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Oversight Committee Objects to Withholding of Tillman Documents

July 13, 2007

On April 24, 2007 the Oversight Committee held a hearing, “Misleading Information from the Battlefield,” which focused on the rescue of Army Private Jessica Lynch in Iraq and the death of Army Ranger Specialist Patrick Tillman in Afghanistan. The Gavel covered the hearing extensively, which left many disturbing questions unanswered:

* Oversight Committee Hearing on Tillman, Lynch Incidents [The Gavel]
* Hearing on Tillman, Lynch Incidents: What Was Known [The Gavel]
* Hearing on Tillman, Lynch Incidents: A Callous Reaction [The Gavel]
* Hearing on Tillman, Lynch Incidents: “Tampered” [The Gavel]
* “Why Would They Burn It?” [The Gavel]

Three days later, the Committee wrote to Secretary Gates and White House Counsel Fielding requesitng further documents. Today the Oversight Committee follows up:

Committee Objects to Withholding of Tillman Documents

Today Chairman Waxman and Ranking Minority Member Davis sent a letter to the White House objecting to the withholding of documents related to the death of U.S. Army Corporal Patrick Tillman, who was killed by friendly fire in Afghanistan in 2004. As a result of deficient responses from both the White House and Defense Department, the Committee also announced an August 1 hearing to examine what senior Defense Department officials knew about Corporal Tillman's death.

Following the Committee's April 24, 2007, hearing on the Tillman fratricide, the Committee wrote to White House Counsel Fred Fielding seeking “all documents received or generated by any official in the Executive Office of the President” relating to Corporal Tillman's death. The White House Counsel's office responded that it would not provide the Committee with documents that “implicate Executive Branch confidentiality interests” and produced only two communications with the officials in the Defense Department, one of which was a package of news clippings. The response of the Defense Department to the Committee's inquiry was also deficient.

In response to the deficiencies in the White House and Defense Department productions, Chairman Waxman and Ranking Member Davis today sent letters to White House Counsel Fred Fielding and Defense Secretary Robert Gates requesting complete document production by July 25, 2007. Chairman Waxman also wrote the Republican National Committee to request communications about Corporal Tillman's death by White House officials using e-mail accounts controlled by the RNC.

In addition, the Oversight Committee announced that a hearing will be held on Wednesday, August 1, 2007, to investigate what senior officials at the Defense Department knew about Corporal Tillman's death.

* Full Letter to Secretary Gates (pdf)
* Letter to RNC Chairman Mike Duncan (pdf)
* The White House’s June 15 Response to Committee’s Inquiry (pdf)

Letter to White House Counsel Fred Fielding (pdf):

July 13, 2007

Mr. Fred F. Fielding
Counsel to the President
The White House
Washington, DC 20500

Dear Mr. Fielding:

We have had an opportunity to review the documents the White House produced in response to the Committee’s April 27,2007, request for information relating to the death of Army Corporal Patrick Tillman. We appreciate that you have sent 1072 pages of documents to the Committee, but we have concerns about the documents that are missing, the documents that are being withheld, and the documents that appear never to have been searched.

The main focus of the Committee’s investigation is to examine what the White House and the leadership of the Department of Defense knew about Corporal Tillman’s death and when they knew it. Unfortunately, the document production from the White House sheds virtually no light on these matters.

We urge you to make a complete document production to the Committee without fuither delay.

The Missing Documents

In the entire White House document production, there are only two communications between any officials in the White House and the Defense Department. The first is an e-mail exchange on April 23, 2004, the day after Corporal Tillman was killed in a friendly fire attack. It is between Lawrence Di Rita, the Defense Department spokesman, and Jeanie Mamo, a deputy assistant to the President and director of media affairs at the White House. Ms. Mamo asked Mr. Di Rita for details regarding Corporal Tillman’s death, and Mr. Di Rita answered, “details are sketchy just now.”

