U.S. AMBASSADOR TO UN TESTIFIES TO CONGRESSIONAL COMMITTEE

FROM:  U.S. JUSTICE DEPARTMENT
Testimony to the House Foreign Affairs Committee
Samantha Power
U.S. Permanent Representative to the United Nations
Washington, DC
June 16, 2015
AS DELIVERED

Thank you, Mr. Chairman. Thank you, Congressman Engel. Distinguished members of the Committee, thank you for the opportunity to testify today. And thank you for being here. Thank you also for your leadership in advancing America’s national security interests and our values in the world.

Last week I traveled to Ukraine, where I had the chance to see up close what happens when the rules undergirding our international peace and security are ignored. At a shelter for displaced families in Kyiv, I met a mother who told me how her husband and two-year-old child had been killed in February when a shell struck their home in a village in eastern Ukraine. The shelling, as you all know, was part of a sustained assault by combined Russian-separatist forces – and the victims just two of the more than 6,300 people who have been killed in the Moscow-manufactured conflict. Shortly after the attack, the mother fled town with her five surviving children in a van whose roof and doors had been blasted out. Her plea – one I heard echoed by many of the displaced families I met from eastern Ukraine and occupied Crimea – was for the fighting to stop, and for their basic rights to be respected.

As the members of this Committee know, we are living in a time of daunting global crises. In the last year alone, Russia continued to train, arm, and fight alongside separatists in eastern Ukraine; a deadly epidemic spread across West Africa; and monstrous terrorist groups seized territory across the Middle East and North Africa, committing unspeakable atrocities. These are the kinds of threats that the United Nations exists to prevent and address. Yet it is precisely at the moment when we need the UN most that we see the flaws in the international system, some of which have been alluded to already.

This is true for the conflict in Ukraine – in which a permanent member of the UN Security Council is violating the sovereignty and territorial integrity that it was entrusted with upholding. It is true of the global health system that – despite multiple warnings of a spreading Ebola outbreak, including those from our own CDC – was slow to respond to the epidemic. And it is true of UN peacekeepers, who too often stand down or stand by when civilians they are responsible for protecting come under attack. Thus leaving populations vulnerable and sometimes open to radicalization.

Representing our nation before the United Nations, I have to confront these and other shortcomings every day. Yet though I am clear-eyed about the UN’s vulnerabilities, the central point I want to make to this Committee is that America needs the United Nations to address today’s global challenges. The United States has the most powerful set of tools in history to advance its interests, and we will always lead on the world stage. But we are more effective when we ensure that others shoulder their fair share and when we marshal multilateral support to meet our objectives. Let me quickly outline five ways we are doing that at the UN.

First, we are rallying multilateral coalitions to address transnational threats. Consider Iran. In addition to working with Congress to put in place unprecedented U.S. sanctions on the Iranian government, in 2010 the Obama Administration galvanized the UN Security Council to authorize one of the toughest multilateral sanctions regimes in history. The combination of unilateral and multilateral pressure was crucial to bringing Iran to the negotiating table, and ultimately, to laying the foundation whereby we were able to reach a framework agreement that would, if we can get a final deal, effectively cut off every pathway for the Iranian regime to develop a nuclear weapon.

Consider our response to the Ebola epidemic. Last September, as people were dying outside hospitals in West Africa, hospitals that had no beds left to treat the exploding number of Ebola patients, the United States chaired the first-ever emergency meeting of the UN Security Council dedicated to a global health issue. We pressed countries to deploy doctors and nurses, to build clinics and testing labs, and to fill other gaps that ultimately helped bend the outbreak’s exponentially rising curve. America did not just rally others to step up, we led by example, thanks also very much to the support of this Congress, deploying more than 3,500 U.S. Government civilian and military personnel to Liberia, which has been Ebola-free since early May.

Second, we are reforming UN peacekeeping to help address the threats to international peace and security that exist in the 21st century. There are more than 100,000 uniformed police and soldiers deployed in the UN’s sixteen peacekeeping missions around the world – that is a higher number than in any time in history – with more complex responsibilities also than ever before. The United States has an abiding strategic interest in resolving the conflicts where peacekeepers serve, which can quickly cause regional instability and attract extremist groups, as we have seen in Mali. Yet while we have seen peacekeepers serve with bravery and professionalism in many of the world’s most dangerous operating environments, we’ve also seen chronic problems, too often, as mentioned, including the failure to protect civilians.

