About the Papers Libby Withheld from the SSCI, Part One

by emptywheel

Murray Waas has a very important story on the pieces of information Scooter Libby withheld from the SSCI.

Vice President Cheney and his chief of staff, I. Lewis "Scooter" Libby, overruling advice from some White House political staffers and lawyers, decided to withhold crucial documents from the Senate Intelligence Committee in 2004 when the panel was investigating the use of pre-war intelligence that erroneously concluded Saddam Hussein had weapons of mass destruction, according to Bush administration and congressional sources.

Cheney and Libby withheld precisely the things that would show how much they were pushing crappy intelligence on Iraq. But notice Waas doesn't say anywhere this was illegal. Nor, I'm fairly certain, does Waas' story describe the full extent of the documents that were withheld. In this post, I'll explain why withholding the documents probably wasn't illegal. I hope to do a follow-up that explains some of the other things BushCo didn't turn over.

To explain why withholding evidence in this case probably wasn't illegal, we need to go back to late October and early November 2003. Up until that point, The SSCI inquiry had consisted primarily of interviews. Even with what they learned in interviews, the Senate was not happy about what it was learning about pre-war intelligence.

THE COMMITTEE staff was surprised by the amount of circumstantial evidence and single-source or disputed information used to write key intelligence documents — in particular the Oct. 2002 National Intelligence Estimate —summarizing Iraq’s capabilities and intentions, according to Republican and Democratic sources.

Two things held up finalizing of the inquiry. First, Democrats began to call for further investigation to expand the inquiry--into the politicization of intelligence associated with taking us to war. But Roberts, he wasn't having it.

Roberts described the report as “95 percent done.” But others on the committee, including Rockefeller, want to broaden the inquiry. They insist the report is in the preliminary stage and will not be finished until the end of the year, or later.

Meanwhile, the SSCI started going after the documents they had requested several months earlier. First, then went after Tenet.

In a sharply worded letter, the top two senators with the Senate Select Committee on Intelligence called on CIA Director George J. Tenet to supply long-sought materials and schedule interviews by noon Friday and to be ready to appear before the panel "at a time determined by the committee."

[snip]

Last Friday, responding to a Washington Post story that indicated the committee was preparing a report about weaknesses in prewar intelligence, Tenet offered to have senior officers involved in producing the October 2002 National Intelligence Estimate of Iraq's weapons of mass destruction appear before the senators to present what a senior administration official described as a "comprehensive explanation as to how [the intelligence community] reached their conclusions."

Then, they went after the White House.

Sen. Pat Roberts (R-Kan.) said Sunday that President Bush's aides had pledged to provide "every document" they have been denying the Senate Select Committee on Intelligence,

Sounds like Roberts has those SAOs bowed down in terror, huh? Until you finish the sentence, that is.

but the White House replied with a noncommittal statement.

Or read further.

"I have talked with very top White -- or almost the top, you know, White House official, and he has promised that," Roberts said. "Every document we want will be made available."

That would be a remarkable concession by the White House, which has long resisted yielding internal records to Capitol Hill, even about matters less sensitive than war planning. The White House later issued a statement after Roberts's appearance that stopped far short of the commitment he described.

[snip]

"While the committee's jurisdiction does not cover the White House, we want to be helpful," the statement continued. "We will continue to talk to and work with the committee in a spirit of cooperation."

Should have been a tip off, shouldn't it have? You see the WH was refusing to turn these over because they insisted the SSCI didn't have jurisdiction over the White House. It's the same kind of jurisdictional issue that--Harriet Miers says--convinced her to withdraw her nomination this morning. So you might have figured they weren't really serious when they said they would turn over the documents.

And then, all hell broke loose.

On November 5, a few days after the White House had seemingly agreed to this document release, in a scenario that reeked of Manuel Miranda's theft of strategy memos from the Judiciary Committee servers (although I have no evidence a similar theft occurred), a Democratic strategy memo was leaked to Sean Hannity. The memo talked about how to respond to and expand on the contents of the soon-to-be-released report.

The memo that set off yesterday's events was written by a committee Democratic staff aide and laid out for Rockefeller possible steps that could be taken by Democrats to press their approach. It also proposed publicizing any limitations the Republican majority put on the inquiry and exposing what it termed "the senior administration officials who made the case for a unilateral, preemptive war."

And here's what happened when the Republicans "discovered" the memo:

The simmering debate about how far the inquiry should go burst into light with the circulation by Republicans late Tuesday of a draft memorandum written by a member of the committee's Democratic staff.

