Updated on 10/3/2012 @8:23 EST

The Cable’s Josh Rogin reports that  the State Department is setting up an independent, bipartisan panel to investigate what happened in the Sept. 11 attack of the Benghazi consulate that resulted in the death of Ambassador Chris Stevens and three other Americans.  The report cited  Deputy Secretary of State Tom Nides telling SFRC chairman John Kerry (D-MA) that the State Department had begun setting up the panel.

Last week, Secretary Clinton herself told reporters that the panel would be chaired by Ambassador Thomas Pickering, a highly regarded retired U.S. diplomat who served as ambassador to Russia, India, Israel, El Salvador, Nigeria, Jordan and the U.S. Mission at the United Nations.

The regulations that govern the Accountability Review Board were established by law crafted by Congress under either Title III of the Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended (22 U.S.C. 4831) or Section 140(c).

Here is the stated objective:

The ARB process is a mechanism to foster more effective security of U.S. missions and personnel abroad by ensuring a thorough and independent review of security-related incidents. Through its investigations and recommendations, the Board seeks to determine accountability and promote and encourage improved security programs and practices. In addition, the ARB mechanism enhances the integrity of the visa issuing process by determining accountability in certain instances in which terrorist acts in the United States are committed by aliens.

Security-related incident refers to: “A case of serious injury, loss of life, or significant destruction of property at or related to a U.S. Government mission abroad, or a case of a serious breach of security involving intelligence activities or a foreign government directed at a U.S. mission abroad (other than a facility or installation subject to the control of a U.S. area military commander).”

With this exception:

Public Law 109-140 and Public Law 111-117, the Secretary of State is not required to convene a Board in the case of an incident involving serious injury, loss of life, or significant destruction of property at or related to a U.S. Government mission in Afghanistan or Iraq and which occurs in the period beginning on October 1, 2005 and ending on September 30, 2010. *

What can possibly be going on behind the scenes?

Within the State Department is supposedly a small group called the ARB Permanent Coordinating Committee (ARB/PCC). What does it do?

The Committee will, as quickly as possible after an incident occurs, review the available facts and recommend to the Secretary to convene or not convene a Board. (Due to the 1999 revision of the law requiring the Secretary to convene a Board not later than 60 days after the occurrence of an incident, except that such period may be extended for one additional 60-day period the Committee will meet within 30 days of the incident, if enough information is available.) In addition, the Committee will meet yearly to review the ARB process, existing policies and procedures, and ensure that any necessary changes are effected.

A check with the current directory dated September 12, 2012 does not include a list of this committee. But in any case, a decision has already been reached that an ARB will be convened.

Who are the members of the ARB/PCC?

The FAM lists the membership of the ARB/PCC as follows:

(1) The Director of the Office of Management Policy, Rightsizing and Innovation (M/PRI), who will chair the Committee. ( The Director of M/PRI is currently listed in state.gov as William J. Haugh but the Sept 12,2012 directory indicates that this position is currently vacant).

(2) The Assistant Secretary for Diplomatic Security or the Principal Deputy; (this is currently, Eric J. Boswell or PDAS, Scott P. Bultrowicz)

(3) The Senior Deputy Assistant Secretary for Intelligence and Research; (currently listed as Principal Deputy Assistant Secretary Daniel Rubenstein)

(4) The Coordinator for Counterterrorism; (this would be the Ambassador-at-Large & Coordinator Daniel S. Benjamin)

(5) The senior deputy assistant secretary (or secretaries, as appropriate) of the relevant regional bureau(s); (the Principal Deputy Assistant Secretary for the Bureau of Near Eastern Affairs  is Elizabeth L. Dibble)

(6) One representative designated by and representing the DNI; and

(7) The Deputy Assistant Secretary for Visa Services (currently listed Deputy Assistant Secretary for Visa Services (CA/VO) is Edward J. Ramotowski)

c. Other participants: As a result of the State-Justice Memorandum of Understanding (MOU) dated September 20, 2001, the Department of Justice has been invited to attend PCC meetings. Also, as determined by the Chairperson, representatives of other offices and agencies may be invited to work with the Committee.

