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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

I am a little surprised that the White House's new insistence on a joint private meeting with President Bush and Vice President Cheney hasn't elicited more notice.

In its Wednesday editorial the Times writes ...

Yesterday, Mr. Bush's lawyer told the commission that Ms. Rice would testify. And after months of unacceptable delay, the lawyer said Mr. Bush and Vice President Dick Cheney would also talk to the entire commission in private, not under oath. But the panel had to pay a price: it agreed, at the administration's insistence, that after Ms. Rice testifies, it will not call her back or ask any other White House official to testify in public.


So the Times doesn't even mention the jointness issue or any problems it could raise.

Now, amidst all the stonewalling and foot-dragging and character assassination I guess this matter won't <$Ad$>get top-billing. But just what is behind this demand -- to which the Commission has apparently agreed?

All the other arguments adduced for ducking the Commission investigators have had at least some conceivable constitutional basis, however weak: testimony in private, testimony not under oath, privilege for White House aides, etc.

(One might note that there will be no recording kept of this meeting -- just one sore-wristed Commission staffer allowed to take written notes of what is said by the ten Commission members, the president and vice president.)

In any case, clearly there cannot be any matter of constitutional precedent or principle involved in needing the president and vice president speak to the Commission together.

So, again, what's the deal?

Only three scenarios or explanations make sense to me.

The first -- and most generous -- explanation is that this is simply another way to further dilute the Commission's ability to ask questions.

If, say, the meeting lasts three hours, that's three hours to ask questions of both of them rather than three hours to ask questions of each -- as might be the case in separate meetings.

That wouldn't be any great coup for the White House. But it would be one more impediment to throw in front of the Commission's work, which would probably be a source of some joy for the White House.

From here the possible explanations go down hill -- in every respect -- pretty quickly.

Explanation number two would be that this is a fairly elementary -- and, one imagines, pretty effective -- way to keep the two of them from giving contradictory answers to the Commission's questions. It helps them keep their stories straight.

(It's a basic part of any criminal investigation -- which, of course, this isn't -- to interview everyone separately, precisely so that people can't jigger their stories into consistency on the fly.)

The third explanation is that the White House does not trust the president to be alone with the Commission members for any great length of time without getting himself into trouble, either by contradicting what his staff says, or getting some key point wrong, or letting some key fact slip. And Cheney's there to make sure nothing goes wrong.

These last two possibilities do, I grant you, paint the president and his White House in a rather dark light. But I would be curious if anyone can come up with another explanation for this odd demand.

I've long thought that political observers were greatly overstating the challenge Tom Daschle faced this November from Republican John Thune.

My reasoning: Thune couldn't beat a substantially weaker candidate, incumbent Sen. Tim Johnson, in the Republican annus mirabilis of 2002. So how exactly is he going to beat the far stronger Tom Daschle in what is shaping up to be a much better Democratic year?

This might change that, though.

Tim Giago, a Native American journalist who publishes something called the Lakota Journal has announced that he plans to enter the senate race as an Independent. South Dakota Democrats rely on and generally get overwhelming support from the state's Native American community. So this could certainly mix things up.

I still think Daschle takes this race pretty comfortably. But this bears watching.

What if Condi Rice, when she testifies, makes statements in flat contradiction of earlier statements by Richard Clarke? Nothing, it would seem, since the Commission appears to have agreed not to "request additional public testimony from any White House official, including Dr. Rice." That would seem to rule out testimony (at least public testimony) from various aides who might be in a position to say which of the two is being truthful, should such a contradiction arise.

And then there's this, also from Al Gonzales' letter to the Commission ...

I would also like to take this occasion to offer an accommodation on another issue on which we have not yet reached an agreement - commission access to the president and vice president. I am authorized to advise you that the president and vice president have agreed to one joint private session with all 10 commissioners, with one commission staff member present to take notes of the session.


Is that an 'accommodation'?

Why is this is <$Ad$>a joint session? Why can't the president and the vice-president meet with the Commission members separately? Is there some, as yet unexplored, constitutional issue of the president and vice-president needing to appear jointly?

I hesitate to assay some jesting constitutional theory (the two jointly elected constitutional office-holders must appear jointly because they were elected jointly?) for fear that it might end up in Gonzales' next letter.

