Beyond Capitol Thunderdome: Can't Anybody Read?

I mentioned this before, on the evening of the first day of the marathon Benghazi Select Committee hearing - or was there only one day? It seemed like more - but it continues to bug me that there is so much confusion over the rather important question of whether or not the SecState waived legal requirements and security standards for the facility in Benghazi.

The mistaken impression that Hillary Clinton either waived or failed to waive the requirements of the law pertaining to the Special Mission facility in Benghazi appears to have set in as one of the few gotchas to come out of the hearing. That impression is mistaken because SECCA applies only to overseas diplomatic facilities that have been notified to the host government as diplomatic premises, such as chanceries and consulates. The policy for applying SECCA is established in Foreign Affairs Manual 12 FAM-300, which is publicly available. According to the report of the Accountability Review Board (ARB) - which is also publicly available - the facility in Benghazi was not notified to the host government as a diplomatic premise, therefore the law did not apply and it did not require a waiver.

Anyone interested in this matter can read 12 FAM 300 for himself and see what I'm talking about. Here's a tip: read the entire thing starting from the top, and don't skip the part that states how diplomatic facilities are defined for the purpose of applying SECCA. For some reason, journalists, Congressional staffers, and commentators who quote from it, are skipping ahead to the part they like, where the SecState has waiver authority that may not be delegated, and ignoring the all-important bureaucratic minutia of 12 FAM-313, paragraph b.

But what do I know? Here a report from Breitbart which quotes the back-and-forth between Rep. Susan Brooks and Hillary Clinton that constitutes the smoking gun of this false allegation:

Brooks asked, “Congress passed something referred to as SECA, the Secure Embassy Construction and Counterterrorism Act, which requires the secretary of state to issue a waiver if under two conditions if US government personnel work in separate facilities, or if US overseas facilities do not meet security setback distances specified by the Bureau of Diplomatic Security. the law specifies that only the secretary of state may sign these waivers, and that requirement is not to be delegated. Was a waiver issued for the temporary mission in Benghazi, and the CIA annex after the temporary mission compound was authorized through December of 2012? And did you sign that waiver, Madame Secretary?”

Hillary answered, “T think that the CIA annex, I had no responsibility for, so I cannot speak to what the decisions were with respect to the CIA annex.” She did acknowledge she was responsible for the temporary mission compound before continuing, “I had no responsibility for the CIA annex, obviously. The compound in Benghazi was neither an embassy nor a consulate. Those are the only two facilities for which we would obtain a formal diplomatic notification, and those were the only kinds of facilities that we would have sought waivers for at the time, because we were trying to, as has been testified to earlier, understand whether we were going to have a permanent mission or not. That means you have to survey available facilities, try to find a secure facility, and the standards that are set by the inter-agency Overseas Security Policy Board are the goals we try to drive for. But it is very difficult, if not impossible to do that in the immediate aftermath of a conflict situation. The temporary mission in Benghazi was set up to try to find out what was going on in the area, to work with the CIA, where appropriate, and to make a decision as to whether there would be a permanent facility. So, we could not have met the goals under the Overseas Security Policy Board, nor could we have issued a waiver, because we had to set up operations in order to make the assessments as to whether or not we would have a permanent mission, whether that mission would remain open, and we made extensive and constant improvements to the physical security, some of which I mentioned before.”

Hillary answered the question correctly, i.e., the Special Mission facility was not a chancery or consulate and those are the only types of facilities that would need waivers. But then she rambled on about other matters until she seemed to be saying that the uncertain duration of the Mission was the main thing.

Another commentator who seems to have poor reading comprehension is Victoria Toensing, who is confused by both 12 FAM-300 and the Benghazi Accountability Review Board report.