We are working aggressively to address these shortfalls. To give just one example, we are persuading more advanced militaries to step up and contribute soldiers and police to UN peacekeeping. That was the aim of a summit that Vice President Biden convened at the UN last September, where Colombia, Sweden, Indonesia and more than a dozen other countries announced new troop commitments; and it is the message I took directly to European leaders in March, when I made the case in Brussels that peacekeeping is a critical way for European militaries to do their fair share in protecting our common security interests, particularly as they draw down in Afghanistan. This coming September, President Obama will convene another summit of world leaders to build on this momentum and help catalyze a new wave of commitments and generate a new set of capabilities for UN peacekeeping.

Third, we are fighting to end bias and discrimination at the UN. Day in and day out, we push back against efforts to delegitimize Israel at the UN, and we fight for its right to be treated like any other nation – from mounting a full-court diplomatic press to help secure Israel’s permanent membership into two UN groups from which it had long and unjustly been excluded, to consistently and firmly opposing one-sided actions in international bodies. In December, when a deeply unbalanced draft resolution on the Israel-Palestinian conflict was hastily put before the Security Council, the United States successfully rallied a coalition to join us in voting against it, ensuring that the resolution failed to achieve the nine votes of Security Council members required for adoption. We will continue to confront anti-Israel bias wherever we encounter it.

Fourth, we are working to use UN tools to promote human rights and affirm human dignity, as we did by working with partners to hold the first-ever Security Council meeting focused on the human rights situation in North Korea in December. We used that session to shine a light on the regime’s horrors – a light we kept shining through a panel discussion I hosted in April, with escaped victims of the regime. One woman told of being forced to watch the executions of fellow prisoners who committed the “crime” of daring to ask why they had been imprisoned, while another woman told how members from three generations of her family – her grandmother, her father, and her younger brother – had starved to death. This is important for UN Member States to hear.

Fifth, we are doing everything within our power to make the UN more fiscally responsible, more accountable, and more nimble – both because we have a responsibility to ensure American taxpayer dollars are spent wisely, and because maximizing the efficiency of our contributions means saving more lives and better protecting the world’s most vulnerable people. Since the 2008 to 2009 fiscal year, we have reduced the cost-per-peacekeeper by 18 percent, and we are constantly looking for ways to right-size missions in response to conditions on the ground, as we will do this year through substantial drawdowns in Côte d’Ivoire, Haiti, and Liberia, among other missions.

Let me conclude. At the outset, I spoke of my recent visit to Ukraine. Across the range of Ukrainians I met – from the mother who lost her husband and two-year-old child in the assault by combined Russian-separatist forces; to the brave students who risked their lives to take part in the Maidan protests against the kleptocratic Yanukovych government; to the young members of parliament working to fight corruption and increase transparency – what united them was the yearning for certain basic rights. And, the belief that the United States could lead other countries – and the United Nations – in helping make their aspirations a reality.

I heard the same sentiment when visiting UN-run camps of people displaced by violence in the Central African Republic, and South Sudan, and in the Ebola-affected communities of Guinea, Liberia, and Sierra Leone at the peak of the outbreak.

Some may view the expectation that America can help people overcome their greatest challenges and secure their basic rights as a burden. In fact, that expectation is one of our nation’s greatest strengths, and one we have a vested interest in striving to live up to – daunting as it may feel in the face of so many crises. But we cannot do it alone, nor should we want to. That is why it is more important than ever that we use the UN to rally the multilateral support needed to confront today’s myriad challenges.

Thank you and I look forward to your questions.

PRESS BRIEFING ON V.P. BIDEN'S TRIP TO UKRAINE

FROM:  THE WHITE HOUSE 

Background Press Briefing on Vice President Biden's Trip to Ukraine

Aboard Air Force Two
En Route Kyiv, Ukraine

2:00 P.M. (Local)

MR. SPECTOR:  Just a reminder at the top this is on background as a senior administration official.  He will give some brief remarks at the top and walk through the schedule, and then he’ll take a few questions afterwards.  And again, senior administration official on background.

SENIOR ADMINISTRATION OFFICIAL:  Thanks, everybody.  We’re about an hour and a half out of Kyiv, and I just wanted to lay out for you what the Vice President will be doing while he’s here, and then speak to some of the themes from the trip and then answer some of your questions.

