Benghazi and HRC's Culpability, the SECCA Time Around

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Gregory Hicks, the former DCM in Tripoli, now retired, has written an opinion piece for Fox News with the very election-year-sounding title of "What the Benghazi Attack Taught Me About Hillary Clinton."

Far be it from me to defend HRC, however, Mr. Hicks repeats a mistaken impression concerning security waivers that was debunked by the Benghazi Accountability Review Board report (here) but which has been flogged repeatedly by his legal counsel, the frequent Fox News contributor Victoria Toensing (bio here). It ought to be corrected, although of course it won't be so long as it has political utility.

Here are excerpts from Hicks' opinion piece:

Last month, I retired from the State Department after 25 years of public service as a Foreign Service officer. As the Deputy Chief of Mission for Libya, I was the last person in Tripoli to speak with Ambassador Chris Stevens before he was murdered in the Sept. 11, 2012 attack on our Benghazi post. On this, the fourth anniversary of the Benghazi tragedy, I would like to offer a different explanation for Benghazi’s relevance to the presidential election than is usually found in the press.

Just as the Constitution makes national security the President’s highest priority, U.S. law mandates the secretary of state to develop and implement policies and programs "to provide for the security … of all United States personnel on official duty abroad.”

-- Snip --

The Benghazi Committee’s report graphically illustrates the magnitude of her failure. It states that during August 2012, the State Department reduced the number of U.S. security personnel assigned to the Embassy in Tripoli from 34 (1.5 security officers per diplomat) to 6 (1 security officer per 4.5 diplomats), despite a rapidly deteriorating security situation in both Tripoli and Benghazi. Thus, according to the Report, “there were no surplus security agents” to travel to Benghazi with Amb. Stevens “without leaving the Embassy in Tripoli at severe risk.”

Had Ambassador Stevens’ July 2012 request for 13 additional American security personnel (either military or State Department) been approved rather than rejected by Clinton appointee Under Secretary of State for Management Pat Kennedy, they would have traveled to Benghazi with the ambassador, and the Sept. 11 attack might have been thwarted.

To digress a bit, that is not really what the former RSO in Tripoli, Eric Nordstrom, said in his testimony to the House Oversight Committee. You can read his prepared statement here courtesy of state.gov.

Let me say a word about the evening of September 11th. The ferocity and intensity of the attack was nothing that we had seen in Libya, or that I had seen in my time in the Diplomatic Security Service. Having an extra foot of wall, or an extra-half dozen guards or agents would not have enabled us to respond to that kind of assault.

The minority side lead on the Oversight Committee came back to that statement during his question period. You can read it in the hearing transcript:

Mr. Cummings: I just want to go back to something that you wrote in your statement, Mr. Nordstrom, in reference to the question that the chairman just asked you. And I quote you. I am reading from page 2. You said, ``Having an extra foot of wall or extra half dozen guards or agents would not have enabled us to respond to that kind of assault.''

Did you write that?

Mr. Nordstrom. Yes, I did. And I still believe that.

Mr. Cummings. Thank you.

But back to that misleading impression of HRC's supposed illegality. It concerns whether SecState Clinton did or did not approve a waiver of public law. Hicks wrote:

U.S. law also requires the secretary of state to ensure that all U.S. government personnel assigned to a diplomatic post abroad be located at one site. If not, the secretary — and only the secretary — with the concurrence of the agency head whose personnel will be located at a different location, must issue a waiver. The law, which states specifically that the waiver decision cannot be delegated, was passed after the 1998 bombing of two U.S. embassies in Africa, when deficient security was blamed for that debacle under Bill Clinton's presidency.

The law in question is the Secure Embassy Construction and Counterterrorism Act (SECCA). As anyone can read for himself in the publicly available online 12 Foreign Affairs Manual 310 (right here), paragraph 313 b says:

For purposes of the application of SECCA, a U.S. diplomatic facility is 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, or otherwise subject to a publicly available bilateral agreement with the host government (contained in the records of the United States Department of State) that recognizes the official status of U.S. Government personnel present at the facility.

So there it is. SECCA applies only to declared diplomatic premises, which neither of the two facilities in Benghazi were, according to the findings of the Benghazi Accountability Board, specifically in its second key finding (" ... the decision to treat Benghazi as a temporary, residential facility, not officially notified to the host government, even though it was also a full time office facility ... resulted in the Special Mission compound being excepted from office facility standards and accountability under the Secure Embassy Construction and Counterterrorism Act ...").

Mr. Hicks is repeating Victoria Toensing’s misguided deduction from testimony at a Benghazi Select Committee hearing, which I posted about before (here). Maybe she knows better, maybe she doesn't. Either way, this is a politically convenient line in an election year, so it won't go away soon, if ever.