Still more White House secrecy -- this time in the Tillman investigation

The administration's refusal to produce key documents in the Pat Tillman fraud demonstrates that we simply no longer have open government.

By Glenn Greenwald

Published July 14, 2007 10:40AM (EDT)

The fraud perpetrated in the Pat Tillman case -- just like the similar fraud perpetrated in the Jessica Lynch case -- was not unusual. But its high-profile victim ensured that a critically important lesson was illustrated: namely, just how deceitful the propaganda is when the military issues politically self-serving claims which a complicit media then dutifully and uncritically recites ("Pat Tillman heroically killed by enemy fire" -- "Jessica Lynch battles the Enemy to the end and is rescued from her Iraqi torture chamber" -- "the U.S. military is vanquishing al Qaeda and making Iraq safe for freedom").

Although the circumstances surrounding Pat Tillman's death are more or less known, the questions of how the fraud happened, and more importantly, who is responsible, are still unanswered. Those are among the questions which The House Committee on Oversight and Government Reform is currently investigating -- or at least trying to investigate. Amazingly -- truly -- the Bush administration is refusing to provide the key documents which would answer those questions, on the ground that they are protected by some sort of vague strain of "executive confidentiality":

The White House has refused to give Congress documents about the death of former NFL player Pat Tillman, with White House counsel Fred F. Fielding saying that certain papers relating to discussion of the friendly-fire shooting "implicate Executive Branch confidentiality interests."

As dubious as the assertion of this privilege is in the U.S. attorneys case, the very idea that "executive privilege" or some vague notion of "executive confidentiality interests" can justify the concealment of these documents is just absurd on its face.

After the April hearing where the Tillman family testified, the Committee demanded "'all documents received or generated by any official in the Executive Office of the President' relating to Corporal Tillman's death." This involves the death of a single soldier in Afghanistan three years ago, and specifically entails how and why the Pentagon lied about the circumstances surrounding his death. The notion that the White House and Pentagon can simply block investigations into such transparent wrongdoing on the generic ground that their behavior is "confidential" is one of the flimsiest and most offensive attempts yet to destroy any remnants of open government.

Encouragingly, this refusal to produce information was objected to jointly by Chairman Henry Waxman and the ranking Committee Republican Tom Davis. Yesterday, they sent a letter (.pdf) to White House Counsel Fred Fielding, pointing out that "the main focus of the Committee's investigation is to examine what the White House and leadership of the Department of Defense knew about Corporal Tillman's death and when they knew it."

In response to the Committee's earlier demand for information, the White House produced only two (meaningless and already-publicly-available) documents showing communications between it and the DoD about Tillman's death when, it goes without saying, there are far more communications than that. In fact, as the Waxman/Davis letter notes, they are already in possession of documents which reference White House/DoD communications on the Tillman fraud which the White House continues to conceal.

Most incriminatingly, the Committee previously obtained copies of warnings from an Army General that the official version of the Tillman death was suspect and that it was "highly possible" that, instead, he was killed by friendly fire. The warning specifically referenced the need to warn the President of this fact in light of the speeches he was planning to deliver which would include tributes to Tillman's heroism and would tout the false version of events.

The White House failed to produce any of those warnings it received, or any other documents reflecting when they learned that the version they were disseminating about Tillman was likely false. As the Waxman/Davis letter put it:

The [April] Committee hearing . . . raised questions about whether the administration has been providing accurate information to Congress and the American people about the ongoing war in Iraq and Afghanistan. These questions have implications for the credibility of the information coming from the battlefields in Iraq and Afghanistan and raise significant policy issues about how to prevent the future dissemination of untrue information. They also have a profound personal impact on the Tillman family.

But this latest decree from the White House that it is not subject to oversight or investigation simply underscores that we no longer have an open government in this country. They operate in complete secrecy and simply defy anyone to do anything about it.

The only issue now for Congress is how they are going to force the confrontation we desperately need, and do it as aggressively and as quickly as possible. It is past the time for lawyer letters and pretty protest statements about government secrecy. Contempt orders and referrals for criminal prosecution are long overdue. John Dean's latest FindLaw column has an excellent discussion of some of the legal and political issues governing this confrontation, and Marty Lederman previously provided a definitive survey of the mechanics of how Congress pursues a finding of criminal contempt against administration officials.

As the New York Times Editorial Page put it today in urging that Congress hold Sara Taylor and Harriet Miers in contempt: "Any lesser response would be an invitation to this executive branch, and every future one, to treat Congress not as a co-equal branch of government, but as a little more than an advisory body." That (at most) is what Congress has been for the last six years.

As their behavior in the Tillman case amply demonstrates, the White House's refusal to allow any light to be shined on what they do extends far beyond just the U.S. attorneys case. It is how they operate generally; it is but a prong in their overarching belief that they exist far beyond any checks and above the rule of law. The only two choices realistically available is to (1) allow this rampant lawlessness and tyrannical unchecked secrecy simply to continue or (2) take every step available to force it to stop. There is no third, nicer, less confrontational or more pleasant option.

Glenn Greenwald

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