[snip]

Senator Pat Roberts of Kansas, the panel's Republican chairman, accused Democrats of trying ''to discredit the committee's work and undermine its conclusions, no matter what those conclusions may be.'' But Senator John D. Rockefeller IV of West Virginia, the panel's Democratic vice-chairman, accused Senator Roberts of blocking his efforts to mount a complete review of how the public was given what now appears to have been an inaccurate picture of Iraq's alleged illicit weapons stockpiles and ties to terrorism.

''The majority has left the Senate minority with two choices.'' Senator Rockefeller said on the Senate floor. ''Either abandon what we believe is a fundamental obligation of this body to the American people or reluctantly part ways and use our rights as a minority to get that job done on our own.''

There was a huge outcry, as conservative activists (including JimmyJeff GannonGuckert) everywhere reacted in seeming lockstep with cries of disgust that the Democrats would politicize this intelligence. (You may know throw up in your mouth, if you wish.)

And then, using the memo as an excuse, Fristie brings the whole investigation to a halt.

Angry about a leaked Democratic memo, the Republican leadership of the Senate yesterday took the unusual step of canceling all business of the committee investigating prewar intelligence on Iraq.

Majority Leader Bill Frist (R-Tenn.) called on the author of the memo -- which laid out a possible Democratic strategy to extend the investigation to include the White House and executive branch -- to "identify himself or herself . . . disavow this partisan attack in its entirety" and deliver "a personal apology" to Sen. Pat Roberts (R-Kan.), chairman of the Select Committee on Intelligence.

Only if those steps are taken, Frist said, "will it be possible for the committee to resume its work in an effective and bipartisan manner -- a manner deserving of the confidence of other members of the Senate and the executive branch."

Roberts followed Frist on the floor and said that unless the Democratic members "properly" address the issue, "I am afraid that it will be impossible to return to 'business as usual' in the committee."

This is the background to Roberts' shifting the interesting part of the inquiry--the part we're all interested in--until after the election. As Josh Marshall said contemporaneously, the whole memo-schtick was a way for BushCo to get out of fighting over something that they really couldn't win on.

We all knowhow this works.

Two guys walk into a ring for a fight. One knows he’s about to get creamed. But he can’t bear the shame and humiliation of walking away from a fight. So at the very last moment he whips out some phony claim that the other guy’s cheating.

He puffs himself up with forced indignation.  And huffily storms off. 

Everybody knows it was bogus --- the accused, the accuser, everyone else. But it gives the coward just enough of an angle, just enough of a smokescreen to get out of the place without having a glove laid on him and with a bit of his dignity intact.

This is of course more or less exactly what the Republicans are doing with the hullabaloo over this unsent Democratic staff memo.

[snip]

As I said in this earlier post, the Republicans are trying to use this memo ridiculousness to shut down any scrutiny of the intelligence related bad-acts in the lead-up to the war. 

And they’re already starting.  According to Newsmax, Newt Gingrich said yesterday that the president should refuse to cooperate with the committee altogether. 

“I don't see how the White House can cooperate with an intelligence committee which has this level of partisanship,” he told Sean Hannity on Thursday.

See where they’re going with this?

See where they got with this?

Anyway, I've never ever seen an adequate description of the agreement that ended this big to-do. It simmered, I think, until the following year (I wonder how the INR memo leaking and the Ashcroft recusal played into this?). What I do know is that by February 2004 (David Kay had said the intelligence was all wrong in the interim, and more details about how wrong it was, had come out), the committee was finally ready to expand the inquiry.

The Senate Select Committee on Intelligence voted last night to expand its investigation into the prewar intelligence on Iraq by probing whether President Bush and other top administration officials exaggerated intelligence information to make a case for war, a move Republicans on the panel had resisted for months.

The decision "illustrates the commitment of all members to a thorough review, to learning the necessary lessons from our experience with Iraq, and to ensuring that our armed forces and policymakers benefit from the best and most reliable intelligence that can be collected," Sen. Pat Roberts (R-Kan.), chairman of the committee, said in a statement.

Sen. John D. Rockefeller IV (D-W.Va.), the vice chairman, said in the statement that the "agreement reflects a difficult and lengthy process, but in the end, we were able to reach consensus on the need to expand the investigation into several key areas." He was referring to the closed-door struggle between Republicans, who sought to keep the focus of the panel's inquiry on the CIA and other intelligence agencies, and Democrats, who wanted to add a thorough probe into administration actions leading up to the war.

