Congressional Record: February 11, 2004 (Senate)
Page S974-S978                  

        Independent Commission to Investigate Iraq Intelligence

  Mr. REID. Mr. President, I was relieved that the President decided he 
was going to appoint an independent panel to review what took place in 
our going to Iraq, but after he made the decision to do that and 
appointed the panel, it was obvious it was just a hoax. This panel is 
laughable--if it were not so serious. All one needs to do to understand 
how this panel is not serious is to look at who is the cochair of this 
panel. One of the most partisan people in all America is a man by the 
name of Judge Silberman. Judge Silberman is a person who proudly wears 
the label of a partisan, even though he hides it as often as he can 
from the public.
  As I said, I was glad President Bush realized we needed a commission 
to investigate what went wrong, although I would have preferred that 
Congress appoint members to ensure its independence. If this commission 
is going to do its job, it must be free of political influence. It must 
be above even the appearance of partisan bias. Throw those things out 
the window because there is not only the appearance of partisan bias, 
there is political and partisan bias because the cochair of this 
commission is a man by the name of Laurence Silberman.
  He is a long-time political operative in the far right of the 
Republican Party. He has served in a number of different capacities 
over the years. He has been involved in many partisan matters over the 
years. To show how well reasoned and thinking people feel about this 
man, I quote a professor of law at American University by the name of 
Herman Schwartz:

       He [Laurence Silberman] is fiercely partisan, pugnacious 
     and very political. He is an odd choice for a panel that is 
     supposed to be above suspicion on a matter that is very 
     important and potentially very partisan. Picking Silberman 
     verges on the brazen. It is a thumb in the eye to those who 
     were looking for a real investigation.

  That is who we have as cochair of this independent commission, a man 
who is politically partisan and the appointment is brazen. As I 
indicated, he is a long-time political operative, far right of the 
Republican Party. He served in many capacities. He was an aide in the 
Reagan-Bush campaign. One of his assignments then was to serve as 
liaison to the Islamic regime in Iran where Americans were being held 
hostage. There is some question as to whether a deal was made that the 
crisis would not end until after the election. One can read lots of 
information about that, but as soon as the election was over and the 
hostages were released, it is interesting to note that Laurence 
Silberman was appointed by the President to the Court of Appeals in 
Washington, DC.
  It speaks volumes to indicate that one of his early decisions came in 
the case of LTC Oliver North, a principal figure in the Iran-contra 
affair, which involved the release of Iranian hostages. There is the 
documentation of many meetings of Silberman with the people in the 
White House, including Colonel North, prior to this all taking place. 
Even though North and Admiral Poindexter were convicted of lying to 
Congress, their convictions were voided in 1990 by Judge Silberman.
  It is also interesting to note that another one of the appointees 
there on that court, who joined with Silberman in overruling the North 
and Poindexter

[[Page S975]]

convictions, Mr. Sentelle, who became a judge, was largely responsible 
for the 1994 decision to remove Whitewater prosecutor Robert Fiske and 
replace him with the more partisan Kenneth Starr as an independent 
investigator. We know that investigation cost $60 million or $80 
million and accomplished nothing.
  Silberman worked as an attorney in the Justice Department. He took 
the No. 2 job under President Ford when Rumsfeld and Cheney had top 
jobs in the White House of President Ford. I repeat, in the fall of 
1980 when Ronald Reagan was running to unseat President Carter--and 
this is from the L.A. Times, a direct quote:

       . . . Silberman and two other Reagan advisors met secretly 
     with a man who claimed to have ties to the government in 
     Iran, which is holding 52 American hostages. The brief 
     meeting later led to unproven allegations that Reagan's aides 
     sought to delay the release of the hostages until after the 
     November election.

