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Senate Report on Benghazi Cites “Grievous Mistake” for Non-Suspension of Operations Despite Vulnerabilities

The Senate Committee On Homeland Security And Governmental Affairs on December 30, 2012 issued its Benghazi report, Flashing Red: A Special Report On The Terrorist Attack At Benghazi.

The report says that the State Department’s Under Secretary for Management Patrick Kennedy noted in a briefing for the Committee, that Libya and Benghazi were “flashing red” around the time of the attack.

And?

The follow-up query and the response must have fallen off the, well, what else, the cliff!

The “flashing red” went kaboom !!!

… and four men were dead.

Here is one of the findings:

“Despite the inability of the Libyan government to fulfill its duties to secure the facility, the increasingly dangerous threat assessments, and a particularly vulnerable facility, the Department of State officials did not conclude the facility in Benghazi should be closed or temporarily shut down. That was a grevious mistake.”

The Senate report refers to the Benghazi post as the “Temporary Mission Facility in Benghazi.”  The ARB refers to the Benghazi post as the “The U.S. Special Mission in Benghazi” or the “U.S. Special Mission compound (SMC) and Annex.”

According to the ARB, the U.S. Special Mission in Benghazi, established in November 2011, was the successor to Chris Stevens’ “highly successful endeavor as Special Envoy to the rebel-led government that eventually toppled Muammar Qaddafi in fall 2011.”

2 FAM 411.1 dictates that the assistant secretary for the requesting regional bureau prepares a written proposal requesting authorization to open, close, or change the status of a Foreign Service post.

Presumably, the request to open the SMC in Benghazi originated from State’s NEA bureau, which has jurisdiction over Libya.

According to 2 FAM 400, the final decision to open, close, or change the status of a consular post, consular agency, branch, or special office is made by the Under Secretary for Management.  The same person who noted the “flashing red.”

There are 18 factors to consider in the books when opening or closing or changing the status of an overseas post. One of those factors, as may have been the case here considering the presence of OGA, is this:

(9) Expressed interest of U.S. Government agencies (other than the Department) in the maintenance of a post in the locality;

If you’re interested on how the final decision is arrived at, read up on 2 FAM 411.4.

Here are some other interesting parts of the Senate report:

  • U.S. government security personnel who were based in Tripoli had deployed to Benghazi by chartered aircraft after receiving word of the attack, arriving at the Benghazi airport at 1:15 a.m. They were held at the airport for at least three hours while they negotiated with Libyan authorities about logistics. The exact cause of this hours-long delay, and its relationship to the rescue effort, remains unclear and merits further inquiry. Was it simply the result of a difficult Libyan bureaucracy and a chaotic environment or was it part of a plot to keep American help from reaching the Americans under siege in Benghazi?

The host country government failed in its obligation to protect accredited members of the diplomatic corps, the least they can do is answer a few questions as to why security personnel were held at the airport for at least three hours.

A side note here. A second secretary at the Saudi embassy in Bangladesh was killed last March. Five men had just been sentenced to death for the diplomat’s murder. Saudi Arabia is a work destination for many Bangladeshis, so Bangladesh did not foxtrot around the death of a Saudi Arabian diplomat.

  • General Ham did not have complete visibility of the extent and number of government personnel in Benghazi in the event that a NEO was required. 88 If sufficient time had been available for such an evacuation, we are concerned that this limitation could have impeded AFRICOM’s ability to respond and fulfill its mission responsibility.

NEO interoperability between DOD and State has some challenges but we’ll have that for a separate post.

The Senate report further says:

States whose governments do not exercise full control over their sovereign territory, or that have a limited security capability, cannot be counted on to safeguard U.S. diplomatic personnel and facilities. This is usually true, of course, in the aftermath of a revolution or civil war – as was the case in Libya – where the provision of protective services by the host nations is unpredictable at best. In those instances, the Department of State must improve one or more of the other three protectors of mission security within its control: Marine Corps Security Guards, Diplomatic Security agents, or private security contractors.

There is already a move in Congress to increase the number of Marines to almost double its current size (1,200 Marine security guards currently assigned to more than 130 countries).

The State Department is also reportedly asking Congress for an additional $750 million to hire about 150 more security officers.

And the private security contractors could not be far behind.  Wired.com recently had a piece on the potential financial bonanza for security contractors for U.S. embassy security in the post-Benghazi era. The decision whether to continue spending cash on hired guards or to bolster the ranks of State Department employees that protect diplomats themselves will be one that must be tackled by the next secretary of state and soon.

The Senate report also has the following on funding and how they impact priorities:

Resourcing for security is a joint responsibility of the Executive Branch and the Legislative Branch. The Department of State’s decisions regarding security at the Benghazi facility were made in the context of its budget and security requirements for diplomatic facilities around the world. Overall, the Department of State’s base requests for security funding have increased by 38 percent since Fiscal Year (FY) 2007, and base budget appropriations have increased by 27 percent in the same time period. Other security funding provided beyond that in supplemental appropriations bills has been nearly entirely for diplomatic facilities in just three countries—Iraq, Afghanistan, and Pakistan.63 Less has gone elsewhere and very little is available to the temporary facilities such as the one in Benghazi.

