Sunday, February 08, 2004

The Whitewash Commission

I've already pointed out the nature of the allegedly "independent" commission named by George W. Bush to investigate the "intelligence failures" that led Bush and other top officials to allege that Saddam Hussein had weapons of mass destruction, which was the primary justification for invading Iraq in April of last year.

Namely, the commission leadership, as well as other of its members, is highly suspect. That this should occur when Bush himself is allowed to appoint a panel to investigate the actions of his own administration should come as no great surprise.

However, that's just the beginning of the problems with this commission. As Josh Marshall and others have observed, what really makes this alleged "investigation" grotesque is that the most germane question -- namely, Did the administration manipulate the intelligence available to it in such a way as to distort the reality of what was actually known about weapons of mass destruction? -- is in fact outside of the purview of this panel.

As Marshall puts it:
The commission doesn't appear to have any subpoena power, only the right to "full and complete access to information relevant to its mission as described in section 2 of this order."

… Anything the White House did with those CIA analyses, any fisticuffs between the Veep's office and the CIA, anything stovepiped through Doug Feith's operation at the Pentagon, anything that made its way from Chalabi's mumbo-jumbocrats to the the president's speechwriters -- that's all beyond their brief.

That this manipulation occurred seems highly likely. Recall, if you will, Washington Post warhawk columnist Jim Hoagland's pieces from before the war -- such as this one -- which detailed how Bush and his aides bullied CIA analysts into overstating the threat posed by Iraq. There have been numerous reports -- including this one from Time -- detailing Dick Cheney's arm-twisting visits to CIA headquarters to force those analysts to provide the administration with grist for its war mill.

But those questions will not be examined by this commission. Which means that they will not be examined at all -- at least not until Republicans are displaced from power in the Senate and House.

In the meantime, the makeup of the commission remains worth examining. Dwight Meredith at Wampum raises an excellent point about the appointment of Lloyd Cutler to the panel. As Dwight suggest, there's something seriously amiss when lawyers from the high-powered Washington firm of Wilmer Cutler Pickering are allowed to serve on the panel investigating the Sept. 11 attacks, as well as to act as witnesses for that panel, and to serve on the pre-war intelligence commission, all while simultaneously representing the Saudi Prince being sued by the Sept. 11 victims families as being the banker for Al Qaeda. It is a grotesque conflict of interest.

Meanwhile, the commission's co-chair, Chuck Robb -- one of its token Democrats -- is someone with a history of having ties to the Bush family. As Dan Conley details:
[M]y problem is with Robb as co-chair -- because he owes the Bush family too much. It was the Bush Justice Department that called off the dogs and allowed Robb to escape indictment in 1992. And why did they do that? I can think of three reasons:

1) Oil industry pressure. Robb was one of the best friends the U.S. oil industry had during his time in the Senate. Now why on earth would a Virginia Senator vote with the oil industry time after time? Robb was the son-in-law of Lyndon Baines Johnson ... his ties to Texas oil go way back. No doubt Robb and the Bush family have many of the same friends.

2) Electoral calculations. I would guess that the RNC and the Virginia Republican Party in 1992 preferred a weakened, unindicted Robb seeking re-election over an indicted and finished Robb who couldn't even win re-nomination over Doug Wilder or Virgil Goode. As it turned out, the GOP shot themselves in the foot by nominating Oliver North and Robb was re-elected ... but no one would have guessed that possible in 1992.

3) Payback. Chuck Robb provided a critical yes vote on Clarence Thomas ... without his support, the nomination would have gone down. Bush had a favor to repay.


Finally, Brad DeLong points to the strange decision to appoint both Patricia Wald and Laurence Silberman to the panel. Moreover, Silberman is the co-chair and clearly the head of the panel. Silberman's hatred for Wald is now legendary, and one cannot help but wonder if Wald will have any room to raise any kind of serious questions at all. Her appointment appears almost calculated to create serious internal tensions on the panel -- which might not be a bad thing, were it not for Silberman's history of manipulating official proceedings and intraagency conflicts for purposes of blocking legitimate outcomes.

Which brings us to the main event, namely, the commission co-chair himself. I've already described some of his previous activities. Here are the full details.

