Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Maybe Richard Clarke lied in the July 2002 testimony. Maybe he's an al Qaida mole. Maybe instead of being 98% water like the rest of us he's 98% wax. Maybe. Maybe. Maybe ...

Earlier this afternoon I wrote a lengthy post (a few too many typos in the first iteration, for which I apologize, but I thought time was of the essence) on the shameless and I suspect (for himself) eventually quite damaging speech Sen. Majority Leader Bill Frist gave on the Senate floor this afternoon, accusing Dick Clarke of being a perjuror and a profiteer on the blood of 9/11.

Though I didn't see it, I read it. And it's a truly egregious text. To have read it on the Senate floor is the sort of act that will, I think, permanently change how I see him. In any case, see the post below for more details and we'll be discussing it more later. But look at this short passage in a story tonight on MSNBC ...

“Mr. Clarke has told two entirely different stories under oath,” Frist said in a speech from the Senate floor, alleging that Clarke said in 2002 that the Bush administration actively sought to address the threat posed by al-Qaida before the attacks.

Frist later retreated from directly accusing Clarke of perjury, telling reporters that he personally had no knowledge that there were any discrepancies between Clarke’s two appearances. But he said, “Until you have him under oath both times, you don’t know.”

That's astonishing.

I never cease to be amazed at these guys' ability to outpace my ability to impute bad faith to them.

A few hours after accusing Clarke of perjury, he admits that he has no idea -- not just no idea whether he perjured himself, which is a fairly technical question, but no idea whether there were any inconsistencies at all.

He was just running it up the flag pole. Maybe, maybe, maybe ...

As long as we're talking about it, let me share with you some highlights from Frist's speech ...

I am equally troubled that someone would sell a book, trading on their former service as a government insider with access to our nation’s most valuable intelligence, in order to profit from the suffering that this nation endured on September 11, 2001.


Mr. President, I do not know if Mr. Clarke’s motive for theses charges is partisan gain, personal profit, self promotion, or animus because of his failure to win a promotion in the Bush Administration. But the one thing that his motive could not possibly be is to bring clarity to the issue of how we avoid future September 11 attacks.


Third, Mr. Clarke has told two entirely different stories under oath. In July 2002, in front of the Congressional Joint Inquiry on the September 11 attacks, Mr. Clarke testified under oath that the Administration actively sought to address the threat posed by al Qaeda during its first seven months in office.

Mr. President, it is one thing for Mr. Clarke to dissemble in front of the media. But if he lied under oath to the United States Congress it is a far more serious matter. As I mentioned, the intelligence committee is seeking to have Mr. Clarke’s previous testimony declassified so as to permit an examination of Mr. Clarke's two different accounts. Loyalty to any Administration will be no defense if it is found that he has lied before Congress.


In his appearance before the 9-11 Commission, Mr. Clarke’s theatrical apology on behalf of the nation was not his right, his privilege or his responsibility. In my view it was not an act of humility, but an act of supreme arrogance and manipulation. Mr Clarke can and will answer for his own conduct – but that is all.

Regardless of Mr. Clarke’s motive or what he says or implies in his new book, the fact remains that this terrible attack was not caused by the United States Government. No Administration was responsible for the attack. Our nation did not invite the attack.

Amazing stuff.

And speaking of amazing stuff, note this ...

If you recall last Sunday night's 60 Minutes, in which Clark first made his claims, Deputy National Security Advisor Steve Hadley essentially accused Clarke of lying about an alleged encounter between Clarke and President Bush just after 9/11. In this encounter, the president supposedly pressed Clarke to investigate Saddam's possible ties to the attacks.

Hadley was quickly tripped up by the fact that CBS had two sources who confirmed that the encounter had occurred, including one who was in fact present during the discussion.

The White House has kept calling Clarke a liar until today. From CBS this evening ...

Retracted White House statements do little to boost public trust. CBS News Correspondent Jim Stewart reports, until today, the Bush administration denied a meeting had taken place between the president and Clarke, during which Bush allegedly instructed Clarke to investigate Saddam Hussein and Iraq after Sept. 11.

The White House today reversed that comment, and staff members now tell reporters, "We are not denying such a meeting took place. It probably did."