When we arrive today, he’s got an opportunity to meet with our embassy team that has been pretty much working around the clock for the last few months, even long before February 21st; and then he will sit down with a CODEL led by Congressman Royce to have the chance to speak with them before they have their series of official meetings on Tuesday as well.  So he’ll get brought up to speed on developments on the ground today from our ambassador and our team, and then he’ll go into his meetings tomorrow.

He starts in the morning with a meeting with acting President Turchynov, and then he will do a meeting with Rada representatives from every corner of the country -- from the center, the west, the east, the south -- from multiple generations of Ukrainian politics; some familiar names and then some younger faces and voices.  And the key message of that meeting from him is one of national unity and a successful constitutional reform effort that takes into account the perspectives and aspirations of all Ukrainians. 

But in addition to sending that message, he’s also going to want to hear from them -- all of them -- about what they would like to see both in the immediate term, and then over the medium to long term.

He will then meet with Prime Minister Yatsenyuk where he’ll cover the full range of issues confronting Ukraine today.  And then he’ll finish with a meeting with a couple of dozen or more members of civil society from a variety of backgrounds who work on a variety of issues from democracy to anti-corruption, to youth issues, to cultural issues.  He’ll have an opportunity to address not just them but a broader segment of the Ukrainian public in public remarks there that will be open to the media before going behind closed doors to have conversations with the assembled group about the way they see things and what the United States can do to support them.

So that's the schedule.  In terms of what the Vice President is trying to accomplish, first and foremost, he wanted to come Kyiv to send a very clear message of the United States’ support for Ukraine’s democracy, unity, sovereignty and territorial integrity.  And he wanted to have the opportunity to speak to all Ukrainians from the center, from the west, from the east and from south.  He will call for urgent implementation of the agreement reached in Geneva last week, while also making clear as we have done for the last few days there will be mounting costs for Russia if they choose a destabilizing rather than constructive course in the days ahead.

He will speak to government leaders both the Prime Minister and the acting President, but also members of various factions in the Rada, as well as with civil society about how the United States can support constitutional reform, including the government’s decentralization proposals and how we can support their effort to bring about free and fair elections, international monitors supporting international standards on May 25th.  He will speak to officials about steps towards economic stabilization in Ukraine.  He’ll discuss forms of U.S. assistance, including the loan guarantee that was signed this past week, but also and especially the IMF agreement.  We hope that the final elements of that will come together imminently, and that the IMF board will be able to meet relatively soon to complete that process and begin dispersing the money.

He will speak about both the short- and long-term energy situation in Ukraine.  As he arrives, there will also be a team on the ground from the United States, a team of experts working on the reverse flow issue.  That team will be in Kyiv and then will travel also to Slovakia, Poland and Hungary to help address the issue of reversing the flow of natural gas to provide Ukraine with some measure of short-term supply of natural gas as they look to replenish their stores.

But also he’ll discuss with them medium- and long-term strategies to boost conventional gas production, and also to begin to take advantage of the unconventional gas reserves that are in Ukraine.

Then, of course, as you might anticipate from his meeting with civil society, he’s looking to lift up the voices of Ukraine civil society as they seek to ensure there isn’t a repeat of the past, that they look to a future with less corruption, less coercion, less division. 

And then finally let me just say I don't want to preempt him but he will be discussing various forms of assistance that the United States will be offering in some of these areas.  And we’ll have an opportunity to go through some of those forms of assistance and what’s behind them after he’s had the opportunity to consult with leaders there.  So I’ll look forward to coming back to briefing you in greater detail on that over the next 24 hours or so.

Q    Are you talking about --

SENIOR ADMINISTRATION OFFICIAL:  Yes.

Q    -- beyond economic assistance?

SENIOR ADMINISTRATION OFFICIAL:  Well, there’s a package of economic and energy and governance assistance that he’ll be discussing.  And we, as you saw, just recently announced a latest tranche of security assistance, nonlethal security assistance.  And he’ll have the opportunity to speak with the government about what more is needed and what more we could provide in the period ahead.

Q    So there’s a package that includes economic, energy and discussion of further security assistance.  Is that right?