Laurence Silberman

The man named by George W. Bush to head has a longtime history as a notoriously partisan fixer and bulldog.

The first evidence of this came with his role in the October Surprise scandal. Here are the relevant excerpts from Gary Sick's definitive text on the case, October Surprise: America's Hostages in Iran and the Election of Ronald Reagan (Random House, 1991), pp. 116-123:
One of the most mystifying events of the entire election year took place in late September or early October 1980. The basic facts are not in dispute. [Future National Security Adviser] Richard Allen, together with Robert McFarlane and Laurence Silberman, met at the L'Enfant Plaza Hotel in Washington, D.C., with a Middle Easterner who offered to arrange the release of the American hostages directly to the Republicans. Beyond that rudimentary description, however, there is nothing but disagreement. Even people who admit attending the same meeting cannot agree on exact dates, times, or places.

… Allen has said that he was initially contacted by Robert McFarlane, then a senior aide to Senator John Tower of Texas. Tower was a longtime friend of vice-presidential candidate George Bush and he was at that time the ranking Republican on the Senate Armed Services Committee. McFarlane, a retired Marine Corps colonel, had been the executive assistant of the National Security Council under Henry Kissinger and Brent Scowcroft in the Nixon and Ford administrations, and he was a strong supporter of the Reagan presidential candidacy.

… According to Allen, Silberman, and McFarlane, they had a relatively brief meeting in late September with a man who appeared to be of Middle Eastern origin. This man, who claimed to be in contact with representatives of the Iranian government, made a presentation in which he offered to arrange the release of the American hostages directly to the Republican campaign. This offer was rejected out of hand, according to the three American participants, and the meeting was terminated abruptly. Allen and Silberman later insisted that the man made no mention of military equipment or the possibility of an arms-for-hostages swap.

… Silberman said he told the man his offer was totally unacceptable since "We have one President at a time."

However, as Sick goes on to detail, there are numerous problems with their account.

The unidentified Middle Easterner likely was a self-described international arms merchant name Hushang Lavi, who claimed that he was the man at the meeting. He says Lavi fits the physical description the Americans gave, and he furthermore had substantial evidence of being involved in the meeting (some of which actually surfaced independently through a third party after his death). Lavi claimed that he represented two officials of the Iranian government, and was offering the hostages in exchange for a pledge of F-14 parts -- the same parts, you may recall, that played such a key role in the Iran-Contra scandal. But Sick reports that Lavi claimed the refusal was not the noble one described by Larry Silberman:
According to Lavi, his offer was rejected, but his recollection differed from those of the Americans. Lavi said the three Americans refused his offer on the grounds that they were "in touch with the Iranians themselves" and did not need his assistance. Both Allen and Silberman later insisted adamantly in interviews that the man they met was not Lavi.

Much of Sick's book, in fact, details that Lavi's characterization was substantially the case -- that is, the Reagan camp in fact was in close contact with other Iranians who controlled the hostages and were capable of releasing them.

The source for one of the key pieces of substantiation for Lavi's participation in the meeting was Ari Ben-Menashe, who had been a top agent and official in the Israeli intelligence agency Mossad from 1977 to 1987, and was directly involved in Iranian affairs. Ben-Menashe later went on to write a book detailing some of the key aspects of the October Surprise affair in a book titled Profits of War, which was dismissed as fantasy by American and Israeli officials, but whose chief components were later substantially corroborated.

According to Sick, Ben-Menashe largely confirmed Lavi's participation, but with a twist:
According to Ben-Menashe, the L'Enfant Plaza meeting was the result of an effort by Israeli intelligence to hasten the end of the hostage crisis.

The Israelis, Ben-Menashe said, were becoming increasingly uncomfortable about their involvement in U.S. domestic politics resulting from the Casey-Karubbi meetings in Madrid. … So they attempted, without success, to short-circuit the entire problem by arranging a swap that would put an end to hostage issue before the election. Lavi, he said, was working for Israel when he helped to set up the L'Enfant Plaza meeting.