So they called him a liar. But it seems they either had no evidence or their evidence turned out to be wrong.

Now, consider this. Do you think the White House would have changed its tune if CBS didn't come up with another source?

And how about this?

My recollection is that this meeting was supposed to have been an impromptu encounter in the West Wing -- not something like an Oval Office meeting for which there would almost certainly be some sort of record. I also seem to recall that Clarke said this encounter included him and other unnamed persons.

If that's true, and the White House didn't know the identities of the other people (the unnamed persons), who else would have been able to deny that the encounter occurred except the president himself?

Others could confirm it, yes. But if Clarke and Bush were the only identified participants in the alleged encounter, and if the encounter didn't actually happen, who else but Bush himself would be able to say it didn't happen? One of the two or three other people in on this conversation which, in fact, never occurred?

Think about it.

Late Update: Several readers have noted that in Clarke's book, his description of this meeting does reference the names of two persons involved. But those may well have been the two sources who confirmed the account to CBS. If either had denied it, I have to imagine the White House would have gotten them on camera or in front of a notary public real quick. So, the question remains, what was the basis of the White House's denial that this incident occurred, if not a denial from the president?

Last night I heard through the grapevine that House Intelligence Committee Chairman Porter Goss was going to ask the Justice Department to bring perjury charges against Richard Clarke.

(As it happens, I've heard at least two other thermonuclear options they were considering using against him -- this just seems to be the one they decided on.)

I told my friend that I thought the White House would be awfully foolish to let that sort of prosecution get underway since the discovery requests from Clarke's attorneys could prove rather uncomfortable for the White House.

But now it seems we know what the story is. According to several news reports out early this afternoon, Congressional Republicans are seeking to declassify testimony Clarke provided on the hill in July 2002. The implication of comments from Sen. Majority Leader Bill Frist is that that testimony and this week's don't match and that Clarke must have perjured himself in one of the two instances.

Note that the testimony is from July 2002. That's one month before the backgrounder released by Fox News, which Republican Commission members challenged him with when he testified before them.

They've already argued that these two statements are in bold contradiction. So I think it's a pretty good assumption that the July 2002 testimony is substantially the same, if perhaps more detailed, as that backgrounder in question.

The idea here is to find another version of the same purported contradiction in which both statements are under oath -- thus getting the perjury cudgel out of the tool box.

Now, with respect to that backgrounder, Clarke has said that he was following orders to tell the truth, but with a spin, and did so. And it's worth noting that if that were a crime this White House would be emptied out pretty quickly. But let's set that aside for the moment.

Back up for a moment and look at what's happening here.

What this is about isn't Condi Rice or Richard Clarke or even George W. Bush. It's about what happened -- finding out what happened.

One side wants to find out; the other doesn't. This whole story turns on that simple fact. Why else try to destroy Clark unless what he has to say is profoundly damaging? Liars are usually easily discredited; it's the truth-tellers who need to be destroyed.

This administration has used and continues to use literally unprecedented means to maintain secrecy in order to keep this information -- what happened -- bottled up in the White House and in other parts of the executive branch.

We don't know what Condi Rice did because the documents haven't been released; nor have the minutes of meetings. Nor will she testify in public or even privately under oath.

We don't know what most of the key players did -- or at least we don't know with certainty -- because the locks on the information are being held that tight (the entirety of John Dean's new book Worse than Watergate is excellent in detailing this).

Yet Clarke's new enemies now want to use the fact that they control the Justice Department and the process of declassification to knock him out because he is, to all appearances, trying to bust open that very vault of secrecy.

In other words, precisely the tools these folks refuse to use in the interests of keeping everything secret they are more happy to use to crush someone who is opposing them.

As you know, House Speaker Denny Hastert, who opposed a 9/11 commission, opposed its funding, and opposed its deadline extension, now -- in a line, destined straight for the Daily Show --- says "We need to lean forward in making as much information available to the public as possible, without compromising the national security interests of the nation."

This is Plame all over again, just with the lights on -- a kind of behavior -- a mix of pervasive secrecy and the use of state power to punish political enemies -- that is literally a danger to the republic.

Now, let's consider three different possibilities about what's happening here.

The first possibility is that Clarke is just a straight-up perjurer, that this week he not only perjured himself but slandered the president and misinformed the public.

