Conflict of Interest, a 9/11 Windfall and the White House Council on Environmental Quality

Jenna Orkin*


James Connaughton, Cheney's Boy Wonder

June 27 James Connaughton, the Chairman of the White House Council on Environmental Quality which coordinated with the National Security Council to edit EPA's press releases following 9/11, faced the music last Wednesday with a nimble tapdance.

Padded with cliche allusions to the 'unprecedented' attacks and a homespun vignette about his son's fear that dad was dead, Connaughton's testimony at the Senate Hearing Into Federal Government Failures on [the] Environmental Impact Of [the] 9/11 World Trade Center Attacks deftly passed the buck, pointing out that there was a flurry of press releases; they were the work-product of many people, and that anyway, the public doesn't read them.

But in the course of this fancy footwork, (First the blame is over here, now it's over there) the Chairman slipped on the banana peel of a detail.

In response to a question about the EPA Inspector General's Report of 2003 which showed how the White House CEQ "tweaked" EPA's press releases - for instance by changing cautionary statements about asbestos to reassurances and omitting advice to obtain professional cleaning - as well as why (in order to reopen Wall Street) Connaughton asserted that the 9/11 Commission later did a thorough investigation of the same issue coming to very different conclusions.

During a recess, this blog asked Connaughton if, by "thorough investigation," he was referring to the footnote on page 555 of the 9/11 Commission Report, the only mention the report makes of the environmental aftermath of the attacks.

"I am," he replied gamely. (His demeanour throughout the hearing was chipper, as of one who has nothing to hide, who is, in fact, eager for the chance to tell his side of the story.)

During the Commission hearings Richard Ben-Veniste had regretfully told the parent of a Lower Manhattan student that the Commission would not investigate the environmental issue.

This writer relayed that information to Connaughton.

"They changed their minds after the Inspector General's Report came out," he asserted. "They did a thorough investigation, interviewing lots of people."

The footnote in the Commission Report containing the fruits of said "thorough investigation" is four paragraphs long. One paragraph reads in its entirety:

"We do not have the expertise to examine the accuracy of the pronouncements in the press releases. The issue is the subject of pending litigation."

(This writer is one of twelve original plaintiffs in one of the pending lawsuits.)

As for coming to very different conclusions from the Inspector General's Report, while it is true that the Commission Report's footnote offers Whitman some support, it also says:

"The EPA did not have the health-based benchmarks needed to assess the extraordinary air quality conditions in Lower Manhattan after 9/11. The EPA and the White House therefore improvised and applied standards developed for other circumstances... Whether those improvisations were appropriate is still a subject for medical and scientific debate. See EPA Inspector General report, 'EPA's Response to the World Trade Center Collapse,' Aug. 21, 2003, pp. 9-19."

This writer then asked Connaughton about his less well-known but potentially even more explosive role as Chairman of the White House Task Force on Energy Project Streamlining which was established on the recommendation of Vice President Dick Cheney's infamously secretive National Energy Policy Development Group. The Task Force included representatives from 21 Federal agencies as diverse as the Departments of Defense, the Treasury and the CIA. (Two years later, its mandates were amended to include the security of pipelines.)

Connaughton frowned in concentration.

"Ah yes!" he said triumphantly, as though retrieving a bauble from the depths of memory.

"How does this position expand the normal powers of the CEQ?" this writer asked.

"It doesn't!" he asserted. "I inherited it."

The Task Force was created, and Connaughton appointed its Chairman, by Executive Order 13212 on May 18 , 2001 two weeks after Connaughton was appointed to the Council on Environmental Quality so it is difficult to understand from whom he 'inherited' it.

Concerning why so many disparate agencies had to be involved, Connaughton said, "The Defense Department because often the energy is located in other countries. The CIA?.... I don't know; I don't think they came to any meetings."

Serving at the pleasure of Cheney's Energy Task Force, Connaughton and the CEQ faithfully carried out the Vice President's environmental agenda of relaxing regulations (that is how "streamlining" happens) the better to serve business interests.

In fact, so lax did regulations become, they managed to offend Christine Todd Whitman, whom Cheney had brought into the EPA, a feat that is comparable to shocking Larry Flynt.*

"It was Cheney's insistence on easing air pollution controls," says the Washington Post, "not the personal reasons she cited at the time, that led Christine Todd Whitman to resign as administrator of the Environmental Protection Agency."