The second e-mail occurs 41 days later, on June 4, 2004. It is a transmission of a press packet from the Defense Department containing news clips. One of the “items of interest” is a May 29, 2004, article entitled “Investigation Concludes Friendly Fire Probably Killed Tillman.”

It is difficult to believe that these are the only communications that White House officials had with the Department of Defense between April 22, 2004, the day Corporal Tillman died, and May 29, 2004, the day the Bush Administration publicly announced that Corporal Tillman’s death was a result of fratricide. Corporal Tillman’s death was a major national story. During this period, the President made public statements regarding Corporal Tillman and praised his service to the counhy during the annual White House Correspondents’ Dinner on May 1, 2004.

In fact, there is compelling evidence that responsive documents were not produced to the Committee by the White House. ln response to a similar document request from the Committee, the Defense Department produced an e-mail sent on April 28, 2004, from John Currin, the White House speechwriter who drafted the Correspondents’ Dinner speech, seeking additional information about Corporal Tillman from the Department of Defense.a This e-mail was not produced by the White House, and no explanation was provided for the omission.

Mr. Currin’s request appears to have generated a high-level military memo waming that the President should be informed that Corporal Tillman was killed by friendly fire. On April 29, 2004, one day after the request by Mr. Currin from the White House, Army Major General Stanley McChrystal, the commander of the Joint Task Force for Afghanistan, sent a “Personal For” (P4) memo to three of the highest ranking generals at the Department of Defense: the commanders of U.S. Central Command, U.S. Special Operations Command, and the U.S. Army Special Operations Command.s According to General McChrystal, he wrote this memo in response to reports that President Bush “might include comments about Corporal Tillman’s heroism and his approved Silver Star Medal in speeches currently being prepared, not knowing the specifics surrounding his death.” The memo explained that “it is highly possible that Corporal Tillman was killed by friendly fire.”

General McChrystal concluded the P4 memo by urging his superiors to warn the White House:

I felt that it was essential that you received this information as soon as we detected it in order to preclude any unknowing statements by our country’s leaders which might cause public embarrassment if the circumstances of Corporal Tillman’s death become public.

Inexplicably, the White House production includes no copies of the P4 memo or any references to it. The production also does not include any response from the Defense Department to Mr. Currin’s e-mail.

Indeed, there is not a single document in the White House production that indicates how or when any White House officials, including the President, learned that Corporal Tillman was killed by his own unit.

We are sure you can understand our doubts about the completeness of your document production. It is not plausible that there were no cofirmunications between the Defense Department and the White House about Corporal Tillman’s death.

The Withheld and Redacted Documents

According to the letter your office sent to the Committee on June 15, 2007, the White House is withholding “certain documents responsive to the Committee’s request because they implicate Executive Branch confidentiality interests.” The White House has also redacted over 30 pages of documents provided to the Committee. The letter states that you took this action because these documents contain “purely internal e-mails between White House personnel.”

These are not appropriate reasons for withholding the documents from the Committee. During the Clinton Administration, the White House provided the Committee with thousands of pages of internal White House e-mails, including e-mails between the Vice President and his staff. The White House also provided the Committee with handwritten notes of White House staff and internal White House memoranda, including memos to or from the White House Counsel, Deputy White House Counsel, Associate White House Counsel, the Assistant to the President and Deputy Chief of Staff, and the First Lady, among others.

In your letter, you indicate that you are willing to discuss possible accommodations regarding the documents that the White House withheld and redacted. Under the precedents of the Committee, the Committee has the right to obtain these documents unless the President asserts a valid claim of executive privilege. No such privilege has been asserted in this case.

In similar circumstances, such as the Committee’s document request to the White House Council on Environment Quality, we have offered the White House the option of a staff review of the documents. Under this process, documents are brought to the Committee offices for review by the Committee staff. Only those documents that are determined after the review to be important to the investigation need to be produced.

This process has worked well previously and helped to narrow the Committee’s differences with the White House. We are prepared to offer this option to you in this case as an accommodation to your concems, provided that the review can be arranged expeditiously.