Ben-Menashe said that he traveled to the United States in late September 1980 with Dr. Ahmed Omshei, a former professor at Tehran University and a consultant to General Fakuri, the Iranian minister of defense. It was Omshei, according to Ben-Menashe, who met with Allen, McFarlane, and Silberman at the L'Enfant Plaza as an unofficial representative of the Iranian government. Ben-Menashe claims that there was not one meeting but two, and that he was present at one of them. Lavi, he said, was involved in making the arrangements and was briefed on the discussions, but he did not actually participate in the meetings. Ben-Menashe agrees that the meetings did not result in any action related to the hostages, but he believes the offer was considered seriously by others in the campaign, at least for several days, before it was rejected.

As Sick goes on to detail, Hushang Lavi later approached officials from the independent third-party candidacy of John Anderson with an identical offer. And this offer was immediately reported to officials at the Carter administration, which was of course the proper and correct course for any patriotic American. Not so the Reaganites, as Sick explains:
Whoever the man was who met the Americans at the L'Enfant Plaza, and regardless of the nature of his offer -- whether an arms-for-hostages swap or simply a misguided attempt to intervene in the U.S. election -- it should have been reported to the administration. Here was a man who claimed to be in contact with representatives of Khomeini and who was offering to arrange a prompt release of the hostages. The very fact that such an offer was being made while negotiations were under way with Tehran was relevant to the negotiations. Perhaps this offer was a hoax. Perhaps he had his own political agenda. Perhaps his scheme had only a two percent change of success. No matter.

The correct response to such an offer is not to declare, "We have only one President at a time," as Silberman and Allen have claimed repeatedly, and then to walk away. The correct response is, "I'm sorry but you have come to the wrong address. Let me direct you to the proper authorities." …

Silberman, years later, argued that "such a report could have been leaked during the campaign" to embarrass the Reagan-Bush campaign in a "reverse twist." That argument may accurately reflect the suspicious state of mind that existed within the Reagan-Bush campaign. At a minimum, it suggests that short-term tactical political advantage outweighed the possibility, however slight, that the man actually may have had useful contacts with the Khomeini regime, as he claimed.

And as Sick explains in detail, it was clear that the Carter administration would not in fact have done as Silberman suspected -- because it had the ability to do just that with the Anderson campaign, and did not do so.

This incident, however, was only one of the early episodes in Silberman's career as an ethics-deprived Republican fixer. The next significant appearance of this role occurred in 1989, when Silberman and fellow Federalist Society member David Sentelle combined to overturn the Iran-Contra perjury conviction of Oliver North.

The prosecutor in that case, Lawrence Walsh, described their behavior thus in his book Firewall: The Iran-Contra Conspiracy and Cover-Up:
"A powerful band of Republican appointees waited like the strategic reserves of an embattled army. The final evaluation of the immunity Congress had granted Oliver North and John Poindexter would be the work of yet another political force -- a force cloaked in the black robes of those dedicated to defining and preserving the rule of law. Although the judiciary is theoretically a neutral arm of government and judges are expected to eschew partisan politics, the underlying political nature of all government institutions was evident when a three-judge panel from the United States Court of Appeals for the District of Columbia Circuit reviewed Oliver North's conviction in 1990."

This ruling was a real travesty, since it expanded the rights of defendants regarding limited-immunity grants such as North received to almost preposterous levels. Moreover, as Martin McLaughlin points out:
Silberman and Sentelle required the Independent Counsel to prove that neither the prosecutors nor any of the witnesses had been affected by the testimony given by North and Poindexter during weeks of nationally televised congressional hearings. This impossible requirement--essentially the proof of a negative--was the basis for dismissing the convictions of the two military officers who directed the illegal arms trafficking operation.

The North ruling was an important precedent in exactly the ways suggested by Walsh: it marked a turning in the conservative judiciary from merely adhering to conservative principles in its rulings to becoming, in effect, a lawless cabal that was willing to ignore basic principles of jurisprudence and equity in the law for the sake of obtaining a specific desired result, that is, one benefiting Republicans and members of the "conservative movement."