  Well, it is interesting to note that he had not done enough, it 
appears. In 1987, when Reagan was under investigation by an independent 
counsel, Silberman did away with the Independent Counsel Act, saying it 
was unconstitutional. Of course that one was followed up on by the 
Supreme Court, which overwhelmingly reversed him just a month later. 
But Silberman had the last word. His opinion, joined by fellow Reagan 
appointee David Sentelle, voided North's conviction and also spared 
Reagan's National Security Adviser, John Poindexter.
  During the Clinton years, Silberman was one of President Clinton's 
most aggressive tormentors. In 1998, he was part of a Federal appellate 
panel that rejected the administration's claim of executive privilege 
to block the Secret Service from testifying about Clinton's 
relationship with former White House worker Monica Lewinsky. 
Silberman's opinion, to say the least, was very political. He ripped 
the Attorney General for acting in the personal interest of President 
Clinton and questioned whether the President, by allowing aides to 
criticize independent counsel Kenneth Starr, was ``declaring war on the 
United States.'' Not very judicious, I would think.
  There was a book that was a best seller called ``Blinded by the 
Right,'' written by David Brock. It is a very interesting book. It 
talks about how this young man, who was a student at one of the 
universities of California, decided to join with the far right, and he 
made it through even working for the Washington Times. In his book, he 
explains how that was an interesting experience and how unfair they 
were in almost everything they wrote. But David Brock, during his 
tenure as a spokesperson for the right, and writing all these very 
damaging, misleading articles and even books, said in the book, 
``Blinded by the Right,'' that his adviser, the person who directed him 
where to go, what to say, and even went through books and articles he 
had written to proofread them to see if he could be more hard-hitting 
than Brock was, this is the man who is going to be the cochairman of 
the independent commission. The term ``independent commission,'' used 
along with Laurence Silberman, is like many of the things in George 
Orwell's book, ``1984.'' Many of the things are just the opposite. 
Laurence Silberman cannot be independent. The commission cannot be 
independent as long as he is there.

  As Brock indicated, he wrote articles about President Clinton, an 
article on Travelgate, which was charges by Arkansas State Troopers 
about the former Governor Clinton and extramarital sex. Silberman was, 
and I quote, ``his faithful advisor.''
  ``The judge,'' according to the LA Times, Brock said, ``encouraged 
him to be aggressive, and even on one occasion, suggested a specific 
tip involving the President's sex life to pursue.''
  When David Brock, at the direction of many in the right wing, wrote 
critically about the late Senator Paul Simon, he sent an advance copy 
to Judge Silberman's home. Brock wrote that Silberman was ``ecstatic 
about the case he made against Simon. . . .''
  During this period of time, Brock said he was introduced to leading 
conservatives who met regularly in the judge's home even with him and 
his wife. They were friends and close companions of Vice President 
Cheney and his wife.
  Mr. President, people have a right to be as partisan as they choose 
but not if you are a judge. Judges not only have to do away with what 
is wrong, but with what appears to be wrong. Just with the little bit I 
set forth here, doesn't it seem wrong that this man, Laurence 
Silberman, is the cochairman of a bipartisan, independent commission 
when it has been acknowledged by most everyone that this is one of the 
most partisan people in our community? An American University law 
school professor says:

       He is fiercely partisan, pugnacious and very political. . . 
     . He is an odd choice for a panel that is supposed to be 
     above suspicion on a matter that is very important and 
     potentially very partisan. Picking Silberman verges on the 

  I agree with that, the ``brazen.'' Let's see if that means what I 
think it means, ``brazen.'' I have a little dictionary here. Let's see 
what it says.

       Brazen: Boldness.

  Yes, he is pretty bold.
  For the President to pick this man to be cochairman of this 
commission is, as Professor Schwartz says, ``brazen.'' I continue the 

       It's a thumb in the eye to those who were looking for a 
     real investigation.

  This is no real investigation. This is going to be Judge Silberman, 
in an aggressive way, making sure that nothing gets out of hand. He is 
there to protect the President, not to get fair information. He is 
there to protect him.
  Sitting judges are not supposed to do what Silberman does. But he has 
a lifetime appointment and the canons of judicial ethics mean nothing 
to him. He is bold, he is brazen in what he does. He does not hide his 
partisanship. But, in spite of that this administration, knowing 
everything there is to know about this man, selects him to be the 
cochair of this independent commission.

