NSDD-38 and Staffing the Mission
How NSDD-38 governs the size and composition of U.S. missions abroad, and how chiefs of mission exercise control over interagency staffing.
The Statutory and Presidential Basis for COM Authority
National Security Decision Directive 38 (NSDD-38), signed by President Ronald Reagan on June 2, 1982, codifies the chief of mission's authority over the size, composition, and mandate of any U.S. government executive branch presence at an overseas post. NSDD-38 operationalizes a power that originates higher in the legal hierarchy: Section 207 of the Foreign Service Act of 1980 (22 U.S.C. § 3927), which provides that the chief of mission to a foreign country "shall have full responsibility for the direction, coordination, and supervision of all United States Government executive branch employees in that country," excepting only personnel under the command of a U.S. area military commander and those on the staff of an international organization. The President's letter of instruction to each ambassador, reissued at the start of every administration, reaffirms this grant.
NSDD-38 is the procedural mechanism by which that statutory authority is exercised over staffing decisions. Any U.S. executive branch agency — Department of Defense, Department of Justice, Department of Commerce, Department of Homeland Security, Department of Agriculture, the intelligence community, and dozens of others — that wishes to establish, modify, or eliminate a position at a U.S. mission abroad must submit a formal NSDD-38 request to the chief of mission. The COM may approve, deny, or approve with conditions. There is no appeal to Washington; the determination is the ambassador's alone, subject only to the President's own intervention.
What an NSDD-38 Request Contains
A properly constructed NSDD-38 package, transmitted through the Department of State's Bureau of Management Strategy and Solutions (M/SS) and the relevant regional bureau, identifies the proposed position by title, grade, and agency; specifies whether the incumbent will be a U.S. direct hire, an eligible family member, a locally employed staff member, or a contractor; quantifies the International Cooperative Administrative Support Services (ICASS) costs and Capital Security Cost Sharing (CSCS) charges the position will incur; describes the substantive mission and reporting chain; and identifies office space and residential housing requirements. The Capital Security Cost Sharing program, established under the Secure Embassy Construction and Counterterrorism Act of 1999 following the August 1998 East Africa embassy bombings, charges each agency a per-position fee to fund new embassy compound construction, giving agencies a direct financial incentive to justify each seat.
The chief of mission weighs several factors: whether the position advances Integrated Country Strategy priorities; whether physical space exists within the embassy's Marine-guarded controlled access perimeter or whether co-location waivers under 12 FAM 311 would be required; whether the host government will accredit the personnel under the Vienna Convention on Diplomatic Relations (1961) or the Vienna Convention on Consular Relations (1963); and whether the security environment, as assessed by the Regional Security Officer and reflected in the post's Security Environment Threat List rating, can absorb additional personnel without degrading existing protection.
The Right-Sizing the U.S. Government Overseas Presence review, mandated by OMB and conducted on a rolling basis since the 2003 GAO report GAO-04-49 criticized embassy bloat, requires posts to periodically justify their entire footprint against mission priorities. NSDD-38 is the day-to-day instrument; right-sizing is the periodic audit. Together they make the embassy a deliberately constructed instrument rather than an accretion of agency outposts.