In addition, the Director of the Office of Management Policy, Rightsizing and Innovation (M/PRI) shall appoint a member of the M/PRI staff to be the ARB Staff Officer. If M/PRI is indeed vacant, then that is a problem, isn’t it?  The ARB Staff Officer will:

(1) Oversee the ARB process and ensure that all policies and procedures relating to the ARB are adequate and up-to-date;
(2) Serve as the institutional memory and primary point of contact within the Department for ARB matters;
(3) Maintain all permanent files, rules, procedures, rosters, libraries, etc., for the ARB; and
(4) Carry out ARB related staff work for the Committee.
b. ARB Executive Secretary: When a Board is convened, M/PRI will name an Executive Secretary to coordinate and facilitate the work of that Board. The Executive Secretary will normally be a senior Foreign Service officer or a retired senior Foreign Service officer who is recommended by DGHR/CDA. The tenure of the Executive Secretary will coincide with the tenure of the Board.

As well, the ARB Staff Officer maintains a list of potential members and at the Committee’s yearly meeting the list will be reviewed and updated. If the Committee recommends that the Secretary convene a Board, it will forward a list of potential Board members to the Secretary for approval. The Committee coordinates its activities in this area with the DNI’s representative.

Convening the ARB, Congressional Notification and Timeframe

According to regulations, the Secretary of State, makes the decision to convene a Board in writing and sets forth the names of the Board’s Chairperson and members, the purposes and jurisdiction of the Board (as established in Section 304 of the Act or, as appropriate, Section 140(c)) and its duration. The decision will be published in the Federal Register, or other similar document, if deemed appropriate by the Secretary.

As of to-date no noticed has yet been published in the Federal Register. However, the Secretary has 60 days from the occurrence of an incident to convene the ARB.  An extension of an additional 60 days is provided at the Secretary’s determination.  Any further delay beyond this requires congressional notification.

Whenever the Secretary convenes a Board, the Secretary is also required to promptly inform the chairman of the Committee on Foreign Relations of the Senate and the Speaker of the House of Representatives that the Board has been convened, the membership of the Board, and other appropriate information about the Board.

As to the timeframe of the ARB, the Board is expected to begin its work within a reasonable period of time following the Secretary’s decision to convene the Board. And it must be given ample time to conduct its investigations and write its report. Should a Board decide that the time allotted for its work is insufficient, it must apply, in writing, to the Secretary for an extension of time. A Board’s authority terminates on the date set forth in the Secretary’s order convening the Board, or on such date as is subsequently set by the Secretary.

The regs also says that the Secretary will, not later than 90 days after the receipt of a Board’s program recommendations, submit a report to the Congress on each such recommendation and the action taken or intended to be taken with respect to that recommendation.

ARBs Through the Years

Unfortunately, this is not the first ARB convened nor will it be the last.  The ARB with the most attention, of course, is the twin-ARBs chaired by Admiral William Crowe for the Embassy Bombings in Nairobi and Dar es Salaam on August 7, 1998. Admiral Crowe was sworn in September 2008 and the final report was released publicly in January 1999. The members of that ARB are listed here. Other ARBs were convened in 2003, 2005 (twice), 2006, 2008, then 2010 as follows:

• On 27 Jan 2003, an Accountability Review Board was convened for the Murder of Laurence Foley, USAID Official in Amman, Jordan. Secretary Colin Powell appointed Ambassador Wesley Egan as Chair of the Board. He was assisted by Frederick Mecke, Timothy Deerr, George Wachtenheim, Charles S. Phalen, Jr., and by Executive Secretary Howard Perlow.

• On 11 Mar 2005, the Accountability Review Board for the December 6, 2004 Attack on the U.S. Consulate in Jeddah, Saudi Arabia was convened.  Secretary Condolezza Rice appointed David C. Fields, a retired U.S. ambassador, as Chair of the Board. He was assisted by Melvin Harrison, John Geoff O’Connell, Carolee Heileman, Robert Benedetti and by the Executive Secretary to the Board, Mark Jackson.|

• On 8 December 2005, Secretary Rice convened another Accountability Review Board to Examine the Circumstances of the Death of DS Special Agent Stephen Sullivan and Seven Security Contractors in September 2005 in Iraq.  She appointed Edward G. Lanpher, a retired U.S. Ambassador, as Chair of the Board. He was assisted by M. Bart Flaherty, Frederick Mecke, Mike Absher, Laurie Tracy and Executive Secretary to the Board, Robert A. Bradtke.

• On May 2006  an Accountability Review Board To Examine the Circumstances of the Death of David E. Foy and Mr. Iftikhar Ahmed in March 2006, Karachi, Pakistan was convened. Secretary Rice appointed David C. Fields, a retired U.S. Ambassador, as Chair of the Board. He was assisted by Carolee Heileman, William Pope, Melvin Harrison, John Weber and the Executive Secretary to the Board, Hugo Carl Gettinger.
• On 14 April 2008, Secretary Rice convened her fourth ARB, this time to Examine the Circumstances of the Death of John M. Granville and Abdelrahman Abees in Khartoum, Sudan in January 2008.  She appointed Michael W. Marine, a retired U.S. ambassador, as Chair of the Board. He was assisted by M. Bart Flaherty, Wayne S. Rychak, Lewis R. Atherton, Michael Pastirik and by Executive Secretary to the Board, Hugo Carl Gettinger.