SENIOR ADMINISTRATION OFFICIAL:  Well, the package I’m describing includes economic, energy and governance assistance.  On the question of security assistance, that's something we’ll be consulting with the Ukrainian leadership about.

Q    What kind of energy assistance can the U.S. provide broadly?

SENIOR ADMINISTRATION OFFICIAL:  We have a wide range of technical expertise and then forms of technical assistance in four areas.  The first is how to address this immediate reverse flow issue, and we already have a team on the ground to deal with that.  The second is technical assistance to help them be able to boost production in their conventional gas fields, where presently they aren’t getting the maximum of what they could be.  Third, technical assistance relating to a regulatory framework, and also the technology that would be required to extract unconventional gas resources; and Ukraine has meaningful reserves of unconventional gas according to the latest estimates.  And then finally various forms of technical assistance relating to energy efficiency, where experts have shown that the Ukraine could substantially lessen its energy dependence and deny any country the capacity to use energy as a political weapon through a combination of all those things, but in no small part through greater energy efficiency and use of its existing energy.

Q    The economic assistance, does that mean money?

SENIOR ADMINISTRATION OFFICIAL:  I think the biggest piece of business beyond the $1 billion loan guarantee and bringing to closure the IMF and helping also to shepherd the European money will be teams that we can put on the ground to help ensure that that money is allocated in an effective way.  Technical assistance teams from the Treasury Department and elsewhere.  And when I say effective, I mean in keeping with what the IMF and Ukraine have agreed, but also in keeping with everyone’s desire to ensure that all parts of Ukraine benefit from this assistance -- the east and the south, as well as the center and the west.

Q    The violence that broke out on Sunday, in the context of the international agreement, there seemed to be a lot of finger-pointing between Russian and Ukrainian officials about what happened.  Do you have a sense of who is to blame and whether -- how that might affect that agreement?

SENIOR ADMINISTRATION OFFICIAL:  The situation regarding the incident outside of Slavyansk is still very murky.  What the Ukrainian government says is that it was a provocation by the pro-Russian forces manning roadblocks there, and that they have no evidence that there was any either Ukrainian security service involvement or involvement by people coming from Kyiv or elsewhere.  We have nothing to suggest that there was either, but we don't have 100 percent of the facts on that, and part of the reason for that, of course, is that it has been difficult for monitors to travel in and around Slavyansk because the pro-Russian separatists there with Russia standing behind them have not permitted the type of international observation that should be permitted.  And we think that the best way to ensure that those kinds of incidents don't happen again would be for the Russian government to follow through on its commitment to use every influence it has to get these pro-Russian separatists to lay down their arms, to de-occupy buildings, to take down roadblocks and to allow the political process to run its course.

Q    You’ve talked about cohesion, that that's part of the Vice President’s message through all of this.  You guys haven’t really talked to that up till now.  And so can you talk about what the thinking is behind that, and why he’s going to be going with that message at this particular time?  And kind of what the expectations are in terms of getting different factions on board? Is he planning on having some kind of specific takeaway?  Or is it more of a general discussion?

SENIOR ADMINISTRATION OFFICIAL:  Let me start by staying obviously Ukraine’s future -- its political decisions, its economic decisions -- are up to Ukrainians.  And the United States wants to support its free choices in that regard, not to try to dictate any outcomes.

But his focus on unity comes from sort of three bases.  The first is that the Ukrainian government itself has placed an increasingly high premium on pressing for a sense of national unity and has conducted increasingly vigorous outreach to the east and the south, including just this past Friday, when Prime Minister Yatsenyuk spoke about decentralization proposals, spoke about cultural and linguistic traditions.  And the Vice President wants to support that.

Second, there are currently ongoing threats to Ukraine’s sovereignty and territorial integrity.  And the most effective response for Ukraine to that is for the whole country to pull together to push back on those threats and to say we want to take our country forward in a way free from violence, and at the ballot box rather than with arms.

And then third, Ukraine faces substantial urgent challenges right now on a number of different levels.  And only if every aspect of the country gets united behind a game plan to tackle those challenges will they be able to make progress.  That's true with respect to stabilizing the situation on the ground.  It’s true with respect to following through on constitutional reform and elections.  It’s true with stabilizing a very fragile economy.  And it’s true with dealing with an energy situation that remains precarious.  So for all of those reasons, the Vice President feels that the United States’ support for efforts to pull the country together are especially important at this time.