One can speculate about several reasons -- one in particular -- for making this stipulation. And, in addition to having no conceivable constitutional basis, none of them are flattering.

This from Reuters<$NoAd$> ...

The White House said on Tuesday that the 9-11 commission agreed to terms that would allow national security adviser Condoleezza Rice to give sworn public testimony on the Sept. 11 attacks, and President Bush and Vice President Cheney to meet in private with the full panel.

White House spokesman Scott McClellan told reporters the commission had agreed to state in writing that neither appearance would set a precedent under the constitutional separation of executive and legislative powers.


Isn't this more face-saving than precedent-blocking? To the extent that this precedent issue is even a real issue, what consequence does something in writing from the commission possibly have? Setting aside the logical problems with viewing this as a separation of powers issue (namely the fact that the commission is not an arm of congress) jurists decide what's a precedent, not some slip of paper a cornered White House extracts from people it appointed.

Tuesday's Washington Post runs an editorial recommending that the White House allow Condi Rice to testify publicly before the 9/11 Commission.

But the members of the editorial board can only just barely bring themselves to say it. Their desire to give the president (and the underlying policy at issue here) every possible benefit of the doubt wars visibly with their recognition that Rice's continued refusal is no longer tenable.

In that vein ...

Richard A. Clarke's book criticizing the administration, while stimulating an important public debate, brings this concern [keeping advice of presidential aides confidential] into sharp relief. If career national security officials write tell-all accounts while the presidents they serve not only remain in office but are facing reelection, decision-making is bound to suffer. Presidents are more likely to surround themselves with political loyalists, depriving themselves of diverse ideas and valuable experience. Staff members are more likely to censor themselves for fear of later exposure.


In other words, we're only in this terrible mess of having to cross this woeful threshold because this showboater Clarke wrote <$Ad$>this book. Friggin' backstabber!

Toward the issue of substance underlying all of this the editorial displays an odd indifference. And the authors are at pains to proclaim their belief that there are no questions Rice would have any difficulty answering or confronting -- a classic case of premature exculpation.

Says the Post: "[W]e see no reason to credit Democratic insinuations that Ms. Rice has something to hide, given that she spent four hours answering the commission's questions in closed session and has offered to answer more."

As for the danger of presidents surrounding themselves "with political loyalists, depriving themselves of diverse ideas and valuable experience", that horse has sort of already left the barn, hasn't it? Or has no one been paying attention?

It's been clear for some time that one of the key shortcomings of this administration is the presence of so many loyalists and ideologues who can usually be counted on to shout "Onward! Onward! Onward!" as the ship of state sails off the edge of the world.

More prosaically one might start with this Knight Ridder article from Sunday, the first sentence of which reads: "Accounts from insiders in the Bush White House describe a tightly controlled, top-down organization that pushes a predetermined agenda, shuns dissenting views and discourages open debate."

What's notable about this is that many of the premises of the Post editorial are belied by excellent reporting which has appeared in their own pages in recent days.

I confess that I don't read newspaper editorials (as opposed to signed columns and opeds) that closely or frequently. But if this and other recent examples I've seen are any indictation, the disconnect between the Post's editorials and the factual information being generated on their own news pages seems to be approaching Wall Street Journal-like proportions.

Declassifying the transcripts is not compatible with national security. But taking the transcripts, cutting the individual words into scraps and pasting them back together into incriminating sentences might be okay.

How far different is this ...

U.S. officials told NBC News that the full record of Clarke’s testimony two years ago would not be declassified. They said that at the request of the White House, however, the CIA was going through the transcript to see what could be declassified, with an eye toward pointing out contradictions.


That's the last graf from a late story from NBC.

You know something's wrong -- when an <$Ad$>administration is truly out of control -- when they discuss their dirty tricks on background.

Look at what this is: using the CIA and the classification process for an explicitly and exclusively partisan purpose, at the direct behest of the White House. Call me old-fashioned but back in the good-old-days this used to be done with a bit more indirection, subterfuge and cover, no?

It's one thing to declassify the whole thing. Perhaps there's some rationale for that -- though why Clarke's testimony and no one else's should be released seems questionable.

But the whole thing won't be released -- which would be the only way to really judge what he said -- only portions which can be selected to highlight apparent contradictions.

We're moving on to dangerous enough ground when the White House starts using the nation's intelligence agencies for explicitly domestic political purposes. But you know we're really in trouble when they don't even try to hide it.

