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By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Benghazi hearings of foreign service officers yesterday.  As a foreign service brat, when the tragedy happened, I was certain there was a screw up at Main State as well as in Tripoli rather than some nefarious conspiracy.

On the one hand, when one is going to be in a mission/consulate away from the Main Embassy on September 11th in a Middle Eastern country, it should be elementary that sufficient force be there to protect the Ambassador.  The Iraq Embassy experience would seem fairly relevant for that.  While a low-level foreign service officer like the one who recently was killed by Taliban in Afghanistan does not have the power to cause this to happen, an Ambassador should, before leaving.  I have not seen from the reports what were the discussions before the Ambassador left about the necessary security for this trip to the mission.  That would be interesting.

Next, from the contingent provided we see the result of the process – whether there was a request for more or not.  If there was a request for more security and more security was denied, the reasons for that denial at Main State would seem another area of inquiry.  By whom and at what level.

I suspect that the State command reaction on this was much like the 911 reaction of the police to the alleged calls over the years about naked women next door in the horrendous Cleveland case – strained resources coming up against multiple demands.  Triage and hope that one picks right.  This time one picked wrong.

Once the Benghazi attack started, more troops being sent and an Aviano plane flyover seem to be the next possible solution proposed at the Embassy.  The reports are that the more troops were nixed by Defense as was the Aviano flyover the latter due to lack of time and lack of a refueling plane.  Not even sure either of those would have been enough given the virulence of the attack.

Put another way, once the horse was out of the barn, there was no Plan B or too little available as a Plan B.  Inexcusable by the Embassy.  Appalling by Main State. In the make do situation, on the initial team and the reaction team, the call we are looking to be made is a call we ask our Defense Department to make. Given how much we value our soldiers, I am not surprised Defense was not willing to  send more troops in with high probability of them also being killed.  Cold business this Defense Department stuff – no matter how gung ho the special forces were to take the battle to them.

Too risk averse in the Defense Department? Maybe so, but they see things one way and the State person sees it another.  Remember the leeriness about sending troops into Libya during its civil war?  Nothing new under the sun so shortly thereafter.

Once people started dying, we then get to the weekend talk shows and Ambassador Rice’s performance.  Here we get the interagency weighing in and bureaucratic CYA operating – dismal but somehow not surprising whatever the party of the administration. Not privy to what was in the interagency, not able to know to what extent ( I am sure there is some but not sure just how much) this was being spun.  Person not in the loop + talking point = Rice as sacrificial lamb in the terrible political wars in DC.  Warned people at an ASIL meeting about knowing when you are in the loop or not.  She is a standup person but her sword was handed to her.  Maybe she should have been more skeptical – got played.  So it goes in this cold cruel Washington world.  Need a friend, get a dog.

As to retribution against the people speaking out, do not believe these people who testified have whistleblower status.   Admire their service and their courage for coming forward so we can hear their version – lived a terrible experience.

However, bureaucracies do not like to be made to look bad.  These whistleblowers must align their ambition with that of  Congress to survive.  To remain sane,  also prepare the way for the speaking and book circuit as a means of financing their life post these hearings.  The late Thomas Franck’s Resignation in Protest is not too promising on the outcomes for people who take these kinds of positions.

Where do we go from here? Like usual, Congress and the President have to be willing to admit there are serious risks, Main State needs resources, and all three should not nickel dime the folks in the field.  My dad served with State in war zones or near war zones like in Tunisia during the Algerian War and in Nigeria during the Biafran War.  The resources to protect him and his family on post were minimal in both settings – like sitting ducks that fortunately did not get in someone’s crosshairs.  In Tunisia, we went to the beach when I was real little with our French au pair and she was raped in front of us by a local – so much for security where we lived at the end of a road next to the dunes.  Beautiful but terribly exposed with the Algerian War and its havoc next store.  When we heard something, only solution was to call the police while my dad could be miles away in Tunis or worse on mission somewhere in the country.  In Nigeria, there was an unarmed night-watchman (watchnight) that was part of the rent for the housing, but we were as exposed as anyone could imagine.  As kids, all this was very exciting when we were on post, but looking back reminds me of my days hitchhiking in college around the United States – what was I (were they) thinking?  We grimly see that the resources dictate much of the outcomes.

Troubling thought:  all these people expressing outrage about the ineptitude and misleading of the American people and the deaths of four Americans do not seem to get the echo with the much huger disaster that is the intentional misleading of the American people into waging of the Iraq War on a lie as well as the 4000 dead and 30 000 wounded.  Surely that disaster is worth more scrutiny and accountability for higher-ups then this administrative screw-up that ended in  tragedy.  And I mean more than people being passed over for a promotion or people having trouble getting a nomination.  I am talking about a crime that should be prosecuted as I wrote about in my article “State Criminal Prosecution of a Former President: Accountability through Complementarity Under
American Federalism, 24 F.J.I.L.331 (2012)” available at SSRN:

But what do I know.