This is Toensing's critique of Rep. Brook's inept questioning of the witness - By law, Clinton was required to waive the security in Benghazi and could not delegate that decision:

Repeatedly, the Committee allowed Clinton to claim she had nothing to do with security in Libya. Such requests “were rightly handled by the security professionals…. I did not see them. I did not approve them. I did not deny them.” However, the Secure Embassy Construction and Counterterrorism Act of 1999, SECCA, passed in the wake of the 1998 Embassy twin bombings in Africa when Bill Clinton was president, required her to rule on the substandard security in Benghazi.

As with Benghazi, an Accountability Review Board (ARB) for each African bombing was convened. The ARBs faulted the State Department for no accountability for the security in Kenya and Tanzania, and made specific recommendations for future Secretaries of State. But Congress went further. SECCA requires the Secretary to waive any situation where all the embassy buildings are not housed in one facility, as was the case with Benghazi, and states that the decision cannot be delegated.

For a long time, the Committee seemed to be aware only of the ARB language, quoting it extensively while ignoring the statutory mandate. Finally, during the dinner hour, Rep. Susan Brooks broached the issue but clearly did not understand the law. When Sec. Clinton demurred she did not sign a waiver because the Benghazi consulate was “temporary,” Brooks abandoned the subject. But Brooks’ acquiescence missed the point of the law. It was intended to cover such “temporary” facilities.

The Benghazi ARB admitted in its 2013 report that there had been a waiver, describing the Benghazi compound as being “excepted” under the law. Was no one on the Committee aware of that fact? An obvious follow up question: “But Ms. Clinton, who did the ARB refer to when saying Benghazi had been excepted?” And then: “If you did not sign the waiver, who did?” But the Committee let her escape an admission of violating the law by falsely claiming it did not cover a temporary facility.

Toensing is berating the Committee members and staffers for being unaware of this passage in the ARB report:

Another key driver behind the weak security platform in Benghazi was 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. This resulted in the Special Mission compound being excepted from office facility standards and accountability under the Secure Embassy Construction and Counterterrorism Act of 1999 (SECCA) and the Overseas Security Policy Board (OSPB). Benghazi’s initial platform in November 2011 was far short of OSPB standards and remained so even in September 2012, despite multiple field-expedient upgrades funded by DS. (As a temporary, residential facility, SMC was not eligible for OBO-funded security upgrades.) A comprehensive upgrade and risk-mitigation plan did not exist, nor was a comprehensive security review conducted by Washington for Benghazi in 2012. The unique circumstances surrounding the creation of the mission in Benghazi as a temporary mission outside the realm of permanent diplomatic posts resulted in significant disconnects and support gaps.

Did the ARB Report really say that the SecState, or anyone else, had signed a SECCA waiver for the facility in Benghazi? Is that what the report means by "excepted" from the law?

No. The report clearly states that because the facility was not officially notified to the host government, SECCA did not apply, which resulted in the facility being excepted from both SECCA and overseas security standards.

Sorry, but there is no smoking gun here. And I say that as someone who does not have any personal, professional, or political fondness for Hillary.

American Centers vs Fortress Embassies

Photo - The Archer K. Blood American Center Library at the American Center, Dhaka, Bangladesh (from Embassy website)

Consumer Notice: This post is certified 100% free of Matters of Official Concern that are not referenced from publicly available sources of information.

H/T to John Brown's Press and Blog Review for posting a link to the agenda transcript for the May 2011 Public Meeting of the U.S. Advisory Commission on Public Diplomacy.

Check the date of that meeting - May 2011. And yet the transcript was only released a couple days ago. Did it take that long to clear the publication? Better late than never.

One part of the transcript piqued my own personal special interest. In the presentation by Ms. Betsy Whitaker, Strategic Communications Officer, Office of the Under Secretary of Public Diplomacy and Public Affairs, she remarked on the ongoing attempts to maintain some public diplomacy outreach facilities outside of the Department's famously forbidding Fortress Embassies:

American Spaces are clearly an area of great importance to generations of public diplomacy officers, and platforms of course that can be used sometimes as a sort of politically neutral venue where people can gather and simply learn about the United States through a variety of different media, and also interpersonal interaction.