See what your dollars have bought ...

With only three months to go before L. Paul Bremer trades in his Iraqi pro-consul baton for beachwear and a hard-earned vacation, the country's most controversial politician is already well positioned to become prime minister.

Ahmad Chalabi, the Pentagon's heartthrob and the State Department's and CIA's heartbreak, has taken the lead in a yearlong political marathon. Temporary constitutional arrangements are structured to give the future prime minister more power than the president. The role of the president will be limited because his decisions will have to be ratified by two deputy presidents, or vice presidents. Key ministries, such as Defense and Interior, will be taking orders from the prime minister.

Chalabi holds the ultimate weapons -- several dozen tons of documents and individual files seized by his Iraqi National Congress from Saddam Hussein's secret security apparatus. Coupled with his position as head of the de-Baathification commission, Chalabi, barely a year since he returned to his homeland after 45 years of exile, has emerged as the power behind a vacant throne. He also appears to have impressive amounts of cash at his disposal and a say in which companies get the nod for some of the $18.4 billion earmarked for reconstruction. One company executive who asked that both his and the company's name be withheld said, "The commission was steep even by Middle Eastern standards."

Chalabi is still on the Defense Intelligence Agency's budget for a secret stipend of $340,000 a month. The $40 million the INC has received since 1994 from the U.S. government also covered the expenses of Iraqi military defectors' stories about weapons of mass destruction and the Iraqi regime's links with al-Qaida, which provided President Bush with a casus belli for the war on Iraq.


(That's from <$Ad$>this piece in UPI.)

It's not quite so clear to me that Chalabi is really in line to be prime minister. (Our presumed desire not to have the place blow up in our face any sooner than necessary would seem to militate against that option.) But it's certainly nice to know that we've equipped him with enough patronage opportunities and ammunition for blackmail to give him a running start, isn't it?

Think about it. We invaded Iraq. We occupy Iraq. Why exactly was Chalabi's INC -- itself a creation of the US government, though later a bamboozler of the same -- allowed to seize the files of the Iraqi secret police? Obviously, this is really more of a rhetorical than an actual question. But we know from post-Communist Eastern Europe -- and actually countless other sorrowful examples -- that the possession of secret police archives in a formerly authoritarian or totalitarian state is an invitation to abuse, corruption, blackmail and all manner of bad acts, if not entrusted to the surest, most ethical and responsible of hands. Needless to say, those aren't adjectives that leap from the lips when talking about this guy.

With all the multiple and mushrooming investigations of Chalabi and possible wrongdoing he may have committed, rather than continue to give him taxpayer dollars, perhaps we might better spend our time considering how to take him into custody while we're still the sovereign authority in Iraq and have it within our power.

From a reader ...

I can't help wondering who at the White House reviewed Clark's book and cleared it for publication? And where will they be working next week? They sure don't act like they saw this one coming. Maybe the warning never made it "up the chain". I guess it wouldn't be the first time that happened, eh?


This missive not only made me cough up some of the soda I was drinking this morning, it's also on the mark and raises a puzzling question. <$Ad$>The White House was in no position to prevent the publication of this book. But they were in a position to read it well in advance of its publication.

Playing by the strictest of rules, of course, what the NSC bureaucrats see for classification purposes shouldn't end up in the hands of the politicals either at NSC or the White House political office. But from the first months of the administration we've seen that those proprieties aren't given a lot of attention. In any case, right out of the gate the White House seemed to have good chapter and verse talking points prepared, challenging Clarke and points raised in his book. So I think we can dispense with any notion that they hadn't given his book a pretty close read.

And that again raises the question: why has the response been so contradictory and feeble? Why, as the reader puts it, have they acted as though they didn't see this coming?

Partly, I think the answer is the same as I gave in a column I wrote for The Hill a few weeks ago: "We’re looking at a White House that is increasingly insular and isolated. Most specifically, its missteps show how deeply out of touch it is with how much its public credibility has atrophied over the last eight months."

The White House can be a very isolated and isolating environment -- especially on the downward side of the mountain. And I think this is a large part of what we're seeing. Many of the challenges they've faced over the last two or three months are ones they might easily have weathered as recently as eight or nine months ago. And they keep reacting as though they have little grasp of how much the ground has moved beneath their feet during those intervening months.

