White House fights and loses battle to withhold Benghazi records

The White House rolls over on the disclosure of internal Benghazi deliberations in response to leaks; experts say this need not be a lasting precedent

President Barack Obama's White House fought and lost a battle to avoid making public what it claimed were confidential records of internal deliberations over the attack on a US diplomatic post in Benghazi, Libya last September.
Obama administration officials portray their unsuccessful effort to avoid disclosing the records as the end result of a process of "accommodation" which the government's executive branch routinely uses to respond to frequent requests and subpoenas by Congress for sensitive materials.
But some politicians and legal experts say the administration's decision to not release the records sooner may have backfired, prolonging the controversy and deepening the determination of critics in Congress to keep the story alive. "I don't trust them as far as I can throw them," said Republican Senator Lindsey Graham, who accused the administration of trying to "stonewall Congress at every turn."
The administration at first refused to show copies of the Benghazi records, including emails and drafts of what proved to be inaccurate public "talking points" about the attack, to anyone outside the executive branch.
In the face of escalating congressional demands for the materials, the administration then offered closed-door briefings on these, officials said.
Subsequently, facing a squeeze in the Senate over the confirmation of Obama's counterterrorism adviser John Brennan as CIA director, the White House allowed congressional intelligence committees to read the records in secret rooms, but not to take copies, the officials said.
As recently as last week, administration lawyers still maintained the White House had a rock-solid case that the Benghazi material could be withheld from Congress, even if subpoenaed, executive branch and congressional officials said.
The White House argued, as have past administrations, that it did not have to hand over materials that were part of a "deliberative process," these officials said.
"Releasing internal deliberations is something that goes to the kind of protections that have existed for the executive branch for many administrations of both parties," White House spokesman Jay Carney said Tuesday.
The very next day, White House released the records in response to leaks about their contents that the administration characterised as inaccurate.
Eric Schultz, a White House spokesman, said: "Despite the fact that e-mails relating to the Benghazi talking points were made available to members of Congress several months ago, in recent days these e-mails have been selectively and inaccurately read out to the media. To make clear what is and is not in these e-mails ... the White House took the extraordinary step of releasing" them.
Republican Representative Peter King, a member of the House Intelligence Committee, said that the administration's decision, after fighting for months to keep the documents secret, had "definitely weakened their credibility going forward."
Nothing in the materials made public "was of national security concern" and the White House's withholding of the documents was "clearly a political attempt by them," he said.
Obama's political opponents have charged that the talking points were deliberately skewed to protect his image as an effective counterterrorism fighter in the heat of last year's presidential election campaign.
Some officials now argue that what the documentation shows is manoeuvring between bureaucrats at the State Department and CIA to avoid or shift blame for what is now widely regarded as a foreign policy fiasco.
Legal experts said the administration's U-turn on disclosure is consistent with similar battles fought by Obama's predecessors.
For example, President Richard Nixon fought, but ultimately lost, a battle to avoid disclosing tapes he had made about the Watergate scandal. President Bill Clinton tried and failed to block prosecutors from questioning his aides in an investigation of his relationship with White House intern Monica Lewinsky.
Because legal doctrine on "deliberative process" and "executive privilege" lacks a solid basis in the US Constitution, fights between presidents and Congress over disclosures often degenerate into squabbles. "It's all a political battle," said Lou Fisher, a former constitutional expert at the Library of Congress.
Steven Ryan, a lawyer with McDermott Will and Emery who worked as a prosecutor and congressional investigator said that because the law is so murky, "it's a flexible doctrine." He said it would be difficult to imagine officials like former Vice President Dick Cheney, who believed in strong executive power, abandoning a deliberative process claim the way Obama did.
Steven Schwinn, a professor at the John Marshall Law School in Chicago, said the White House cave-in on the Benghazi documents could damage its credibility, but it would not necessarily undermine future legal claims by Obama to withhold materials. Courts are historically very reluctant to order such disclosures or enforce congressional subpoenas, he said.
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