• On 22 October 2010, Secretary Clinton convened the first ARB during her tenure relating to the Death of Three DoD Personnel Assigned to the U.S. Embassy’s Office of Defense Representative Pakistan (ODRP) on February 3, 2010. She appointed Joseph Lake, a retired U.S. ambassador, as Chair of the Board. He was assisted by Robert Bryson, Lewis Atherton, Barbara Martin, Wayne Rychak and by the Executive Secretary to the Board, Linda Hartley.

With the exception of the Nairobi/Tanzania ARB which is online, none of the above ARB reports appear to be accessible to the public which makes us genuinely grumpy.

As far as we know there was no ARB convened for the August 8, 2012 suicide bombing at the Kunar Province of Afghanistan that killed a USAID Officer and wounded an FSO. The USAID/State officers were  presumably under the control of a military commander, so an ARB is not required.  We are also unaware of an ARB for the September 3, 2012 suicide car bombing which targeted a US Consulate General Peshawar vehicle that wounded four staffers.

Both cases, of course, are still within the 60 days (plus 60) timeframe for convening the Board.

>>>>>

Below is the section where I need to wear a paper bag over my head 😳 . No great excuse for the mess up except to cite the perils of blogging at midnight.  The 60 days (plus 60) provision under the regs is only for convening the ARB. Once the Board is convened, there does not appear to be anything on the regs that dictates the tenure of the Board except that it be given ample time to do its work. I believe that the Secretary may also specify the length of the Board (The FR notice says the Board will submit its conclusions and recommendations to Secretary Clinton within 60 days of its first meeting, unless the Chair determines a need for additional time). The only publicly available report was on an ARB convened sometime after September 1998 and with final report out in January 1999.  While I cannot make a direct correlation on the timeframe  in that ARB with the ARB for Benghazi, the place of investigations for the former included Kenya and Tanzania, where security issues were not as difficult as Libya in its post-civil war state.  I remain skeptical that the DS/OIG would have better luck putting agents on the ground than the FBI in support of the ARB or that the report would be ready before the election or the inauguration.

If we presume the shortest route possible for the Benghazi Attack ARB– let’s say the full Board is convened by end of October, it shall have until the end of December to do its work. Which is way too late for politicians in the middle of an election.  The Board can have an additional 60 days if needed, which would put us until the end of February.  Way too long after the inauguration of either a second term president or  first term president. If true that the FBI agents have yet to set foot in Benghazi, how long do you think it would take for the DS/OIG agents to get shoes on the ground?

So then, apparently, our senators could not wait to get more answers about the Benghazi attack.  They sent a letter to Secretary Clinton demanding more answers, and the letter itself has already sparked a partisan disagreement.  Is it a huge shocker then that Congress which created the ARB back when, could not wait for the ARB to start/conclude its work now?

Maybe Congress ought to seriously rethink the idea of an Accountability Review Board for the following helpful reasons:

1) Since Senators do not have the patience to wait 60-120 days for the ARB to work and deliver its report, and now uses the dead as political props, they deserve rotten tomatoes on their faces (pies would do also).  Why create the ARB in the first place if you do not trust that it will deliver the results you need? Go delete it from the regs so there is one less issue of 9,999 partisanship issues in Congress that you can concentrate on.

2) The ARB investigations are supported by OIG and DS agents, not by FBI agents who already are conducting their own interviews. If you double the work, will you double the results?

3) We note that the ARB exemptions for security incidents in Iraq and Afghanistan went into the books after the September 2005 attack which killed DS Agent Sullivan and seven contractors in Iraq.  How is it that we do not wish to “determine accountability and promote and encourage improved security programs and practices” in war zones?  Too much work or too many deaths?

That said, if you do not want to scratch out the ARB from the rules books, can you please make sure that all ARB reports are accessible to the nosy public?

*
Pub. L. 112–74, div. I, title VII, § 7034(m)(2),Dec. 23, 2011, 125 Stat. 1216, provided that: “The authority provided by section 301(a)(3) of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (22 U.S.C. 4831 (a)(3)) shall remain in effect through September 30, 2012.”