Q    We’re not going to hear at all from him today, right?  The Vice President.

SENIOR ADMINISTRATION OFFICIAL:  You’re not going to hear from him today.  You’ll hear from him multiple times tomorrow.

Q    Did the President task him with a specific message?  Or can you talk at all about kind of what President Obama said -- told the Vice President before he left and kind of whether he’s carrying a message from him, or what his goals are in that sense?

SENIOR ADMINISTRATION OFFICIAL:  Most of what I’ve laid out here is the product of conversations between the President and the Vice President in the run-up to the trip in terms of the issues we’re emphasizing and what we’re trying to accomplish.  I don't want to get into their private conversations, but he will speak directly with the Prime Minister about the President’s perspective on this, and also about the President’s commitment to support the government and to support the broader effort at following through on these various lines of effort.

In terms of what this government has been doing or attempting to do on the economy, on the elections, on constitutional reform, on all the areas that we’ve been discussing, it’s been a very encouraging set of steps that they’ve been trying to take in the face of pretty enormous challenges.  And I think the President and the Vice President want to make sure that the Prime Minister understands that the United States wants to find every way that it can to support those efforts.

Q    -- been vigorous outreach from the Ukrainian government to the south and the east.  Can you give a few examples of the kind of outreach that you think has been very effective and other steps that the U.S. would like to continue to see progress on?

SENIOR ADMINISTRATION OFFICIAL:  I think I said increasingly vigorous, and that's important because it’s been building over time.  And we want to continue to encourage that.  Obviously, the leadership in Kyiv has a lot to deal with, but this is as much at the top of the list as anything else.  And what I mean is both private conversations among leaders in Kyiv and those representing political interests in the south and the east.  I mean officials who have been appointed by this interim government who are out in the oblasts in the east trying to speak with people across the political spectrum there to figure out how we can design -- how they can design a decentralization process that really works.  I mean the Prime Minister himself addressing directly the concerns of some of the citizens in the east and south, including his comment -- or his pledge regarding the Russian language.

I’m referring also to the work of the constitutional commission, which is a balanced group that reflects significant representation from the south and the east, and is focused on these questions of decentralization and empowering local communities.

So at a variety of different levels you’re seeing more robust interchange within Ukraine, and that's all to the good.  We believe that that has to be sustained and deepened in the days ahead.

Q    We talked a little bit about some of the increase in violence that has been seen in Ukraine in the recent days.  This past weekend, the Ukrainian Prime Minister said that really the only person responsible for containing that is Putin.  Do you expect that we should hear some sort of direct message to President Putin from Vice President Biden during this trip, any sort of direct message -- either from the President or just from the administration in general?

SENIOR ADMINISTRATION OFFICIAL:  Well, first of all, President Obama spoke with President Putin last week and was able to deliver the message in the most direct fashion possible -- person-to-person.  And what he told President Putin is the same thing that we’ve been saying publicly which is that really Russia has a choice to make here.  They can contribute to a de-escalation process as a responsible actor, which they have not been -- and going back to their illegal annexation/occupation of Crimea, have proven to be just the opposite of that; or they are going to face increasing costs.  And that's something that the President has been very clear about; the Vice President will continue to be clear about.  And we’ll continue to consult with our European partners about.

Q    Does the administration have any sort of updated timeline on that as to when you say these dire consequences, when we would see that?

SENIOR ADMINISTRATION OFFICIAL:  Well, I didn't say what you just said.  But in terms of the timeframe, Geneva was decided Thursday.  The OSCE has been working over the weekend.  We haven’t seen the kind of progress that, of course, we would like.  We’d like to see every building vacated as soon as possible.  And we’ve seen certain activities that have been discouraging like the shooting at the roadblock outside of Slavyansk.  But I’m not going to put a precise timetable on it.  I will just say that this is not going to be an open-ended process.  This is going to be a situation where we take stock and determine in the relatively near term what our next step should be.

Q    What does that mean?  Because you guys were indicating as recently as Friday that it would be days.  So when you say --

SENIOR ADMINISTRATION OFFICIAL:  Nothing has changed since Friday. 

Q    Okay, so days would mean by the end of this week, right?

SENIOR ADMINISTRATION OFFICIAL:  Like I said, I’m not going to put a precise timeframe on it, only to say that we’re heading into Monday here.  And what we said on Friday was that we would be looking at this in the coming days to determine whether there was progress or whether there wasn’t.  And that still stands.