The second is that it's a scenario like I noted above -- this is the same case as the FOX backgrounder; and the Republicans found a copy under oath to try to use the machinery of the Justice Department to silence him.

The third is that this is just a bluff -- they want to imply there's a contradiction, but they won't actually declassify and release the documents, thus having it both ways.

I strongly suspect it's a mix of two and three.

But why guess? Let's find out. Release all his testimony. All of it.

I think Bob Graham -- former Chairman of the Select Committee on Intelligence and Co-Chair of the Joint Committee in question -- had it just right in what he said today ...

I concur with Senator Frist's call for de-classification of Richard Clarke's testimony to the Joint Inquiry. To the best of my recollection, there is nothing inconsistent or contradictory in that testimony and what Mr. Clarke has said this week.

I would add three other recommendations:

First, if Mr. Clarke's testimony is to be released, it should be released in its entirety -- not, as the Bush administration has done in the past, selectively edited so that only portions favorable to the White House are made public. Second, the Bush administration should de-classify other documents that surround the Clarke testimony, such as his January 25, 2002, plan for action against al Qaeda, in order to clarify the issues that are in dispute. And finally, the Bush administration should release all other testimony and documents related to 9-11 for which classification can no longer be justified -- including the 27 pages of the Joint Inquiry's final report that address the involvement of a foreign government in supporting some of the 19 hijackers while they lived among us and finalized their evil plot. The American people deserve to know what their government has done -- and should be doing -- to protect them from terrorists, and who should be held accountable for shortcomings that have left our country vulnerable."

Compare that with one vintage moment from Frist's performance ...

I do not know if Mr. Clarke’s motive for these charges is partisan gain, personal profit, self promotion, or animus because of his failure to win a promotion in the Bush Administration. But the one thing that his motive could not possibly be is to bring clarity to the issue of how we avoid future September 11 attacks.

Speaking only for my part -- though I suspect for others as well -- I have no stake in Richard Clarke. I think he's a hero because I'm quite confident (on the basis of very strong evidence) that he's telling the truth and now facing the whirlwind that we all knew these folks would bring against him.

(Bear in mind that top White House aides have told the press that the president personally initiated and is directing this campaign against Clarke. Not outside rabble-rousers, not nefarious aides operating on their own account, but the president himself. This is all his doing, according to his own staffers.)

If it turns out that what he said this week was really a bunch of lies, then he's no hero at all. And he really should be prosecuted. For just that reason I'm happy to let all the information come out, just as Graham says. This isn't an indifference to Clark's fate, but rather respect for him -- sufficient belief that the truth is his friend to want the whole truth to come out.

If it ends up that he told the truth this week but perjured himself two years ago, I'd be disappointed, and he may have to face an indictment, but he'd still be a hero for telling the truth now. The fact that the Bush White House got him to lie for them then hardly puts them in a good light.

In any case, any legitimate legal jeopardy (as opposed to some bogus charge) Clarke may face is really only a matter of concern for him, his family and friends, and the Republicans who are trying to shut him up.

If you're just interested in having the facts come out, then it's really not a great source of concern. For the public, the fact that Clarke might have lied once and told the truth once isn't really point. All that matters here is what the truth actually is, and that it comes out. And the White House is doing us the favor of showing that that is not a goal they share.

Wah, wah, wah.

from the Associated Press ...

Republicans have accused Democratic U.S. House candidate Stephanie Herseth of maintaining a secret Web page to receive campaign donations raised from ads on liberal groups' Internet sites.

But a Herseth campaign official scoffed at the charge, saying the Web page is not secret and can be found easily with a standard search of the Internet.

The truth and they think it's hell ...

How low will they go? Now Clarke's a <$NoAd$>racist (from last night's Crossfire ...

ROBERT NOVAK: Congressman, do you believe, you're a sophisticated guy, do you believe watching these hearings that Dick Clarke has a problem with this African-American woman Condoleezza Rice?

RAHM EMANUEL: Say that again?

ROBERT NOVAK: Do you believe that Dick Clarke has a problem with this African-American woman Condoleezza Rice?

RAHM EMANUEL: No, no. Bob, give me a break. No. No.

And then from Ann Coulter ...

