By Ingrid Burke, RAPSI
As video footage of a film aimed at discrediting Islam fanned the flames of anti-American sentiment throughout the Middle East and North Africa last week, protesters stormed the US Consulate in Benghazi, Libya, firing on security personnel and setting its main building ablaze. Four US officials, including Ambassador Christopher Stevens, were killed in the rampage.
RAPSI spoke with officials from the Federal Bureau of Investigations (FBI) and the US Department of State (USDOS) in an effort to understand the legal aftermath of the attacks.
The timeline of events
On September 8, clips of the trailer for a low-grade and (at that point) almost universally unknown film by the name of “Innocence of Muslims” were aired by an Egyptian television network. The trailer had been uploaded in June, but attracted little attention prior to its televised debut. The trailer, which depicts the Prophet Mohamed as something of a sexual deviant, evoked a rage that soon boiled over in the form of anti-American protests staged at US embassies and consulates in Egypt and Libya. Protests soon spread like wildfire to Muslim countries, as well as those with large Muslim populations.
The protest staged at the US Consulate in Benghazi escalated into chaos as armed protesters overtook the premises shortly after 10pm local time, firing into the main building and then setting it on fire. Libyan and DOS security forces both responded to the attack. According to a special briefing released by the DOS shortly afterward, “At that time, there were three people inside the building: Ambassador Stevens, one of our regional security officers, and Information Management Officer Sean Smith. They became separated from each other due to the heavy, dark smoke while they were trying to evacuate the burning building.”
The regional security officer escaped the building and then returned in search of his colleagues. At that point, he discovered that Smith had already died, but was unable to locate Ambassador Stevens.
The fire continued to blaze amidst continued small arms fire as protesters and security forces struggled for control of the main building. By midnight, the fighting spread to a nearby annex building, where the two security officials were killed. Around 2am, Ambassador Stevens’ body was recovered by Libyans who then brought him to a local hospital where he was declared dead.
In the aftermath of these tragic events, the terms “disgusting and reprehensible” have featured prominently in any mention of the film by such high-ranking officials as President Barrack Obama, Secretary of State Hilary Clinton, and US Ambassador to the UN Susan Rice. Still, freedom of expression concerns have prevented the administration from imposing a ban the film. Speaking to this point, White House spokesman Jay Carney explained, “We have made clear that we find it offensive and reprehensible and disgusting, but we… cannot and will not squelch freedom of expression in this country. It is a foundational principle of this nation.”
In response to the attacks, the US has taken two major initiatives: the deployment of armed forces to Libya and Yemen, and an FBI investigation.
Troops deployment under the War Powers Resolution
President Obama deployed the US forces equipped for combat to Libya and Yemen in the immediate aftermath of the Benghazi Consulate attack. Speaking with RAPSI, USDOS spokesman Edgar Vasquez explained that: “Last week, consistent with the War Powers Resolution, the President notified Congress of the deployment of security forces to Libya and Yemen to protect U.S. personnel in Libya and Yemen.”
Importantly he noted that, “These deployments were made with the consent of the Governments of Libya and Yemen.”
The War Powers Resolution (WPR) was enacted in 1973 in order to strike a proper balance in the distribution of war powers granted by the Constitution to the president and Congress respectively.
The WPR vests the president with discretion to introduce US armed forces “where imminent involvement in hostilities is clearly indicated by the circumstances” in three narrow instances: a declaration or war, a specific congressional grant, or - relevant to the present circumstances - in case of a “national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
The president’s otherwise broad WPR authorities are tempered by exhaustive reporting requirements, time limits, and Congress’ authority to remove troops without presidential consent by way of a concurrent resolution. The president’s soul authority to deploy troops expires after 60 days (or 90 under extenuating circumstances). At this point, the president is required to pull US forces from combat unless Congress has either specifically authorized their deployment, or has issued a declaration of war.
In compliance with the WPR reporting requirements, Obama issued a letter last Wednesday informing Congress that, “in response to an attack on our diplomatic post in Benghazi, Libya, that killed four U.S. citizens, including U.S. Ambassador John Christopher Stevens, a security force from the U.S. Africa Command (US AFRICOM) deployed to Libya to support the security of U.S. personnel in Libya,” and that additional security forces had been deployed to Yemen.
The president stressed that his present intent is not to wage war, explaining that, “Although these security forces are equipped for combat, these movements have been undertaken solely for the purpose of protecting American citizens and property. These security forces will remain in Libya and in Yemen until the security situation becomes such that they are no longer needed.”
He concluded with an emphasis on his authority to deploy these troops by virtue of his constitutional grant to conduct US foreign relations, and his role as Commander in Chief and Chief Executive. He added that he was acting in compliance with the WPR.
The US AFRICOM is a specialized regional military command comprised of air force, army, marine, navy, and special operations forces.
FBI Investigation in Libya
When asked about the status of its investigation into the deaths of Ambassador Stevens and the other three US officials in connection with the Benghazi Consulate attack, FBI Spokeswoman Kathleen Wright told RAPSI that, “The FBI has an open investigation into the deaths of the four U.S. citizens in Libya and the attack on the U.S. consulate in Benghazi, Libya.” Predictably, however, FBI policy dictates against the provision of information on ongoing investigations.
While the FBI enjoys a broad mandate - the broadest of any federal investigative agency, according to its website - that extends its jurisdiction to anything not allocated by Congress to another federal agency, the FBI primarily operates domestically. International operations are carried out by way of its legal attaché program. The FBI currently has 76 legal attaché offices strategically located around the world, which monitor upwards of 200 countries and territories of interest to the US government.
The official description of the program is as follows: “the FBI has stationed special agents and other personnel overseas to help protect Americans back home by building relationships with principal law enforcement, intelligence, and security services around the globe that help ensure a prompt and continuous exchange of information.”
The Obama administration has not yet adopted an official stance on where the results of the investigation should be adjudicated. When Carney was asked during a press briefing Friday whether the cases of those already reportedly arrested in connection with the attacks will fall within the jurisdiction of the US courts, he answered, “This is an ongoing investigation. We’re obviously working with… the Libyan government on this matter. The President has made clear that he wants the assailants, the attackers to be brought to justice. But I am not going to prejudge outcomes or courses of action as this investigation is underway.”
Notably, the FBI prides itself on the fact that its international operations don’t lead exclusively to US prosecution. An official release detailing advances made to the agency’s international operations, “Rather than focus on bringing a suspect back to the U.S. to face prosecution, we now offer whatever assistance we can to other governments to support their efforts to fight terrorism, cyber crime, and transnational criminal enterprises. In some countries, we are working together on task forces and conducting joint operations.”
This case presents unique jurisdictional issues insofar as the events that gave rise to the investigation occurred within a US consulate on Libyan soil. The Vienna Convention on Diplomatic Relations (VCDR) assigns to embassies and consulates a special protected status by establishing the inviolability of mission premises (and thereby prohibiting nonconsensual entry by receiving state agents); the duty of receiving states to protect and secure foreign mission premises; and the “immunity of premises from search, requisition, attachment or execution.”
In accordance with the VCDR, the US Consulate in Benghazi functioned for most intents and purposes as US sovereign territory.
It remains to be seen how this factor will impact criminal jurisdiction arising from the FBI investigations currently underway.