We have, with, again, the assistance of IIP, created an office for the support of American Centers. In fact, we have the acting director over here, Anne Barbaro. And in working with IIP, we have also worked very, very hard for 18 months now, I think, to create a very good working relationship with our colleagues in Diplomatic Security and the Overseas Building Operations Bureau.

Why? Because we have sought, and I think are gradually achieving, an all-of-department approach to these spaces. DS clearly we need as a partner as we – because one of the reasons, as you know, that many of these centers have been shuttered or called back or pulled back behind embassy gates is simply because of security concerns.

And what we have been doing with OBO is twofold. One, as posts are anticipating the construction of new embassy compounds or new consulate compounds, working with the mission, if it has been part of the planning discussion to think about bringing some of these centers and spaces back in with the rest of the mission, we’re simply asking people just to stop for a second and ask the question, is this a wise move in terms of our outreach, and, you know, is this absolutely necessary in terms of security?

Let me be clear: Under Secretary McHale says security trumps all. And if it is indicated that these facilities must be brought – relocated or brought behind a fortified line of some sort, she of course understands that. But I think what she’s asking is for people just to simply stop and think and consider this, consider whether or not the mission would be interested in coming in for what we call a co-location waiver, whether or not there is a circumstance in which that space could be apart from the mission offices and such.

And we’ve had some good luck. We’ve had a couple of waivers granted in the past year, one in Ouagadougou I recall. And, you know, others are coming in as our missions – and this is, again, an all-of-missions thing – the chief of mission must sign off on these requests – as missions decide, you know, whether or not they’d like to make the request for a co-location waiver.

The issue here is the legal requirement that all U.S. diplomatic offices abroad be collocated on a single embassy compound in the principal place of USG business in that city. You can read all about it here, in 12 FAM 300. The requirement is invoked whenever a new embassy office facility is constructed or acquired.

(By the way, "collocation" is the correct spelling of the word, with two "l"s and no hyphen, although it is almost always misspelled as "co-location." That misspelling is my pet peeve, and correcting it is my lost cause.)

The collocation requirement may be waived, and so the R Bureau routinely puts up a fight to keep public diplomacy outreach facilities outside whenever new embassy compounds are planned. The position as Ms. Whitaker stated it, i.e., that the Department ought to consider waiving the collocation requirement on a case-by-case basis, is impeccably reasonable. This is basic risk management. The program benefits of making public diplomacy facilities easily accessible to the public can, in a rational world, be articulated and weighed against the security risks, and the increased security costs, of having a comparatively 'soft target' official facility in an annex across town from a new embassy compound.

Let the Ambassador make the request, and let the Secretary decide. Everyone signs on the dotted line, and accountability is established. Fair enough.

My personal interest in this matter is only indirectly with public diplomacy, in that I liked the old independent American Libraries and think they ought to be brought back into the mix of PD platforms, but I am directly interested in good risk management. As the wise man who hired me for my first job in DS said when he gave me the Foreign Affairs Handbook that contained our security standards: "These are the standards, but, of course, they have to be applied by reasoning human beings." I have always tried to apply reason to them, and I find they are much more persuasive that way.

Senator Lugar Wants to Bring Back American Centers

Consumer Notice: This post is certified to be 100% free of Matters of Official Concern that are not referenced from publicly available sources of information.

I see that Senator Lugar has called on the State Department to "reinvigorate the old American Center concept" of cultural outreach facilities that are located apart from embassy office compounds. A good idea, I think, and one I've commented about here.

Some key quotes from the Senator:

But after the Cold War, the United States prematurely declared victory in the battle for hearts and minds, terminating the U.S. Information Agency, which ran the centers, and cutting the State Department's public diplomacy budget. Many thought the Internet and global satellite TV would render irrelevant the people-to-people exchanges fostered by the centers.

