We blogged yesterday that Secretary Clinton is scheduled to testify at HFAC on Thursday, December 20.

She is also listed as sole witness on the 9:00 am, December 20, hearing at the SFRC on BENGHAZI: The Attack and the Lessons Learned.

We noted previously that the unclassified ARB on the 1998 East Embassy bombings is publicly available but that the other ARB reports through the last several years are not.   Due to intense public and congressional interest on this incident, we have always presumed that the unclassified portion of the Pickering ARB report will be released to the public.

Then you get this back and forth during the Daily Press Briefing between the State Dept spokesperson Toria Nuland and a member of the press that made us scratch our head.

QUESTION: So as – just to change the subject. As you know, Congress has set a date for Secretary Clinton to testify on Benghazi. So does that mean that the ARB is done now? And has she seen it? Have you seen it?
MS. NULAND: First of all, we talked about this a little bit yesterday. The ARB is continuing to do its work. To my knowledge, it has not yet concluded its work. As you know, it’s decided to keep its deliberations confidential until it is finished. As we’ve been saying, our expectation is that after the ARB reports to the Secretary, then she will have consultations with Congress in terms of the conclusions that she draws about how we need to go forward from there. So obviously, we’re planning ahead, but I don’t have any dates to announce until we have firm dates on when the ARB is coming forward.
QUESTION: Does Congress get a copy of the ARB, and do Mullen and Pickering either brief Congress or brief the press?
MS. NULAND: The ARB’s responsibility is to brief the Secretary. The Secretary has said that she will be transparent and open with Congress. I don’t have anything further to announce. I think we need to let the ARB report come forward, and we’ll go from there.
[…]
QUESTION: She does intend to testify next Thursday on the 20th of December?
MS. NULAND: Again, the Hill has talked about a planning date on the calendar. That presumes that the ARB is finished. I don’t have any dates – any schedule of the Secretary’s to announce here. It’s dependent upon events between now and then.
[…]
QUESTION: She hasn’t committed to testify?
MS. NULAND: Again, it’s dependent on the work being finished. Okay?
QUESTION: Are you aware that Senator Kerry announced that she will testify next Thursday?
MS. NULAND: She has made clear that when the work is ready, she will go consult with Congress on it. And that’s a commitment she’s made, and she intends to keep it.
QUESTION: And it could be later. On the point that he made, under the ARB regulations, the report is required to be given to Congress within 90 days of its completion.
MS. NULAND: No. What is required, Josh, and we’ll get you the statute if you’d like, is that the Secretary’s response to the ARB’s conclusions has to go in writing to the Congress within 90 days of her receiving the report. She obviously will intend to consult with them far earlier than that, as she’s committed.

The reporter did not ask Ms. Nuland if Ambassador Pickering requested an extension to the 60 day authority of the Board, which should have expired on/about December 4.

The Cable’s Josh Rogin: State Dept: Clinton may not testify on Benghazi next week

The exchange seems to also indicate that the ARB report itself may not be submitted to Congress but that Secretary Clinton’s response to the ARB recommendations/conclusion will be.

So we went and dug up the regs once more.

On the ARB findings:  12 FAM 035.1 (b) specifies that “In its report to the Secretary, a Board makes written findings, which may be classified, as necessary.”

Given the presence of the CIA, we suspect that a large chunk of the report will be classified.  The Board itself has no classification authority.  So the Director of M/PRI (reportedly Alaina Teplitz) will exercise classification authority for materials originating from Board activities according to the regs.

12 FAM 036.1 enumerates the types of reports that we can expect from the ARB:

1. A Board’s report to the Secretary on its findings and any program recommendations;
2. The Secretary’s report to the Congress on any program recommendations and the actions taken on them; and
3. Report(s) to the Congress by the head(s) of the concerned agency(ies) or instrumentality(ies) on any personnel recommendations.

12 FAM 036.3 specifically talks about the Reports to Congress:

“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.”

So yes, the regs did not say she has to submit the ARB report to the Congress, only that she submits a report on the ARB recommendation and the action taken.  There’s nothing that restricts her, of course, from sharing the ARB report (publicly or in closed doors, security classification excepted), but the ARB regulations do not appear to require her to do that.

Given the conspiracy theories already sprouting heads out of the Benghazi attack, we really hope there is a publicly available version of the report.

Updated@ 12/14:  After Toria Nuland’s suggestion yesterday that the ARB report on which Secretary Clinton’s testimony will be based might not be ready in time, the acting deputy spokesman offered some clarifications:

“The committees have announced the secretary will be on the Hill next Thursday, and so that’s the plan,” said Patrick Ventrell, the State Department’s Acting Deputy Spokesperson, in a briefing today. “We’ve been cooperating with Congress extensively and will continue to do so.”

Ugh! A few more of this and we will need dramamine.

Updated @ 12/15 11:17 am PST:
Deputy Assistant Secretary of State Philippe Reines on Saturday has the following email to reporters (via npr):

“While suffering from a stomach virus, Secretary Clinton became dehydrated and fainted, sustaining a concussion. She has been recovering at home and will continue to be monitored regularly by her doctors. At their recommendation, she will continue to work from home next week, staying in regular contact with department and other officials. She is looking forward to being back in the office soon.”

The AP is now reporting that Clinton’s aides on Saturday informed the SFRC chairman, Sen. John Kerry, about her health, and that “the Massachusetts Democrat,  “insisted that given her condition, she could not and should not appear” as planned, said Kerry spokeswoman Jodi Seth.  Senior department officials are expected to testify instead.” No word yet on how the HFAC hearing is going to proceed without its main witness.

Related articles

• As Clinton Prepares to Testify, Rep. Wolf Accuses Tunisia of Hampering FBI Probe Into Benghazi Attack (cnsnews.com)
• Clinton will testify in open hearing on Benghazi (redalertpolitics.com)
• HFAC on Dec 20: Secretary Clinton to Testify on Benghazi Post-ARB Release (diplopundit.net)
• New Diplomatic Security Office to Monitor 17 High Threat Diplomatic Missions (With ARB Update) (diplopundit.net)
• State Dept: Timing of Clinton testimony contingent on scheduling (cbsnews.com)