That tendency spread to other parts of the judiciary as well, but continued to be a regular theme in Silberman's rulings:

-- His ruling that the independent-counsel law was unconstitutional, rendered on behalf of another Federalist Society cohort, Ted Olson (the ruling was later overturned 8-1 by the Supreme Court).

-- His ruling blocking the Clinton legal team from discovering the source of media leaks that were emanating from the offices of special prosecutor Kenneth Starr, another Federalist Society cohort whose appointment Silberman had connived behind the scenes to accomplish.

-- His ruling subsequent ruling denying the Secret Service from being shielded in testifying in the Monica Lewinsky matter, declaring that in trying to shield the agents. President Clinton had "declared war on the United States."

-- Even his most recent ruling as a member of the Foreign Intelligence Surveillance Court of Review, which overturned a lower court's ruling that found the Justice Department's use of wiretaps under the Patriot Act was unconstitutionally overbroad. As the ACLU trenchantly observed: "As of today, the Attorney General can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans' homes and offices." It is also well worth noting that none other than Ted Olson argued the administration's side in this case. One can only imagine, of course, what the court would have ruled had this initiative occurred under a Clinton or Gore administration -- but it is not hard to guess.

David Brock's book Blinded by the Right: The Conscience of an Ex-Conservative gives us an especially close-up view of Silberman's extraordinary partisanship, because Brock became quite close to both Silberman and his wife, Ricky, who was one of the cofounders of the conservative (and Richard Mellon Scaife-financed) Independent Women's Forum.

Indeed, it becomes clear that Silberman played a central role in the campaign of dirty tricks dreamed up by the "conservative movement" against Clinton during his tenure, notably Brock's "Troopergate" story -- the now-admittedly phony tale that Arkansas state troopers enabled Clinton in a series of extramarital assignations. Moreover, both Silbermans, Ricky in particular, heavily influenced Brock's reportage in writing the book-length smear of Clarence Thomas' chief critic, The Real Anita Hill. But the judge himself, who became a "father figure" to Brock, was the real player. As Brock describes in Blinded by the Right (pp. 95-96):
If Republican aides were eager to abet my saving Hill, so were Thomas's closest friends. Among others, they included fellow D.C. Circuit Court Judge Laurence Silberman .... These people who knew Thomas best in the world, now my sources and soon-to-be friends of mine, told me nothing had happened between Thomas and Hill. No asking for dates. No dirty talk. No porn. Nothing. They conveyed a very convincing impression that they knew in their bones that Hill's story was a monstrous lie. And they were still in wild-eyed fury about it. Silberman speculated that Hill was a lesbian, "acting out." Besides, Silberman confided, Thomas would have never asked Hill for a date: Did I know she had bad breath?

Silberman also played a role in Brock's smearing of Democrats related to the Anita Hill charges against Thomas. As he later describes (pp. 112-113):
During the hearing there was a hue and cry from the right that someone hostile to Thomas had tipped the press off to Hill's confidential charges, which led to Hill's public testimony. In one section of the book [The Real Anita Hill], I was publicizing leaked charges, and in another I sought to identify the Democratic leaker who could be blamed for the entire mess and would forever be tarred by the right as a devil figure. I worked very hard to come up with a villain: Democratic Senator Paul Simon of Illinois. I accused Simon of illegally leaking Hill's confidential Judiciary Committee affidavit to the press, a conclusion for which I had no sources. I merely made a deduction from the record, not nearly the kind of evidence one needed to lodge a charge against a senator that, if true, warranted an Ethics Committee investigation. In his autobiography, published in 1999, Simon took issue with much of what I wrote about him. He told the story of meeting Judge Patricia Wald of the D.C. Circuit, a liberal whom I claimed was "close" to Simon and portrayed as a conspirator in the campaign against Thomas. After my book was published, Wald was scheduled to testify before one of Simon's subcommittees. Before she began speaking, Wald walked up to Simon and said, "Since we are close, I thought I should introduce myself." The two had never met. ...