Separately, U.S. diplomatic facilities overseas became more isolated. Following the 1998 bombings by Al Qaeda of two U.S. embassies in Africa that killed 12 Americans and more than 200 Tanzanians and Kenyans, the United States embarked upon a major construction program to build new embassies protected against terrorist attacks. Many embassies are now far from city centers and impose time-consuming security procedures upon all visitors. Additionally, most U.S. civilian employees are required to work within the embassy perimeter.

Those security upgrades were necessary, but the result has been less day-to-day interaction between U.S. diplomats and locals. Stripped-down outreach facilities, now called Information Resource Centers (IRCs), are often located within embassy compounds and open to the public by appointment only. State Department statistics show that IRCs within embassy walls in the Middle East received only one sixth as many visitors as those off-compound. Clearly, reaching a wider audience will require creative adjustments to the United States' security approach, keeping in mind that the safety of U.S. personnel must be paramount.

And, his recommendation is that:

As part of a broader overhaul of its public diplomacy effort, the United States should reinvigorate the old American Centers concept - putting, when possible, new ones that are safe but accessible in vibrant downtown areas - support active cultural programming, and resume the teaching of English by American or U.S.-trained teachers hired directly by embassies. That would help draw people to the centers and ensure that students got some American perspective along with their grammar.

Far be it from me to nit-pick what a U.S. Senator says, especially when I agree with him, but permit me to quibble about three of his points:

"Many embassies are now far from city centers"

Actually, only new embassies - meaning those that were built under the new construction program that started around 2000 - are located far from city centers, and not all of them are. Only 21% of our embassies and consulates are new ones, so I doubt the location factor alone can account for a systemic loss of public access. Many of the remaining 79% of our diplomatic facilities are right smack in the middle of downtowns areas, even those so excessively 'vibrant' (Damascus and Belgrade, for example) that it would be safer for our embassies to be a little more distant. Still, I take his point: our embassies get fewer walk-in visitors than our old American Centers did.

Incidentally, I get my information about the percentage of new diplomatic facilities from a recent General Accountability Office report which noted that from 1999 to 2008 only 64 new embassies, consulates and annexes were completed, and from the State Department's website which lists a bit over 300 overseas diplomatic missions.

"[M]ost U.S. civilian employees are required to work within the embassy perimeter"

The Senator is referring to what is known as the collocation requirement, in accordance with which all the offices and agencies under the authority of the Ambassador in a given country must be located together on a single compound rather than scattered around town. I must note the collocation requirement is not some State Department security standard, but rather part of Public Law 106-113, Title VI, Section 601, known as the "Secure Embassy Construction and Counterterrorism Act of 1999." The same law also requires every diplomatic facility to have a certain setback distance between it and the perimeter of the property on which it is located, something which is rarely possible in downtown areas and therefore contributes to the embassy remoteness problem.

The Secure Embassy Construction and Counterterrorism Act says in part:

Site Selection - In selecting a site for any new United States diplomatic facility abroad, the Secretary shall ensure that all United States Government personnel at the post (except those under the command of an area military commander) will be located on the site.

Perimeter Distance - Each newly acquired United States diplomatic facility shall be sited not less than 100 feet from the perimeter of the property on which the facility is to be situated.

The law defines a diplomatic facility very broadly, to include any "other office" no matter whether it has a public outreach purpose:

In this title, the terms `United States diplomatic facility' and `diplomatic facility' mean 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.

"Clearly, reaching a wider audience will require creative adjustments to the United States' security approach"

Clearly, it will. And I, for one, am all in favor of creativity in approaching security problems. However, no adjustments can be creative enough to overcome the collocation and setback restrictions imposed by Public Law 106-113.

If Senator Lugar really wants to be helpful, he ought to sponsor a bill to amend the law so as to exempt American Centers. Then we might be able to open a few in those city centers where he wants them to be.