The Documents That Apparently Were Not Searched

We are also concemed that you have produced only e-mails to the Committee. The instructions sent with the Committee’s document request specifically requested “all documents received or generated by” the White House that related to Corporal Tillman. The term “document” is defined in the attachment to the letter sent to you by the Committee on April 27, 2007. In addition to e-mails, it includes faxes, memos, drafts, working papers, and interoffice and intra-office communications. Yet no faxes, memos, drafts, working papers, and forms of communication other than e-mails were provided to the Committee.

We do not understand the omission of these types of responsive documents. It appears that despite the Committee’s express instructions, no effort was made to search for these categories of responsive documents. Obviously, that would not be an appropriate response to the Committee’s request.

Conclusion

The hearing the Oversight Committee held on April 24, 2007, with members of Corporal Tillman’s family and former Army Private Jessica Lynch, 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. It is for these reasons that the Committee requested documents from the White House.

We would like to avoid a confrontation over these documents, if possible, but cannot accept the deficient production the White House has provided to the Committee. Moreover, with the Committee’s next hearing on this issue scheduled for August 1, 2007, continued delay in providing the responsive documents would frustrate the Committee’s on-going investigation.

The June 15, 2007, letter from your office says that you are “willing to discuss possible accommodations that meet the Committee’s oversight interests while respecting separation of powers principles.” To enable the Committee to perform its oversight function, we ask that you produce the withheld and redacted documents, or bring them to the Committee for staff review, by July 18, 2007. In addition, we request that you produce the missing documents, as well as the responsive documents that apparently have not been searched, by July 25, 2007.

If you have any questions regarding this request, please contact one of us or ask your staff to contact the Committee staff.

Sincerely,

Henry A. Waxman
Chairman

Tom Davis
Ranking Minority Member

Here Specialist Patrick Tillman’s brother, Kevin Tillman gave opening testimony during the April 24, 2007 hearing:

Kevin Tillman:
“My name is Kevin Tillman. Two days ago marked the third anniversary of the death of my older brother Patrick Tillman in Afghanistan. To our family and friends it was a devastating loss. To the nation t was a moment of disorientation. To the military, it was a nightmare. But to others within the government, it appears to have been an opportunity.”

Here Rep. Elijah Cummings (MD-04) delved into questions surrounding that P4 memo:

Rep. Elijah Cummings:
“This P4 memo was sent by General McChrystal, who was your brother’s regiment commander in Afghanistan to three high-ranking generals including General Kensinger, the head of special operations, and General Abizaid, the head of Central Command. The P4 memo warns, and I quote, “It is highly possible that Corporal Tillman was killed by friendly fire.” End of quote. And it seems to be responding to inquiries from the White House…”

Here Rep. Bruce Braley (IA-01) questioned Specialist Bryan O’Neal, U.S. Army, an eyewitness to Tillman’s death, on apparent tampering with his original reports on the incident:

Rep. Braley:
“This version of the statement also says you, quote, ‘engaged the enemy very successfully,’ end quote, that the enemy moved most of their attention to your position which, quote, ‘drew a lot of fire from them.’ Did you write these sentences claiming that you were engaged with the enemy?”

Specialist O’Neal:
“No, sir.”

Here Chairman Henry Waxman questioned Specialist Patrick Tillman’s mother, Mary Tillman, about the callous response she received from some to her persistence in getting the truth about her son’s death:

Mary Tillman:
“…He’s still a Colonel – Col. Kauzlarich said, and I’m appalled that he would make these comments, he’s entitled to his opinion of course, but he said that we would never be satisfied, because we’re not Christians. Spirituality doesn’t enter into this I guess, in his mind. But you know, we’re not Christians, so we can’t put him to rest, and that’s why we would never be satisifed and we’re just a pain in the ass basically… He also said that it must make us feel terrible that Pat’s worm dirt.”