Isn't that just like a liberal? The chair-warmer describes Bush as a cowboy and Rumsfeld as his gunslinger -- but the black chick is a dummy. Maybe even as dumb as Clarence Thomas. Perhaps someday liberals could map out the relative intelligence of various black government officials for us.

The abuse this White House has suffered from career civil servants ...

More dirty scoundrels who won't give Condi Rice and the <$NoAd$>president their due ...

[Outgoing Deputy National Security Advisor Lieutenant General Donald L. Kerrick], who stayed through the first four months of the Bush administration, said, "candidly speaking, I didn't detect" a strong focus on terrorism. "That's not being derogatory. It's just a fact. I didn't detect any activity but what Dick Clarke and the CSG [the Counterterrorism Strategy Group he chaired] were doing." General Hugh Shelton, whose term as chairman of the Joint Chiefs of Staff began under Clinton and ended under Bush, concurred. In his view, the Bush administration moved terrorism "farther to the back burner."

America Unbound, p. 76
Ivo Daalder & James Lindsay

Who knew how far the Clarke cabal stretched?

Last night MSNBC is reported that, according to a senior White House official, Richard Clarke's testimony on the 9/11 "terrorist attacks was considered so damaging that national security adviser Condoleezza Rice planned to ask the panel for a private interview to answer his allegations."

Again, the request is for a private interview. But if you read down into the piece it seems the hang-up may be that Rice or the White House don't want the testimony to be under oath.

The article says that "panel has consistently required anyone rebutting sworn testimony to be similarly under oath." Since Rice is now under fire and the Commission has more leverage, they may hold the line.

Now, what's going on here exactly?

Every White House tries to keep what we might call a penumbra of protection around White House aides. I noted yesterday that two of Rice's predecessors, Brzezinski in 1980 and Berger in 1997, have submitted to testify. But clearly it doesn't happen often.

Yet, having said that, it is very hard for me to grasp the constitutional issue implicated in Rice's taking an oath to tell the truth when she speaks to the Commission.

A constitutional issue involved in a presidential aide speaking to a fact-finding commission? Not a determinative one, I think. But yes, an issue.

Whether the testimony is public? Maybe.

But whether or not the testimony is sworn? I don't get that. This seems especially the case when she wants to appear specifically to rebut other sworn testimony. How can you claim the need to preserve the confidentiality of the president's communications with his top aides, then break that confidence to refute someone's criticism, and then say you won't make the charges under oath?

As far as I can see this is not compelled testimony. So presumably Rice can simply decline to answer questions she thinks tread too closely on her confidential advice to the president, right? Certainly there could be some invocation of executive privilege?

Obviously, not having the testimony sworn gives her ... well, more leeway.

But I'm not sure what the grounds there are to justify it -- especially as she is now eager to speak with the Commission again to challenge Richard Clarke, who, as we know, had to make all his claims under oath. Once again, she wants to lacerate her opponents, but never on a ground that makes for even close to a fair fight.

Watch out! A shoe just dropped!

The Times just posted a story for tomorrow's paper about Condi Rice's efforts at damage control on the Richard Clarke matter.

Here are the first three grafs ...

The White House may have sent a phalanx of top officials to Capitol Hill this week to be grilled by the Sept. 11 panel, but the one official who did not appear publicly has turned out to be the official the panel wanted most: Condoleezza Rice.

As she prepares to leave her job at the end of the year, Ms. Rice, the president's national security adviser, now finds herself at the center of a political storm, furiously defending both the White House and her own reputation.

But her effort to blunt the criticism by spending the week on television and in news media briefings may have had the opposite effect. She has infuriated some members of the panel, who wonder why she has time for CNN but not for them. On Thursday they questioned again whether she should be subpoenaed to testify if she does not appear in public to answer questions about the Bush administration's handling of Al Qaeda before the attacks on Sept. 11, 2001.

Wait. Let's back up<$Ad$> a second.

As she prepares to leave her job?

Am I like totally out of the loop on what's happening in this town? Or have we not heard before that Condi Rice has decided to resign as National Security Advisor at the end of President Bush's first term?

Are the authors of this piece just trying to signal the possibility that the president could lose the election and thus her tenure as National Security Advisor would end? If that's it, the phrasing certainly leaves some room for confusion.