Of course, it had been none other than Judge Silberman who gave me the false information on his colleague Pat Wald, whom he hated with a passion. Shortly after I dropped off the chapter titled "Trial By Leak" late one evening at the Silbermans' Georgetown home, stuffing it through the mail slot in their door like a surprise gift, my telephone rang in Woodley Park. Ricky and Larry were literally squealing with joy about the case I had constructed implicating Simon, a vocal critic of Silberman's during the judge's own confirmation hearing. They were passing the phone to each, marveling at my "genius" at the top of their lungs. "You got him. You nailed him. You fucked him. You killed him," they sang. …

Silberman played a significant role in Brock's publication of the phony "Troopergate" smear, about which even he had grave reservations before publishing it. But Silberman convinced him to go ahead (p. 146):
Though he was a sitting federal judge who would rule on matters to which the Clinton administration was a party, Larry strongly urged me to go forward [with "Troopergate"]. .... The trooper story would be much bigger than the Anita Hill book, he predicted. Clinton would be "devastated," and therefore the story could only enhance my reputation. ... [T]he judge told me he felt sure that if the same story had been written about Ronald Reagan, it would have toppled him from office. Clinton, he surmised, might be toppled as well ...

And finally, it's also worth noting that Ricky Silberman, according to Brock, was the person who had persuaded Kenneth Starr to become involved in the Paula Jones case even before he was named Independent Counsel. According to Brock (p. 187):
With Scaife's backing, Ricky was ready to put her fledgling group [the Independent Women's Forum] at the service of the anti-Clinton jihad, and as one of its first moves, she wanted IWF to file a friend of the court brief in the Paula Jones case, supporting Jones' contention that her case should go forward even while Clinton was president. And Ricky had a particular lawyer in mind to draft the brief: Kenneth Starr.

Of course, the Silbermans' cynicism was especially in view, since they held a rather dim view of Starr as easily manipulable, even though he was one of their fellow stalwarts in the Federalist Society and one of the conservative movement "in crowd." As Brock puts it (p. 188):
Favorably described by Georgetown doyenne Sally Quinn in the Washington Post as a member in good standing of the Washington establishment, Starr was the ideal front man for the job Ricky had in mind. Larry Silbereman, who had served with Starr on the D.C. Circuit Court, agreed. In conversations with me, Silberman … told me that he and other members of the right-wing legal establishment regarded Starr as a weak, unprincipled opportunist who was more interested in advancing his own ambitions than in conservative ideology. He was also considered na├»ve and politically clumsy. Starr's concern for burnishing his reputation and his desire to ascend to the Supreme Court, Larry said, made him susceptible to pressure from the liberal political establishment and the liberal Washington press corps. Of course, if Larry's view was correct, Starr was also susceptible to pressure from his patrons in the conservative movement, who mistrusted him and could make or break his career. …

And of course, the latter was precisely the factor that became predominant in Starr's ham-handed and ultimately destructive attempts to have Clinton impeached over the Lewinsky affair.

Silberman's cynical view of his fellow conservative jurists is also described by Brock at another juncture -- namely, the decision by his cohort David Sentelle to replace Robert Fiske as Clinton's special prosecutor with none other than Starr. According to Brock, Sentelle was actually doing Silberman's bidding (p. 192):
In conversations about Sentelle, who sat with Silberman on the circuit court, Larry suggested to me that he sometimes deployed Sentelle, whom Larry said he considered to be dim bulb, as a stalking horse for his own machinations. Sentelle had provided Silberman with a crucial second vote in the overturning of the Iran-Contra conviction of Oliver North by a vote of two to one. The unsigned opinion was issued per curiam, or by the court, which obscured Silberman's fingerprints.

One of Brock's first observations in Blinded by the Right about Silberman described his cynical manipulation of the law for partisan purposes (pp. 96-97):
A consummate Washington insider for more than two decades, Larry would often preface his advice to me with the wry demurrer that judges shouldn't get involved in politics -- "That would be improper," he'd say -- then forge ahead anyway. He was a behind-the-scenes adviser to the conservative editors of the Wall Street Journal editorial page, and he delighted conservative audiences with his acid critiques of the liberal press. …

Brock discussed Silberman at length in an interview by Buzzflash after the release of Blinded by the Right:
BUZZFLASH: Now let's talk about another aspect of involvement in the judiciary. You were very involved with the Judge Clarence Thomas nomination hearings in terms of your writing for the right-wing. You also seemed quite involved with the Silbermans. It was still astonishing to see the extent that a sitting federal judge was interacting with the efforts to attack Clinton -- Judge Lawrence Silberman and his wife that is. Silberman gave you advice on proceeding with articles that attacked Anita Hill and the President.

