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Few Impartial on Panel Co-Chair

Times Staff Writers

The annual Halloween dinner here of the “Pumpkin Papers Irregulars” brings together a small group of influential conservatives with long memories and strong views.

In 1984, the dinner featured President Reagan’s spy chief, William J. Casey; a little-known Marine colonel named Oliver L. North, and a Washington lawyer who would have an impact on intelligence scandals for years: Laurence H. Silberman.

A few months later, Reagan named Silberman to the U.S. Court of Appeals for the District of Columbia, and it proved to be a smart move. His dinner companion, North, had hatched the idea to secretly fund anti-Communist guerrillas in Nicaragua, and was convicted for his role in what became known as the Iran-Contra scandal.

Silberman wrote an opinion that voided the charges and effectively ended the prosecution of the Reagan White House.

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Now, as the recently named co-chairman of a White House commission to look into intelligence lapses before the Iraq war, Silberman is once again in a position to review the failings of a Republican administration.

His co-chairman on the new commission is former Virginia Sen. Charles S. Robb, a moderate Democrat.

Silberman’s past associations, from that private dinner with Washington’s most militant cold warriors to his aggressive challenge of President Clinton both in the courtroom and behind the scenes, are raising questions about whether he was an appropriate choice to lead a dispassionate, impartial inquiry.

“He is fiercely partisan, pugnacious and very political,” said Herman Schwartz, an outspoken, liberal law professor at American University. “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’s a thumb in the eye to those who were looking for a real investigation.”

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But if he is despised on the left, he is revered by many on the right. Michael Ledeen, a consultant to Reagan’s National Security Council, praised Silberman’s keen intellect, knowledge of foreign policy and intelligence issues and his “tough-minded, unsentimental” approach to any topic.

Silberman fit easily with the fervent anti-Communists who make up the “Pumpkin Papers Irregulars.” They gather every Halloween to honor Whittaker Chambers, the ex-Communist who exposed the State Department’s Alger Hiss in the late 1940s when he revealed stolen files that were hidden in a pumpkin on his Maryland farm.

In his years as judge, Silberman has drawn bright, young conservatives as clerks, many of whom have emerged as key figures in the Bush administration.

Former Justice Department lawyer Viet Dinh, chief author of the USA Patriot Act passed after the Sept. 11 attacks, clerked for Silberman a decade ago.

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“I think he is the most knowledgeable person around on the intersection of law and national security,” he said of Silberman.

Before his judicial career, Silberman had served as the deputy U.S. attorney general in the Justice Department, which oversees the FBI; as U.S. ambassador to Yugoslavia; and, most recently, as head of the special court that reviews domestic spying on foreign agents.

“He has a good perspective of someone who has overseen intelligence gathering and used intelligence that has been gathered. Judge Silberman will call it as he sees it,” Dinh said.

Silberman was asked Tuesday to respond to questions about his ability to serve impartially. He did not comment.

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What is hard to find is someone in Washington who has a neutral view of Silberman.

His service in Republican administrations dates to 1969, when he joined the Nixon administration’s Labor Department as a lawyer. He rose to the No. 2 job in the Justice Department under President Ford during the years when Donald H. Rumsfeld and Dick Cheney had top jobs in Ford’s White House.

In the fall of 1980, when Ronald Reagan was running to unseat President Carter, Silberman and two other Reagan advisors met secretly with a man who claimed to have ties to the government in Iran, which was holding 52 Americans hostage.

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.

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After Reagan’s victory over Carter, Silberman was put in charge of a transition team for the Central Intelligence Agency. But he lost out for the top job to Casey, Reagan’s longtime friend.

In speeches and opinion articles, Silberman called for aggressive action against communists in Central America, and he slammed the Democratic majority in Congress for banning U.S. funds to support the Contras in Nicaragua.

In 1987, when Reagan was under investigation by an independent counsel, Silberman wrote an opinion striking down the Independent Counsel Act as a threat to the presidency. The Supreme Court overwhelmingly reversed him months later.

But Silberman had the last word in 1990. His opinion, joined by fellow Reagan appointee David Sentelle, voided North’s conviction and also spared Reagan’s national security advisor, John M. Poindexter. The lone dissenter was Judge Patricia Wald, a liberal whom Bush also named to the commission last week.

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Former independent counsel Lawrence Walsh, in his book “Firewall: The Iran-Contra Conspiracy and Cover-Up,” said he regretted not asking the judge to recuse himself and that he considered sending a transcript of Silberman’s questioning of one of his deputies to the House Judiciary Committee, “which could review judicial misconduct.”

During the Clinton years, Silberman was one of President Clinton’s most aggressive tormenters. In 1998, hewas 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 S. Lewinsky.

Silberman’s opinion ripped Atty. Gen. Janet Reno for acting in the “personal interest” of Clinton and it questioned whether the president, by allowing aides to criticize independent counsel Kenneth W. Starr, was “declaring war on the United States.” Outside the courtroom, the judge also was working to foil the Democratic president, but only behind the scenes.

“He was unremittingly hostile to the Clinton administration and was advising me on how to attack them,” recalled David Brock, a onetime conservative author who now criticizes the right.

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As he wrote articles on “Travelgate,” Whitewater and charges by Arkansas state troopers that the former governor had extramarital sex, Silberman was his “faithful advisor,” Brock recalled. The judge, he said, encouraged him to be aggressive, and, on one occasion, suggested a specific tip involving the president’s sex life to pursue.

As Brock fretted over whether to publish a story quoting troopers about then-President Clinton’s sex life as governor, the judge strongly encouraged Brock to go ahead, he wrote in his 2002 book, “Blinded by the Right.”

When he wrote critically about then-Sen. Paul Simon and other Democrats on the Judiciary Committee, he sent an advance copy to the Silberman home. The Silbermans, he wrote, were ecstatic about the case he made against Simon, a vocal critic of Silberman during the judge’s confirmation hearing.

During this period, the Silberman house became “like a second home,” Brock said. There, he was introduced to leading conservatives who met regularly with the judge and his wife.

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While there, he learned that the judge and his wife were close to Cheney and his wife, Lynn.

This month, Cheney took a keen interest in the formation of the intelligence panel, making telephone calls to Capitol Hill to talk about potential nominees.


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