  Brock says, in his book: ``Larry''--that is Laurence Silberman--
``would often preface his remarks to me with the wry demurrer that 
judges shouldn't get involved in politics. `That would be improper,' 
he'd say--and then he'd go ahead . . .'' and give this information that 
was partisan and, even, according to Silberman, would be improper. But 
he would just go ahead and do it anyway.
  Most recently, to show his partisanship, after a lower court 
unanimously ruled that Attorney General John Ashcroft had exceeded his 
authority in assuming broad wiretap powers, Silberman was the judge 
involved in the decision that overturned it. By engaging in partisan 
activities while he was a sitting judge, Silberman has raised questions 
about his impartiality, and that is an understatement.
  So I hope we continue to talk about the need for an independent, 
bipartisan commission because as long as Laurence Silberman is attached 
to this commission, it will be tainted. This crucial investigation as 
to what went wrong with our intelligence operations cannot be tainted 
with any hint of bias or prejudice--and it is. It is not tainted, it is 
smeared with partisan prejudice because of this man.
  There is already a distrust of the intelligence gathering surrounding 
weapons of mass destruction. The Silberman appointment only makes 
matters worse.
  I call upon the President to replace Judge Silberman on this 
commission. There are many respected Republicans in public service who 
have demonstrated an ability to put their ideological and partisan 
views aside when it comes to what affects our Nation. Silberman cannot 
meet that. This is such an issue and demands such a person. Laurence 
Silberman is not such a person.
  To show how skeptical the country is about our intelligence-gathering 
operations, even Bill O'Reilly--even Bill O'Reilly, reports Reuters 

       Conservative television news anchor Bill O'Reilly said on 
     Tuesday he was now skeptical about the Bush administration 
     and apologized to viewers for supporting prewar claims that 
     Iraq had weapons of mass destruction.
       The anchor of his own show on Fox News said--

  This is Bill O'Reilly--

     he was sorry he gave the U.S. government the benefit of the 
     doubt that former Iraqi leader Saddam Hussein's weapons 
     program posed an imminent threat, the main reason cited for 
     going to war.

  Appearing on TV, O'Reilly said:

       I was wrong. I am not pleased about it at all, and I think 
     all Americans should be concerned about this.

[[Page S976]]