DAVID BROCK: Judge Lawrence Silberman, who sits on the D.C. Circuit Court of Appeals, was an appointee of President Reagan to that court. His wife Ricky was the vice-chairman of the Equal Employment Opportunity Commission during the period that Clarence Thomas was the chairman on the Commission. I met them originally as sources for my first book on the Clarence Thomas-Anita Hill hearings. They went beyond the role of source.

BUZZFLASH: And he was a sitting judge at the time?

DAVID BROCK: Yes he was a sitting judge. For example, they reviewed in draft the galleys of that book. And so it certainly went beyond a reporter-source relationship. And coming out of that, Judge Silberman became a mentor to me and was someone who I relied on, as well as Ricky, for political advice while I was at the American Spectator pursuing a lot of the anti-Clinton stories. When Ricky Silberman left the Equal Employment Opportunity Commission, she founded, or was one of the co-founders, of the Independent Women's Forum -- it was actually her idea. And it was actually Ricky Silberman's idea to approach Ken Starr to file that friend-of-the-court brief in the Paula Jones case. And Ricky knew the Jones case was simply payback for the Anita Hill affair. She thought, wouldn't it be delicious that Clinton would now be accused of sexual improprieties in the same way that Clarence Thomas had been? Judge Silberman played an absolutely key role at a critical juncture.

I write in the book that I had misgivings about publishing the Troopergate article, even back at the time I was working on it. I had some concerns about -- both about the credibility of the troopers and also had some concerns about setting the precedent of vetting a sitting President's private life. Because again, Troopergate, you know, did not have anything to do at that time with sexual harassment. It was simply tales of alleged extramarital affairs, not even currently, but back when Clinton was governor of Arkansas. And so I was concerned about the journalistic precedent of that, and the political impact, and the impact on my own career if I went ahead with that story. And so I did seek advice from a handful of people, and Judge Silberman's advice was to publish the article. And I think it's fair to say, had he advised me not to, I very well might not have. That's how seriously I took his advice.

BUZZFLASH: Well, you say on page 146 of your book, in reference to that, "though, he was a sitting federal judge who would rule on matters to which the Clinton administration was a party. Larry strongly urged me to go forward."

DAVID BROCK: By the way, his court sits right below the Supreme Court. And so there are a lot of cases that come before the court dealing with the Executive Branch -- regulatory matters, things of that nature. When various assertions of executive privilege were being made by the White House during the impeachment, he sat in on at least one, if not more, of those cases.

BUZZFLASH: And Silberman did not recuse himself.

DAVID BROCK: No, he did not recuse himself, even though, as I said, he had been directly involved. I think it's clear that the kind of activity that Silberman was engaging in is not permitted. It falls into a category of the kind of partisan politics that's not permitted. And he was aware of this, because he would jokingly say to me that, when I would go to him for advice, he often started out saying something like well, it would be improper to advise you on this. And it was set sort of tongue-in-cheek, and then he would go ahead and advise me. So he was aware of what he was doing.

Aside from me, he was also very influential with the Wall Street Journal editorial page in terms of advice. And of course, the Journal editorial page was, along with the Spectator, probably the second principal anti-Clinton vehicle during that time.

Of course, Brock himself was virulently smeared for Blinded by the Right as a liar -- though no one, including Judge Silberman, ever contested what he wrote as false, nor ever presented evidence of it.

The portrait of Silberman that emerges from all these records is fairly clear: His appointment to head up the investigation of the "intelligence failures" in the invasion of Iraq is itself a supreme bit of extraordinary cynicism at work in the national body politic. The "Whitewash Commission" is not by any means a stretch. This panel simply will not be permitted to criticize any action of the Bush administration -- and is most likely, if anything, to blame President Clinton for any failures in the intelligence-gathering apparatus that brought this country to invade another nation under false pretenses.

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