Congress’ inability to appropriate funds in a timely manner has also had consequences for the implementation of security upgrades. RSO Nordstrom stated that Continuing Resolutions had two detrimental effects on efforts to improve security in Benghazi. First, the Department of State would only allow funds to be expended at a rate of 80 percent of the previous year’s appropriations level, so as not to risk a violation of the Anti-Deficiency Act. Second, in the absence of a supplemental appropriations or reprogramming request, security funds for Benghazi had to be taken “out of hide” from funding levels for Libya because Benghazi was not included in previous budget requests.

To the congressional reps and their friends who insist that the Benghazi tragedy has nothing to do with funding, the conclusion is simple: Congress’ inability to do its job has real deadly consequences.

Mistakes were made that’s for sure.  But no one honorable has yet come forward to claim those mistakes as his or her own.

And so we are painfully reminded that success has many parents. But a mistake is an orphan, conceived in a vacuum with neither father, mother or extended relatives present at creation. 😥

domani spero sig

 

 

 

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Shea v. Clinton: Title VII Discrimination Claim on 1990’s Mid-Level Minority Hiring Program

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color as well as national origin, sex, or religion.   It is unlawful to discriminate against any employee or applicant for employment because of race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment.  Title VII also prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related.

Not sure when this case was originally filed but this was first dismissed in 2003 until the decision was reversed and remanded two years later, so it has to be at least a decade old.

Below extracted from court files:

This is a Title VII discrimination claim brought by pro se plaintiff William Shea, a White career Foreign Service officer, against the Department of State (“State”). Compl., Mar. 3, 2002, ECF No. 1. State had a Mid-Level Minority Hiring Program (“MLAAP”) in force when it hired Shea in 1992. Mid-level hiring allowed State to hire a Foreign Service candidate directly into a higher grade, rather than into an entry-level grade. Mid-level hiring required a “certification of need” either that an outside hire was required, or the candidate was a member of a specified minority group under the MLAAP. Candidates for mid-level hiring were also required to (a) have substantial professional experience, (b) receive a passing grade on an oral examination, and (c) pass a background check. Shea alleged that he would have passed the screening process, but was excluded from consideration solely because of his race, as there was no certification of need. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, in violation of his rights under Title VII. Shea also alleged constitutional violations, but the Court dismissed those claims and Shea did not appeal the dismissal. The Title VII claim is the only one still before the Court. See Shea v. Clinton, 850 F. Supp. 2d 153, 156 (D.D.C. 2012) (providing factual and procedural history of case).

The Court originally granted State’s Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) because the statute of limitations had expired. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded. Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005) (holding that each time employer pays employee less than another for discriminatory reason, that pay event is a discrete discriminatory event with own statute of limitations).

In light of the Supreme Court’s subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)—which brought the D.C. Circuit’s analysis into question—this Court granted State’s Motion for Summary Judgment. Shea v. Rice, 587 F. Supp. 2d 166 (D.D.C. 2008). While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111–2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change. Shea v. Clinton, No. 08–5491, 2009 WL 1153448, at *1 (D.C. Cir. Apr. 2, 2009). This Court then denied the remaining portions of both parties’ Motions for Summary Judgment. 3 Mem. Order, Aug. 11, 2009, ECF No. 69. The Court also denied State’s subsequent Motion for Reconsideration. Order, Aug. 20, 2009, ECF No 71.

On July 23, 2010 the plaintiff moved to hold discovery deadlines in abeyance until resolution of his latest motions for reconsideration. ECF No. 86. In response, the Court stayed the entire matter until an April 6, 2011 status conference. Minute Order, Mar. 9, 2011. At that conference, the Court orally extended this stay. The stay remained in effect until the Court resolved plaintiff’s motions for reconsideration and motion for application of judicial estoppel. See Mem. Op. & Order Denying Pl.’s Mots. Reconsideration, Mar. 23, 2012, ECF Nos. 113 & 114; Mem. & Order Denying Pl.’s Mot. Judicial Estoppel, July 30, 2012, ECF No. 118.

On August 17, 2012, State filed a second Motion for Summary Judgment, ECF No. 120, raising the affirmative defense of mitigation of damages, id. at 34–36. Plaintiff objected to State first raising this affirmative defense in a dispositive motion, rather than in a pleading. Pl.’s Opp’n to Def.’s Second Mot. Summ. J. 34, Aug. 30, 2012, ECF No. 123. In response, the defendant submitted the present Motion to Amend Answer to add the affirmative defenses of laches and mitigation of damages to its Answer. Def.’s Mot. Am., Sept. 20, 2012, ECF No. 129. The Court will grant this motion, as allowing the amendments will not unduly prejudice plaintiff.

Read in full here.

domani spero sig