  We have a committee, a commission appointed by the President, in the 
guise of being independent, in the guise of being bipartisan. It simply 
is not true. As long as Laurence Silberman has anything to do with 
this, it cannot be a fair, independent, bipartisan commission.
  The scope of this so-called independent commission was determined by 
the President through Executive order. There was no discussion with the 
legislative branch of Government; it was just a fiat. Despite the fact 
that numerous questions have been raised about the actions or 
statements of both the intelligence and communications community in the 
days before the war, the President's Executive order specifically rules 
out an examination of the administration's actions.
  Can you believe that? Instead, his Executive order makes clear the 
only issues the commission can address are related to the performance 
of the intelligence community, precisely the same issues, in many 
cases, that the Republican-controlled intelligence committees in the 
House and Senate are already exploring. Unfortunately, this will not be 
a real commission that can answer the main question we believe needs to 
be addressed; namely, the administration's role in all of this.
  On top of all this, they have appointed Laurence Silberman to 
cochair. This is a gross mistake. I can't imagine how the President and 
his people think he can get away with this.
  Mr. DORGAN. Mr. President, I wonder if the Senator from Nevada will 
yield? I wonder if he would yield for a question?
  Mr. REID. I am happy to yield to my friend. He and I have had 
discussions. I would just preface it for this----
  The PRESIDING OFFICER. The Senator from North Dakota is not 
recognized. The Senator from Nevada yields for a question.
  Mr. REID. I would say through the Chair, the Senator and I have 
discussed this on many occasions off the Senate floor.
  Both agree that this issue has to be talked about publicly.
  This is a disgrace to a determined, independent, bipartisan 
commission. It is just wrong.
  I would be happy to yield to my friend from North Dakota for a 
  Mr. DORGAN. Mr. President, I have visited the Senator from Nevada and 
others following the announcement of the cochairs of this commission.
  First of all, I believe there should be an independent commission. I 
believe very strongly that the question of intelligence--both the 
gathering of and use of intelligence--is critically important to this 
country because it, and only it, will provide protection for this 
country against the next terrorist attacks. We have to get it right.
  When Mr. Kay comes before a committee and says it was all wrong, it 
was wrong and it failed the President--it also failed the Congress and 
the American people--we had better figure out what happened, what was 
wrong. There needs to be a commission. But it needs to be an 
independent commission.
  Now what we have is the President announcing a commission to 
investigate the intelligence. But more than that, the point the Senator 
from Nevada just made about the cochair, Mr. Laurence Silberman, a 
judge--I read this book from a while ago, ``Blinded By the Right.'' I 
was aware when I read this book by David Brock of Mr. Silberman's 
activities in other venues as well.
  I must tell you that having read this book and seen that a sitting 
Federal judge was involved in the sort of things Mr. Brock says he was 
involved in with respect to a series of things that it seems to me 
would go well beyond what would be acceptable activities by a Federal 
judge, I think it is just Byzantine that the President would appoint a 
cochair to this commission who doesn't meet the test of objectivity or 
the test of common sense at all. There can be nothing independent about 
a commission that is cochaired by a sitting Federal judge whose 
discussions and activities in this book disclose that there is nothing 
at all impartial about this judge.
  I will not read into the Record these passages. I assume perhaps the 
Senator from Nevada has. I know many of my colleagues are talking about 
the same thing.
  I ask the Senator from Nevada: Can there be a presumption of 
impartiality by a cochair of this commission, appointed by the 
President to investigate this issue of the executive branch--by the 
way, without subpoena power or anything of the sort--when the President 
has chosen a very strident, aggressive, partisan supporter as the 
  Mr. REID. Mr. President, I do not understand how the President and 
the people around him could do this. Do what? Have a commission with an 
outline that is very weak and won't contribute very much to find out 
what our intelligence community did or did not do. But maybe he could 
get by with it a little better by not having a person who has been 
proven to be one of the most partisan people in all of America as 
cochair of this commission. Here is a man who is violating the canons 
of judicial ethics and responsibilities that judges have. Yet he is on 
this commission as cochair. I have trouble articulating how 
irresponsible and unfair and brazen this is.
  Mr. DORGAN. Mr. President, again, inquiring further of the Senator 
from Nevada, aside from the fact that this is not an independent 
commission, it is not what is needed to be done at this point to 
evaluate and investigate the ``failures'' Mr. Kay described in our 
intelligence. This so-called commission cannot possibly be a commission 
held in much respect if the selection as the cochair is a fierce 
partisan whose exploits are described at least in part in this book.

  Incidentally, I think the question should rest with the judicial 
system, Why has this not been investigated? I know of no investigation 
in the judicial system with respect to what is alleged with respect to 
the activity of Mr. Silberman.
  This country needs an impartial, independent, aggressive 
investigation of what happened with respect to our intelligence.
  As I indicated, our safety and security depend on intelligence 
getting it right with respect to protecting us against the next 
terrorist attack. That is why this is so important.
  I personally plan to support and aggressively speak in favor of a 
truly independent commission. I am assuming one will be offered by 
perhaps Senator Corzine who has offered it on the floor of the Senate. 
We will have this debate at some point. We need a commission. It needs 
to be independent. It needs to be cochaired by people who do not have a 
partisan agenda. That is simply not the case with the independent 
commission that has been announced now by the President.
  I ask the Senator from Nevada: Is that not the case?
  Mr. REID. It is absolutely the case.
  I also ask the Senator from North Dakota, through the Chair, to 
respond to a statement by David Kay given to me yesterday. He said 
there should be an examination of how the intelligence was used by the 
administration--not simply the failings of the intelligence community.
  Will the Senator agree that David Kay is right, there should be an 
examination of how the intelligence was used by the administration--not 
simply the failings of the intelligence community?
  Mr. DORGAN. Mr. President, if I might respond, there is no question 
that any evaluation of this should be an evaluation of what kind of 
intelligence existed and how it was used. That is not an attempt to put 
any one person under a microscope; it is an attempt to evaluate what 
happened here. What on Earth happened?
  Again, I say there are some who want to say nothing happened. They 
want to allege nothing has happened. Clearly, something has happened.
  The top weapons inspector came back to this country and said our 
intelligence community has failed the President, and in fact the 
intelligence community failed, and we now believe that to be the case. 
The Secretary of State went to the United Nations and he said: We know, 
we know, we know, on point after point after point, slide after slide, 
intelligence pictures, satellite photos, we know this, we know this, we 
know this. It turns out we didn't know that.
  This is important business. This country needs to act on what we 
know--not what we think we know. If our intelligence community failed 

