Administration Relying on Shoddy Benghazi Report to Absolve Itself of Blame

May 13, 2013

The White House has touted the Accountability Review Board (ARB) investigation of the Benghazi massacre as a review “led by two men of unimpeachable expertise and credibility that oversaw a process that was rigorous and unsparing.” In fact, the report was purposefully incomplete and willfully misleading.

The two men in charge of the ARB, Ambassador Thomas Pickering and Admiral Michael Mullen, a diplomat and military man respectively, have no meaningful investigative experience. Instead of letting the facts lead the direction of the investigation, the report appears designed to protect the interests of Hillary Clinton, the State Department higher ups, and the president.

A most obvious question is: why was Secretary Clinton never interviewed for the investigation? She is mentioned only once in the report, as the person who convened the Board. If, as Clinton herself has said, she took full responsibility for what happened in Benghazi, her decisions and decision-making process are materially relevant for investigating what happened before and during the night of September 11, 2012, and preventing what went wrong from ever happening again.

Other relevant questions the report does not answer are: How often did Clinton and President Obama speak during the attack? What decisions did the president make, and what orders did he give? What was the hour by hour participation of the president during the attack?

My husband, Joseph diGenova, and I represented two State Department whistleblowers for the House Oversight and Reform Committee hearings held last week, on May 8. Mark Thompson, my husband’s client, testified that he asked twice to be interviewed by the ARB and was not. Mr. Thompson was the deputy assistant secretary in charge of coordinating the deployment of a multi-agency team for hostage taking and terrorism attacks. Yet, he was excluded from all decisions, communications, and meetings on September 11 and 12, 2012. Why? Others asked to be interviewed and were not. Until they see how my client, Gregory Hicks, former chargé and deputy chief of mission (DCM) in Libya, and Mr. Thompson fare after their testimony, they will not step forward.

In addition, the ARB used procedures no seasoned investigator would ever follow. More significantly, the process was unfair to the witnesses. For example, no stenographer was present. So there is no verbatim transcript of testimony from each witness. The ARB used note takers. Mr. Hicks was not allowed to review the note taker’s document that supposedly reflects what he said, but is limited to what the note taker thought he heard and decided to record. Mr. Hicks was not permitted to review the draft ARB report to suggest corrections or point out any omissions. He has never been allowed to read the classified report.

The unfair process, in fact, has become even more troubling since I received calls from reporters after last week’s hearing telling me that unnamed State Department persons are whispering that Mr. Hicks’s statements to the ARB are “inconsistent” with his congressional testimony. The congressional testimony is more expansive because both Democratic and Republican staff interviewed Mr. Hicks, and others, for nearly five hours. By contrast, the ARB questioned Mr. Hicks for only two hours, despite the fact that he was the highest-ranking State Department official in Tripoli the night of the attack. Inconsistent? No! And how would anyone disprove that false claim without a transcript?

The ARB report has at least one significant discrepancy, inconsistent with what Mr. Hicks told the Board. He specifically stated, with Pickering present, that the reason Ambassador Christopher Stevens went to Benghazi was to establish a permanent constituent post, an assignment received directly from Clinton in May 2012 when he was sworn in as ambassador. Soon after, Stevens told Mr. Hicks about this assignment over lunch when they discussed the procedures for getting the task done. When Mr. Hicks arrived in Tripoli in July 2012 they revisited the needs related to making Benghazi a permanent post. At the time, Stevens had out of country commitments and could not go to Benghazi until September. The trip was scheduled for mid-September because the report about building structures and security had to be submitted before the end of the fiscal year: September 30.

When Mr. Hicks told the ARB the reason for the trip, Pickering visibly flinched and said: “Does the 7th floor know about this?” (The office of the Secretary of State is on the 7th floor.)

This relevant information was omitted in the ARB’s unclassified report. Worse, it was concealed by a false statement: “The Board found that Ambassador Stevens made the decision to travel to Benghazi independently of Washington, per standard practice. Timing for his trip was driven in part by commitments in Tripoli, as well as a staffing gap … in Benghazi.” Mr. Hicks testified in the hearing that Washington was well aware prior to the trip that Stevens was going to Benghazi.

Many observers have deplored the ARB's conclusion assigning responsibility to lower-level career officials at State for all mistakes, while clearing the political appointees above the assistant secretary of any missteps. It is a convenient finding—at least, for the State Department higher-ups. But the ARB's shoddy report is an insult to the memory of four dead Americans. The truth, even or especially at this point, does make a difference.

Victoria Toensing, former chief counsel for the Senate Intelligence Committee and deputy assistant attorney general, is founding partner of diGenova & Toensing, a Washington, D.C. law firm.





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