[snip]

Yesterday's vote does not authorize the committee to use its subpoena power to probe whether Bush and his top officials relied on other, as yet undisclosed, intelligence when they made statements about Iraq's weapons -- a line of inquiry that Democrats had sought.

"It's progress, but there's no reason why we shouldn't have a full inquiry," said Sen. Carl M. Levin (D-Mich.).

The point is, though, when the Democrats came close to forcing the issue in November 2003, the White House pulled a perfectly executed ratfuck campaign to prevent it. Ratfuck succeeded. And as a result, the Democrats went from legitimately asking for things like speech drafts to having to rely on the good will--if you can call it that--of Pat Roberts to get things. And Pat Roberts? Let's just say he was willing to call the plays for the home team.

And that's the tricky thing. Because if Pat Roberts agreed to certain limitations on the SSCI's ability to get documents, then withholding those documents is perfectly legal. Sure, Fitzgerald might want to add another count or two of obstruction to Libby's already impressive docket sheet. But so long as Pat Roberts willingly agreed the White House could withhold that information, then I think this is only a legal issue insofar as Fitzgerald can argue that Libby did it (in February 2004, after Fitz was already on the case) in order to hide his guilt from Fitzgerald.

Update 10/28:
Via Murray Waas, Senator Rockefeller has used the publication of Waas' article to renew his call for all those things that--as I've portrayed above--the White House wouldn't give up in October 2003. From Rockefeller's statement:

 

"In February 2003 the White House provided input to the CIA during the preparation of Secretary Powell's United Nations speech. During the Senate Intelligence Committee investigation into prewar intelligence on Iraq, I believed it was important for the committee to obtain and review the White House drafts.
 
"On October 31, 2003, I wrote to CIA Director George Tenet requesting this and other White House documents. I repeated that request in writing on two subsequent occasions.
 
"Despite these and other efforts, the Committee never received the White House documents.

 

Comments

[emptywheel]

Egads. What typepad hell this post was.

There was much more good stuff that got lost in the re-boot. Trust me.

In any case, I think this story is showing up as part of the big pre-emptive anti-smear campaign led by Wilkerson, McLaughlin, and Scowcroft. They didn't leave things to chance, these guys. They know Rove's/Cheney's MO and they're prepared for it.

[eriposte]

Link working now...

BTW, the SSCI left numerous telltale signs just in the uranium section showing that the WH tried to cook the intelligence books. The wording was careful but the meanings were obvious. For example, the Powell speech incident is covered too (see #1.4 in link below):
http://www.theleftcoaster.com/archives/004975.php

[emptywheel]

Yup.

And the SOTU, and about three other places.

Waas' article is important. But not a surprise at all. I think he's got Wilkerson, McLaughlin, a number of Democrats from the SSCI, and one Republican as sources for his article. The fact that Libby (and Hadley, I'm sure) withheld documents has no doubt been common knowledge for quite some time. This article only serves to shift the focus on Libby from a Plame-only focus to an Iraq-wide.

[emptywheel]

Haleluyah eRiposte!

I thought you were supposed to read the SSCI to debunk what it said and I was supposed to read it for what it didn't say.

Me, I'm thrilled that we can talk about what it didn't say now.

That, and the damn Niger forgeries. Always the damn Niger forgeries.

[Donna]

It's Friday morning, and this story is not being carried by ANY of the "MSM." What gives?

[John Forde]

The reason this is not in the mainstream media is that it is too far outside of what psychologists call, "latitude of acceptance". It's inconceivable to them that Dear Leader could have knowingly used forgeries to start the war.

But that lattitude has been reduced by more than half. For me, it was the way the judges reacted to the eight redacted pages. I thought, "Oh my god. Not only is it plausible - it's true."

Humor plays a vital role getting the formerly implausible not only into the realm of possibilty, but to 'top of mind'. Franken's new book, "The Truth, With Jokes" is a great example. Almost no one in America thinks people in this affair will be executed. Franken raised the topic on Letterman earlier this week. Now, it's plausible. AND IT'S REAL!

[emptywheel]

Donna

I think the Waas story was intended to open another front on the attack on Bush to counter what will certainly be some major nastiness today.

The Senate is beginning to rumble over Part II of the SSCI investigation. By publicizing Roberts' role in spiking this investigation, they will begin to make it difficult for Roberts to continue to do so. They're using the publicity surrounding the Libby indictment to focus attention on WHY Senate oversight failed. Hopefully, in an effort to make the Senate do its job this time around.

And FWIW, I think it's significant that Wilkerson and McLaughlin were featured at the bottom of the Waas article. Look for them to be the talking heads running Joe Wilson's counter-attack campaign.

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