[[Page S977]]

as Mr. Kay indicates it did, and he says failed the President--I say 
failed all of us--then the question is, Why? How did that happen? How 
was intelligence gathered? Where did that failure exist? And how was 
that intelligence used? I believe only an independent commission will 
get to that answer. I think it is urgent that we get there.

  As you know, in England they are now having such an investigation, 
with an end date I believe of July. They understand the urgency. They 
are saying let us do it, and let us do it quickly but thoroughly.
  In this case, we have a so-called independent commission, cochaired 
by a strident partisan, and at the same time we are told it is fine to 
have that commission report sometime after next year. I just do not 
think that is the right thing.
  Mr. INHOFE. Mr. President, parliamentary inquiry.
  The PRESIDING OFFICER. Will the Senator yield for a parliamentary 
  Mr. REID. I am happy to yield for a parliamentary inquiry.
  Mr. INHOFE. Will the Senator yield for a question?
  Mr. REID. I have the floor. I will yield for a question.
  Mr. INHOFE. I think we are in a highly charged political season right 
now. Everyone is talking about this, and the subliminal picture that is 
trying to be painted here is that somehow this President may have not 
known something he should have known or knew something and he didn't 
act appropriately.
  Let us remember what David Kay said. He said, when he came in, we all 
thought there were weapons of mass destruction. We acted accordingly. 
And, quite frankly, I contend there were weapons of mass destruction. I 
asked him that question. I don't think either one of the two Senators 
in the Chamber--I am about to finish my question--were at that hearing.
  I asked him this question: I said, If in January, 13 months ago, they 
found 11 chemical rockets with a capacity of a warhead of 140 liters, 
and they had enough VX on hand to do that, and that one chemical rocket 
with 140 liters of VX could kill a million people, and subsequent to 
that, 3 months later, they found 36 more--that is 47 weapons of mass 
destruction that were found--I asked him: Aren't they truly weapons of 
mass destruction? He said: Well, yes, if they put the chemicals in the 
  The other thing people keep talking about, What did they know or what 
did they not know about a connection between Saddam Hussein and Osama 
bin Laden. That should have been put to rest about a month ago when 
there was a leak to the Weekly Standard. They specifically drew that 
connection and said, yes, in fact, there is a connection. In fact, two 
of the passports of the pilots were gotten by Saddam Hussein and his 
  Just this morning in the New York Times there is an article stating 
the connection is there. This is the New York Times, not a Republican 
operation. It says: ``Found, Smoking Gun.'' That is the name of this 
  We are enjoying this very much, but the political season is on us. I 
hope we will keep cool heads and do the best we can to improve our 
  Right after September 11 we had the bicameral commission look at 
this. We came a long way. I ask the assistant leader if that is not 
  The PRESIDING OFFICER. Before the Senator from Nevada responds, the 
Chair feels constrained to remind all Senators, Senators may yield for 
questions but not for speeches.
  The Senator from Nevada has the floor.
  Mr. REID. Mr. President, I know the Senator from Oklahoma says this 
is political season. We are in the Senate. Every day of our life is 
political season. That is what we do. That is what we do for the 
American people. That is what we do for the people of the State of 
Nevada, the people of Oklahoma, the people of North Dakota, and the 
people of Missouri.
  I agree with my friend's statement, there is no showing of weapons of 
mass destruction. True. The point is, this is serious business. This is 
not trying to determine what happened at half time at the Super Bowl. 
This is looking at the situation involving the security of this Nation 
and actually the security of this world. We should have an independent 
commission, bipartisan in nature. Everyone agrees with that.
  I personally do not like the parameters of what the President set 
forth. It does not establish what needs to be done. But the purpose of 
this discussion today with Senator Dorgan and this Senator from Nevada 
is the commission, as set up as an independent bipartisan commission, 
is tainted. As I indicated earlier, it is not only tainted, it is 
smeared. Why? Because the President chose as the cochair of this 
commission a man who is one of the most partisan zealots in the history 
of this country. So this commission can never render anything of 
substance that will be accepted in this country because of this man 
being the cochair. I suggest, get him off. If he had any care about 
this country, he would resign.
  The Senator from North Dakota hit the nail on the head: Where is our 
judicial system? There could be hearings and proof established, for 
example, that David Brock went into this man's home, time after time 
after time while he was sitting on important cases. What was Brock 
doing--getting advice as to how he could berate, denigrate, lie, cheat 
about the President of the United States?
  These are facts.
  Mr. DORGAN. Will the Senator yield?
  Mr. REID. I am happy to yield.
  Mr. DORGAN. Let me respond briefly to my friend from Oklahoma, and I 
will phrase it in the form of a question to the Senator from Nevada. 
There is no question the world is better off because Saddam Hussein was 
found in a rat hole and no longer runs the country of Iraq. The world 
would be better off if Kim Jong Il were not running the country of 
Korea. That is not the issue. An interesting point, but not the issue.