Q    Could you just say how this trip came about?  Obviously the Vice President has a long history of diplomatic relations with Ukraine.  Was this something that was his initiative?  Did the President ask him to go because of those relationships?  Or how did that come?

SENIOR ADMINISTRATION OFFICIAL:  The reason I’m pausing here is it’s one of those -- it’s one of those conversations where it’s a little hard to say whether the President asked him or he said I want to go.  It grew out of a conversation that the two of them had, and both of them agreed that it was important for the U.S. to send a high-level signal of support for all of the lines of effort that this government is undertaking.

Obviously, the most pressing and acute right now is the security situation.  But these other lines of effort are also existential for Ukraine.  Its politics, its economics and its energy also matter acutely, and so they felt it was important to have somebody with deep ties to and a deep passion for the U.S.-Ukraine relationship to come and send that message both privately and publicly.  And there’s no better messenger for that than the Vice President.  So that's what brings us here, and we’ll make sure that over the next 24 hours we keep you guys up to date in terms of how those conversations are going and how a very fast moving situation is unfolding on the ground.

Obviously as we’ve been flying things have been happening in Ukraine.  It’s early afternoon now.  So we’ll make sure that we stay in touch here over the next 24-36 hours.

Q    What’s been happening -- is there anything significant that’s happened while we’ve been in the air?  I’m just sort of curious.

SENIOR ADMINISTRATION OFFICIAL:  Nothing that I would come back here to announce.

Thanks, guys.

Q    Thank you very much.

END

WHITE HOUSE STATEMENT ON UKRAINE

FROM:  THE WHITE HOUSE 
Statement by the Press Secretary on Ukraine

We are outraged by the images of Ukrainian security forces firing automatic weapons on their own people.  We urge President Yanukovych to immediately withdraw his security forces from downtown Kyiv and to respect the right of peaceful protest, and we urge protesters to express themselves peacefully.  We urge the Ukrainian military not to get involved in a conflict that can and should be resolved by political means.   The use of force will not resolve the crisis -- clear steps must be taken to stop the violence and initiate meaningful dialogue that reduces tension and addresses the grievances of the Ukrainian people.  The United States will work with our European allies to hold those responsible for violence accountable and to help the Ukrainian people get a unified and independent Ukraine back on the path to a better future.

NEW U.S. EMBASSY IN KYIV, UKRAINE

The following excerpt is from the U.S. State Department website: 

"United States Dedicates New Embassy Compound in Kyiv, Ukraine

Media Note

Office of the Spokesperson

Washington, DC

February 29, 2012

Following the 20^th Anniversary of American-Ukrainian diplomatic relations celebrated on January 20, U.S. Ambassador John F. Tefft dedicated the new embassy facility in Kyiv today. Speaker of the Ukrainian Parliament, Volodomyr Lytvyn; Foreign Minister, Kostyantyn Gryshchenko; as well as Under Secretary for Management, Patrick F. Kennedy; Deputy Chief of Mission, Eric Schultz; and Deputy Director of the Bureau of Overseas Buildings Operations (OBO), Heather Townsend participated in the ribbon-cutting ceremony.
Occupying a 10-acre site in the capital city of Kyiv, the multi-building complex is a platform for increased U.S. interaction with the Ukrainian people. The embassy’s permanent art collection celebrates the exchange of artistic expression between the United States and Ukraine through work by contemporary Ukrainian, American, and regional artists, curated by OBO’s Office of Art in Embassies.

The new embassy incorporates numerous sustainable features, most notably advances in engineering design to maximize efficiency and minimize energy use, a green roof system, and rain gardens which pre-treat stormwater before it is infiltrated on-site. The compound is registered with the Green Building Certification Institute and is entering the formal review process; it is the first LEED® registered project in Ukraine. B.L. Harbert International of Birmingham, Ala., constructed the project, which was designed by Page Southerland Page of Arlington, Va. The $247 million project generated hundreds of jobs in both the United States and Ukraine.
Since 1999, as part of the Department’s Capital Security Construction Program, OBO has completed 88 new diplomatic facilities and has moved more than 27,000 people into safe, secure, and functional facilities. OBO has an additional 41 projects in design or construction."