One other point. We certainly don't know yet. But I think the early signs are that this perjury attack on Clarke was a major, major blunder. I don't think the perpetrators of this ugly stunt even thought they'd ever get into a courtroom. That wasn't the point: this was watercooler ammo. Something you get on to the news so that when Mr. X asks Mr. Y over the watercooler what he makes of Clarke's testimony, Mr. Y responds, "Hell, that guy? He's probably gonna get indicted for perjury. You can't believe anything that guy says."

Still, Clarke -- who was unflappable on the shows this morning -- and Hill Democrats seem to have immediately called Frist & Co.'s bluff. Not only have they welcomed the release of Clarke's materials, they've called for the release of more documents, correspondence and testimony from him and Rice. Selective declassification would be very difficult in the current context -- and could complicate efforts to keep so much other stuff out of the public's view.

This was a very high stakes bluff, not least because it looked like the worst sort of Nixonian tactic, using the coercive machinery of the state to bludgeon political opponents. But if they were going to play hardball at this level, they should have been certain they had him dead to rights. And it seems like they didn't. Now even a number of partisan Republicans I know feel like this looked ugly and wrong. To use the Napoleonic aphorism again: this was worse than a crime. It was a mistake.

When you walk into a crowded room, walk up to a man, put a gun to his head and pull the trigger, make sure the gun's loaded. If not, you have the worst of all worlds -- like the White House.

Department of threading it awfully fine.

From tonight's 60 Minutes interview ...

ED BRADLEY: The secretary of state, defense, the director of the CIA, have all testified in public under oath before the commission. If - if you can talk to us and other news programs, why can't you talk to the commission in public and under oath?

CONDOLEEZZA RICE: Nothing would be better, from my point of view, than to be able to testify. I would really like to do that. But there is an important principle here ... it is a longstanding principle that sitting national security advisers do not testify before the Congress.

ED BRADLEY: But there are some people who look at this and say, "But this - this was an unprecedented event. Nothing like this ever happened to this country before. And this is an occasion where you can put that executive privilege aside. It's a big enough issue to talk in public."

CONDOLEEZZA RICE: It is an unprecedented event. We've said that many, many times. But this commission is rightly not concentrating on what happened on the day of September 11.. So, this is not a matter of what happened on that day, as extraordinary as it is - as it was. This is a matter of policy. And we have yet to find an example of a national security advisor, sitting national security advisor, who has - been willing to testify on matters of policy.


To call this explanation tortured is to give human rights abusers a bad name.

Look again at these last two sentences of Rice's <$Ad$>flagrantly bogus argument: "This is a matter of policy. And we have yet to find an example of a national security advisor, sitting national security advisor, who has - been willing to testify on matters of policy."

Each word of these two sentences was chosen to fit an unhelpful set of facts.

Sandy Berger twice testified in 1990s -- once in 1994 on Haiti and then again in 1997 during the Asian campaign contribution hearings. In 1994 though Berger was Deputy National Security Advisor. Constitutionally, it's not at all clear to me why a Deputy National Security Advisor should be more obliged to testify before congress than his boss. But that's their out in this case.

Then in 1997, when he was NSC Director, he was testifying in the course of an investigation into a scandal -- but certainly one with policy implications, since I'm pretty sure what they were asking him about was whether money affected policy. Why this is a constitutionally significant distinction is lost on me too. But again, that's their out -- it wasn't about 'policy'.

National Security Advisor Zbigniew Brzezinski testified before congress in 1980. But again, that was in the context of an investigation -- into an accusation that Billy Carter, the then-president's brother, had tried to influence the US government on behalf of Libya.

But, again, that's not 'policy'. So apparently by Rice's standard, it doesn't count.

I think there's a growing realization in Washington this weekend that Rice is going to testify, whether she realizes it yet or not. Among several reasons why is the fact that her rationales for not testifying are just becoming more and more visibly bogus, drawing tortured distinctions of no clear constitutional import.

She might just as easily have argued that they have found no record of a National Security Advisor named Rice testifying before congress, or a female NSC Director testifying, or one who served under a Republican president. Each would have made about as much sense. And on top of this you have the fact that the separation of powers argument is questionable at best because the commission itself is not an arm of congress.

A deal (though perhaps a tacit one) between Kerry and Nader? This AP story is pretty vague. But something seems to be afoot.

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