  The issue is, the top weapons inspector says that which we said we 
knew, which we told the world we knew, was not the case. Why? Because 
he said our intelligence system failed.
  No one here should sleep quite as soundly as they used to sleep, 
understanding that our intelligence system failed.
  We all ought to demand on an urgent basis to understand what happened 
and how it happened. That is the point the Senator from Nevada and I 
are making. I hope the Senator from Oklahoma believes in the urgency of 
this, as well.
  I ask the Senator from Nevada if it is not the case that the question 
by the Senator from Oklahoma about the September 11 commission moving 
in the right direction, is it not the case that yesterday we saw this 
headline: ``9/11 Panel Threatens to Issue Subpoenas for Bush's 
Briefings''? In fact, they have already had to issue subpoenas. This 
commission investigating the September 11 attacks had to issue 
subpoenas against the FAA and others and is now threatening to issues 
subpoenas against the White House and said this morning they had more 
  Is it not the case that any administration, Democrat or Republican, 
ought to say to this commission and any commission: Here are our 
records. They are open. We want you to get to the bottom of this.
  Mr. REID. I say through the floor to my friend from North Dakota, the 
Senator makes the point. The other body which is doing the 
investigation, no one raises any question about the Members of that 
commission. They are Democrats and they are Republicans. Very 
conservative Congressman Tim Roemer is part of that. But no one 
questions what they are trying to do to get to the facts of this 
  My point is, and the point of the Senator from North Carolina is, 
this so-called bipartisan independent commission can never render 
anything the American public will accept because of the person that is 
cochairing it. Laurence Silberman is a partisan zealot.
  Now the New York Times article the Senator pointed out is a group of 
people, including Tim Roemer, and Governor Kean of New Jersey. No one 
questions his integrity. He believes we should move forward and get 
this done as soon as possible.
  I repeat, the independent commission President Bush has appointed to 
look at the failure of intelligence in our country will never, ever be 
accepted for a number of reasons, not only the breadth and scope of the 
investigation but because of the cochair, Laurence Silberman.

[[Page S978]]

  I yield the floor and suggest the absence of a quorum.