I guess it's possible that this is a reference to Rice's hopes to succeed Colin Powell since Powell, according to many press reports, has signalled he won't stay for a second Bush term.

But to the best of my knowledge this is the first time we've heard this about Rice -- certainly in so declarative and unambiguous a fashion.

Even with Powell, the statements are usually couched in some fuzzifying language since he's issued a few non-denial denials when asked if it's true that he's leaving. This, on the other hand, seems crystal clear.

It seems odd to me that we'd have such a prominent placement of a clause so clearly signalling Rice's departure, especially at a moment when she's more embattled than she's been since she came into office.

Late Update: Laura Rozen notes that on January 7th in the Times, Bumiller said Rice "insists [2004] will be her last year of service in the White House."

It's worth glancing at this whole article in which the Times' Elizabeth Bumiller provides an account of Condi Rice's explanation of the apparent contradicition between Dick Cheney's claim that Clarke "wasn't in the loop" on pre-9/11 terrorism planning and Rice's claim that Clarke "was in every meeting that was held on terrorism."

In this case Cheney's story is matter and Rice's is anti-matter. So perhaps that explains why things have gotten kind of explosive over the last couple days.

Anyone who has ever been young -- which, I suppose, includes everyone -- remembers some shameless whippersnapper who had an older brother, or older sister, or some other sort of protector. And from under the wing or shadow of that protector they'd hurl all manner of taunts and insults and boasts at all the other little kids, confident that none of them could fight back or do anything about it.

Which brings us to Condoleeza Rice.

Here's Richard Clarke, at the center of the storm, up there on Capitol Hill getting grilled over his story. And from the peanut gallery, there's Condi Rice, heading over to the microphones at the White House every chance she gets to attack Clarke when no one can ask her any serious follow ups.

A couple hours after Clarke testified Rice headed over to the mikes and called his charges "scurrilous."

"This story has so many twists and turns, he needs to get his story straight," she said.

Rice truly has the best of all worlds. She hangs back at the White House shooting spit balls at Clarke and the rest of them. But she doesn't have to back anything up because she doesn't have to testify under oath or get questioned.

Needless to say, Rice rather undermines her arguments about the constitutional importance of maintaining the privacy of her advice to the president since she's sharing all sorts of information on the Post op-ed page and more or less every TV show in the universe.

When she went down to the White House press room to make the statements above, she also read from a previously classifed email Clarke had written to her just after 9/11. Needless to say, it was declassifed so she could try to use it to damage Clarke. Or to put it another way, it was declassified for narrowly political purposes -- taking advantage of the fact that the NSC, which Rice runs, is in charge of that process of declassification.

Evidently there are very few classes of confidential information Rice is not willing to publicize. She just doesn't want to get questioned.

Now, perhaps you'll say, following the White House line, that she'd love to testify but a constitutional principle is at stake and she has, as she puts it, a "responsibility to maintain what is a longstanding separation -- constitutional separation between the executive and the legislative branch."

Now, there is a constitutional issue involved. But Rice is trying to get people to think that members of the White House staff never testify. And that's not even close to true. In my hand I have a 2002 Congressional Research Service study that lists a whole slew of presidential aides and advisors who've testified in the past.

Indeed, it lists two of Rice's predecessors as National Security Advisor who've given public testimony: Zbigniew Brzezinski in 1980 and Sandy Berger in 1997.

Interestingly, the CRS study lists five examples of cases where presidential aides refused to testify. It's not clear whether this list is supposed to be exhaustive. And in most cases presidential aides are simply not even asked to testify at all, for reasons of comity between the branches if nothing else. But of the five listed four are from the Nixon administration. And each of those were before the Watergate investigation really got under way. A whole slew of Nixon aides had to head up to the Hill in 1974 after things started to go south for them -- so perhaps we haven't heard the final word on this matter.

In any case, there's a high bar for testimony from a National Security Advisor. But it's happened before. And more than once. If they wanted her to testify, she could testify. What they want is for her to be able to lacerate her critics, discuss whichever parts of her advice to the president would be helpful to her politically at the moment, and freely declassify documents which she or the White House believes will hurt her enemies.

She's a veritable information geyser, a one-woman-FOIA. She just won't answer questions under oath.