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| That's a nice wave |
Consumer Notice: This post is certified 100% free of Matters of Official Concern that are not referenced from publicly available sources of information.
In Part 3, I quoted a GAO report to note some of the practical limitations that prevent most of the Department's overseas office facilities from fully meeting security standards. In this post, I'll cite the Foreign Affairs Manual to the effect that certain types of overseas facilities are not required to fully meet security standards or to obtain waivers of unmet standards.
Now, to track down the Department's actual requirements for overseas facilities security and waivers thereof, you have to go deep into a Dork Forest of official paperwork and policy geek language. Misunderstandings are common, and one of those misunderstandings concerns the Special Mission in Benghazi. It did not 'meet standards.' But did those standards apply in the first place, and did the Mission need a waiver of unmet standards?
The written statement of former RSO Tripoli Eric Nordstrom to the House Oversight Committee concerning security measures taken and not taken in Benghazi (here) contains this key passage:
SECCA [the Secure Embassy and Counterterrorism Act] establishes statutory security requirements for U.S. diplomatic facilities involving collocation and setback. Under SECCA, the State Department, in selecting a site for any new U.S. diplomatic facility abroad, must collocate all U.S. Government personnel at the post on the site. Each newly acquired U.S. diplomatic facility must be placed not less than 100 feet from the perimeter of the property. New U.S. chancery/consulate buildings, solely or substantially occupied by the U.S. Government, must meet collocation and 100-foot setback statutory requirements; otherwise, waivers to the statutory requirements must be granted by the Secretary of State. Furthermore, in accordance with 12 FAM 315.5, the Secretary {of State} must notify the appropriate congressional committees in writing of any waiver with respect to a chancery or consulate building and the reasons for the determination, not less than 15 days prior to implementing a statutory collocation or setback waiver.The requirement for a waiver might seem clear - it was required by law, and Hillary Clinton herself had to have signed it - but the key phrase is "U.S. chancery/consulate buildings." What exactly qualifies as a chancery or consulate?
All policy language is subject to definition. The first thing the FAM says about the Secure Embassy Construction and Counterterrorism Act is in 12 FAM 313. Note paragraph b:
12 FAM 313 SECURE EMBASSY CONSTRUCTION AND COUNTERTERRORISM ACT (SECCA)
a. SECCA establishes statutory security requirements for U.S. diplomatic facilities involving collocation and setback. (1) Site Selection (Collocation): The State Department, in selecting a site for any new U.S. diplomatic facility abroad, must collocate all U.S. Government personnel at the post (except those under the command of an area military commander) on the site.
(2) Perimeter Distance (Setback): Each newly acquired U.S. diplomatic facility must be sited not less than 100 feet (30.48 m) from the perimeter of the property on which the facility is situated.
b. U.S. diplomatic facilities are defined for purposes of the SECCA to include any chancery, consulate, or other office notified to the host government as diplomatic or consular premises in accordance with the Vienna Conventions on Diplomatic and Consular Relations. It also includes offices subject to a publicly available bilateral agreement with the host government that recognizes the official status of the U.S. Government personnel present in the facility.
So for the purpose of applying SECCA, a "U.S. diplomatic facility" is an office that is notified to the host government, or is the subject of a publicly available bilateral agreement. Full stop.
The question then becomes: was the Special Mission in Benghazi so notified to the host government? If the answer to that question is yes, then it needed a waiver. If the answer is no, then it did not.
The Benghazi ARB report said the Mission was never formally notified to the Libyan government:
Although the TNC [Transitional National Counsel] declared that Tripoli would continue to be the capital of a post-Qaddafi Libya, many of the influential players in the TNC remained based in Benghazi. Stevens continued as Special Envoy to the TNC in Benghazi until he departed Libya on November 17, 2011, after which the Special Envoy position was not filled. Stevens was replaced by an experienced Civil Service employee who served for 73 days in what came to be called the “principal officer” position in Benghazi. After November 2011, the principal officer slot became a TDY assignment for officers with varying levels of experience who served in Benghazi anywhere from 10 days to over two months, usually without transiting Tripoli. In December 2011, the Under Secretary for Management approved a one-year continuation of the U.S. Special Mission in Benghazi, which was never a consulate and never formally notified to the Libyan government.
Assuming the ARB report is correct on that point, there was never a need for a waiver of security standards for the Special Mission in Benghazi. Therefore, various Congressmen can stop wasting their time in a futile hunt for that smoking gun in Hillary's hands.
They are in hot pursuit of it now. Here's Rep. James Lankford questioning Eric Nordstrom on May 8, at the second Oversight Committee hearing on Benghazi:
The key exchange is:
(Lankford): "By statute, Mr. Nordstrom, who has authority to place personnel in a facility that does not meet the minimum OSPB [Overseas Security Policy Board] standards?"
(Nordstrom): "The OSPB standards go in tandem with SECCA, which is the Secure Embassy Construction and Counterterrorism Act, both of which derived out of the East Africa bombings, or were strengthened after that. It's my understanding that since we were the sole occupants of both of those facilities - Benghazi and Tripoli - the only person who could grant waivers or exceptions to those was the Secretary of State."
And with that, the hunt is on for the blockbuster withheld waiver memo that is assumed to exist.
I haven't seen the Department issue a statement of its own, separate from the ARB report, to clarify the status of the Special Mission in regard to SECCA's standards and waiver requirements. There are plenty of policy analysts and legal advisers in the building who could give Congress a definitive opinion, and the Department spokesmen would be well advised to use them.
The entire matter of Benghazi and its aftermath are traumatic enough already, and I'd hate to see people get even more emotionally invested in a waiver memo that doesn't exist.
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