation, HIV/AIDS Policy Fact Sheet, U.S. Federal Funding for HIV AIDS: The President’s FY 2011 Budget Request (2010), http://www.kff.org/hivaids/upload/7029-06.pdf.

[7] OHDACA funds humanitarian programs that support humanitarian assistance (nonlethal excess property; medical visits; minor construction; repair of roads, schools, clinics; well digging; disaster preparedness); foreign disaster relief and emergency response (logistics, airlift, search and rescue, humanitarian daily rations, plastic sheeting, tents, water, capacity building); and humanitarian mine-related activities (the Humanitarian De-mining Training Center at Fort Leonard Wood, MO, funds deployments outside the Continental United States for de-mining and clearance training for other explosive remnants of war, mine risk education and awareness, medical, safety, organizational management). Defense Security Cooperation Agency, Overseas Humanitarian, Disaster, and Civic Aid Appropriation (2011), http://comptroller.defense.gov/defbudget/fy2011/budget_justification/pdfs/01_Operation_and_Maintenance/O_M_VOL_1_PARTS/OHDACA_FY11.pdf.

[8] AFRICOM is one of six DOD regional military headquarters and was declared a fully unified command on October 1, 2008. AFRICOM has administrative responsibility for U.S. military support to U.S. Government policy in Africa, to include military-to-military relationships with 53 African nations. The other five regional commands and their locations are U.S. Central Command, Tampa, Florida; U.S. European Command, Stuttgart, Germany; U.S. Northern Command, Colorado Springs, Colorado; U.S. Pacific Command, Honolulu, Hawaii; and U.S. Southern Command, Miami, Florida. U.S. Africa Command, http://www.africom.mil/.

[9] United States Access Board, ABA Accessibility Standard for Department of Defense Facilities (2008) [hereafter ABA Accessibility Standard for DOD Facilities], http://www.access-board.gov/ada-aba/aba-standards-dod.cfm.

[10] Id. at 101.1.

[11] Memorandum from deputy secretary of defense, “Dep’t of Def, Access for People with Disabilities” (2008), http://www.access-board.gov/ada-aba/dod-memorandum.htm.

[12] Id.

[13] Id.

[14] Id.

[15] ABA Accessibility Standard for DoD Facilities, § F202.6 (1).

National Council on Disability • 1331 F Street, NW, Suite 850 • Washington, DC 20004