Press release: Review of the Responsibilities and Actions Related to the Secretary of Defense’s Hospitalizations and the DoD’s Policies and Procedures for Notification and[...]

Inspector General Robert P. Storch announced today that the Department of Defense (DoD) Office of Inspector General (OIG) released the "Review of the Responsibilities and Actions Related to the Secretary of Defense's Hospitalizations and the DoD's Policies and Procedures for Notification and Transfer of Functions and Duties." The OIG report released today consists of several parts. First, the OIG examined the responsibilities and actions related to the transfer of functions and duties from Secretary of Defense Lloyd J. Austin III to Deputy Secretary of Defense Kathleen Hicks during Secretary Austin's hospitalizations in December 2023 and January and February 2024. Second, the report details the OIG's assessment as to whether the DoD's policies and procedures are sufficient to ensure timely and appropriate notifications and the effective assumption of functions and duties by the Deputy Secretary of Defense or other senior DoD leadership in the chain of succession due to health-based or other unavailability of the Secretary of Defense or the Deputy Secretary of Defense. Lastly, the report presents findings related to notifications required for continuity of operations, as well as two other topics.

"The ability for the DoD and the government to operate seamlessly and the continuity of leadership under any and all circumstances are fundamental to our national security," said IG Storch. "Although we found no adverse consequences to DoD operations arising from how the hospitalizations we reviewed were handled, the risks to our national defense, including the command and control of the DoD's critical national security operations, were increased unnecessarily. While the DoD has taken some important steps to address these concerns, additional improvements are required to ensure the DoD's readiness, transparency, and the fulfillment of its mission. These improvements are not just an administrative necessity; they are an operational and national security imperative."

The first part of the OIG's review focused on three periods during which Secretary Austin was hospitalized in late 2023 and early 2024. Secretary Austin was hospitalized in December 2023 for a planned prostatectomy to address prostate cancer, a procedure that was carried out under general anesthesia. In connection with this hospitalization, the Secretary transferred certain authorities to the Deputy Secretary for approximately 36 hours on December 22 through 23, 2023, but he did not inform her of the reason for the transfer. On January 1, 2024, Secretary Austin was unexpectedly hospitalized due to severe pain resulting from complications of the December surgery. When the Secretary's condition worsened on January 2 and he was transferred to the Surgical Intensive Care Unit (SICU), where he would not have access to secure communications, certain of his authorities were transferred to the Deputy Secretary from the afternoon of January 2 through the evening of January 5. Although Deputy Secretary Hicks was informed that certain authorities had been transferred to her, there was not a common understanding in the Department or by the Deputy Secretary that these transfers meant that, as a matter of law, she was serving as the Acting Secretary of Defense during these periods.

Secretary Austin resumed his authorities on the evening of January 5, but he remained hospitalized through January 15. During this period, he had three additional medical procedures. For two procedures-those on January 6 and January 8-he was moderately sedated and received written and verbal advice not to engage in activities requiring unimpaired physical and mental ability for 24 hours after the procedures. He was also advised that general anesthesia might be required. Nevertheless, Secretary Austin did not transfer his authorities and the OIG found no evidence that a transfer was considered or that Secretary Austin informed the Deputy Secretary or his Chief of Staff of the procedures. Finally, on February 11, Secretary Austin was again unexpectedly hospitalized because of significant medical complications. Despite his severe condition, and his later testimony to the OIG that he believed he had transferred his authorities before he went to the hospital, the OIG found that the weight of the evidence supported that the transfer did not occur until several hours later, after the Secretary was again hospitalized.

The OIG made several significant findings related to Secretary Austin's decisions to transfer his authorities in connection with his hospitalizations in late 2023 and early 2024. These findings include that Secretary Austin's medical procedures on January 6 and 8 should have prompted additional consideration of whether to transfer his authorities and that, given the seriousness of his condition on February 11, it would have been prudent to have transferred his authorities hours earlier than ultimately occurred.

There were conflicting accounts as to whether Secretary Austin directed his Personal Security Officer, who responded to his residence on January 1, that the ambulance not use lights and sirens, consistent with the recording of the 9-1-1 call, and that they not notify anybody about the situation. Considering the impact of Secretary Austin's condition at the time and the contemporaneous statements and actions of those involved, as well as the Secretary's strong desire for privacy about his medical condition that the OIG found was consistent throughout all of the reviewed events, the OIG assessed that the weight of the evidence supported that Secretary Austin made these requests.[1]

The OIG found that required notifications for the December 22 through 23 and January 2 through 5 transfers were not made in a timely manner, neither to the Comptroller General or Congress under the Federal Vacancies Reform Act (FVRA) nor to the White House Situation Room under National Security Presidential Memorandum (NSPM)-32 and implementing DoD policies. Specifically, Secretary Austin did not meet the statutory requirement to "immediately" notify the Comptroller General and Congress about the vacancy of his office resulting from his medical procedure under general anesthesia in December 2023, for which notifications were not made until after an employee from the office of the Comptroller General requested them on January 8, 2024. The OIG found that Secretary Austin also did not meet the separate requirement under NSPM-32 for the DoD to report his incapacitation to the White House Situation Room within several minutes telephonically, and then more formally within 3 hours.

As for the January 2 through 5 transfer of authorities, the OIG found that neither Secretary Austin nor Deputy Secretary Hicks notified the Comptroller General and Congress under the FVRA in a timely manner. Although the OIG acknowledges that Deputy Secretary Hicks did not have complete information regarding the basis for the transfer of authorities, including that she was not informed until January 4 that Secretary Austin was in the hospital, there nevertheless was a statutory requirement to make immediate notification of the vacancy of the office under the FVRA. Such notifications did not occur until January 9 to the Government Accountability Office and January 11 to Congress. As with the December hospitalization, the White House Situation Room was not notified in a timely manner consistent with NSPM-32 with regard to the Secretary's hospitalization and the transfer of authorities to Deputy Secretary Hicks.

With regard to the laws and policies related to continuity of operations, the OIG identified a number of discrepancies related to the basis and timing for the requisite notifications. We also identified miscellaneous issues related to inconsistencies in the movement notifications that were required for the Secretary and Deputy Secretary, and insufficient documentation of medical care received at home in the patient's Electronic Health Record.

The DoD implemented process changes shortly after the Secretary was hospitalized in January, and implemented recommendations from its internal 30 day review in DoD Directive 3020.53, "Assumption of Functions and Duties of the Secretary of Defense," May 28, 2024. However, while a significant improvement, the OIG found that the new directive does not fully address potential scenarios involving the inability of the Secretary of Defense to perform the functions and duties of the office. For example, the directive does not clearly define key terms that would have been helpful to navigate situations like the Secretary's hospitalizations in December 2023 through February 2024, it does not sufficiently address the role of medical personnel and others in the decision as to whether a transfer of authorities is warranted or ensure they have the information necessary to fully engage in those discussions, and it does not provide sufficient consideration of the impact of medications or identify objective criteria that would be helpful to trigger consideration of a transfer of authorities.

The OIG made 20 recommendations to improve processes, widen the aperture of those involved in the decision-making process, enhance the flow of information within the Department and to other critical government stakeholders, and update related training and guidance. The OIG believes that taking prompt action on these recommendations is important to help ensure that fully informed decisions are made and communicated in a timely fashion in this important area.

On January 3, 2025, Secretary Austin responded on behalf of the DoD concurring with all 20 of the OIG's recommendations.

The OIG will monitor the DoD's actions toward implementing the recommendations in this report.

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