In response to the Inspector General's allegation that a major reason the CEQ downplayed dangers in EPA's press releases was the need to reopen Wall Street, much has been made of the fact that one smoking gun press release was issued after Wall Street re-opened; ergo re-opening the markets couldn't have been a motive.

This reasoning is simplistic; bosses don't necessarily spell out their wishes. In an article entitled "Leaving No Tracks," the Washington Post quotes Paul Hoffman, a former Cheney Congressional aide, who says, "Cheney never told [Hoffman] what to do... He didn't have to.

His genius is that he builds networks and puts the right people in the right places, and then trusts them to make well-informed decisions that comport with his overall vision."

Through the CEQ, Cheney turns up again in the furor over climate change. When NASA scientists complained of the Bush Administration's censorship of the issue, (once again by editing press releases) the spotlight fell on one Philip Cooney, who reported to Connaughton.


...And the Horse He Rode In On

Before becoming the eager hatchet man of the White House's environmental policies, James Connaughton was a partner in Sidley, Austin, Brown and Wood, which has been ranked among the top five law firms representing the 250 largest companies in the U.S. for business litigation
and as the top provider of legal services to the hedge fund industry.

Clients have included J.P. Morgan Securities, Deutsche Bank, Chinese National Offshore Oil Corporation Monsanto and GlaxoSmithKline. Sidley Austin represented Searle when it was cleared of price fixing and Marathon Oil when the federal government was ordered to provide it with a refund for the infringement of drilling rights.

The ties between Sidley Austin and the Bush Administration are extensive. Besides Connaughton, partner Patrick Morrisey has served as the Deputy Staff Director and Chief Health Counsel to the House Energy & Commerce Committee; Sidley's Senior Government Affairs Advisor, Dean Clancy is the former Program Associate Director of the Office of Management and Budget. According to the Washington Post, Clancy is a "'proclaimer' for the Separation of School and State Alliance, which favors home schooling over compulsory public education in order to 'integrate God and education.'" In addition to opposing public schools, Clancy also opposes stem-cell research and federal taxes for which reasons Esquire magazine
calls him "a fanatic."

In 2007 President Bush appointed Sidley Austin partner Daniel M. Price, who had served in The Hague as the U.S. Deputy Agent to the Iran-U.S. Claims Tribunal, as Deputy National Security Advisor for International Economic Affairs.

Then there is Bradford Berenson who returned to Sidley Austin Brown & Wood after two years as Associate Counsel to the President

According to his biography on Sidley's website, his responsibilities to the President "included work on judicial selection, executive privilege, and responses to congressional oversight efforts. In the aftermath of the September 11 attacks, he played a significant role in the executive branch’s counterterrorism response. He worked on the USA Patriot Act, the military order authorizing the use of military commissions, detainee policy and anti-terrorism litigation, presidential action against terrorist financing, and the restructuring of the federal government to create a new Department of Homeland Security...

He previously worked on the defense of complex white collar criminal matters...

Mr. Berenson has defended criminal cases at every stage of development, from corporate internal investigations and grand jury proceedings through trials, sentencings, and appeals, in areas as diverse as government contracts, environmental crime, health care, and public corruption."


Conflict of Interest Alive and Well

At the White House Berenson worked closely with Cheney's Chief of Staff, David Addington, and fended off critics who demanded the recusal of Judge Antonin Scalia, after he went duck hunting with Cheney, in the Sierra Club case demanding access to Energy Task Force records.

Conflict of interest objections were apparently waived in this case because the Government Accounting Office also hired Sidley Austin to sue Cheney to obtain a list of officials from Enron and other companies who met with the energy task force.

The ubiquitous Mr. Berenson also served as the attorney for former Rove assistant Susan Ralston during the investigation of White House ties to Jack Abramoff as well as for Kyle Sampson, Alberto Gonzalez' Chief of Staff. He defended the habeas corpus stripping provisions of the military commissions bill and has stated:

"[T]he Geneva Conventions do not apply to Al Qaeda terrorists." (p. 55)

He has also maintained that the "process that's now in place in Guantanamo is, in many ways, superior to an Article V process.... [The prisoners] all get annual administrative review board hearings, and this is far in excess of the international law obligations and the law of war obligations." (p. 55)

Like Connaughton, Berenson is a zealous executant of the Cheney philosophy, stating, "[W]hen we are at war, we weigh the risks to innocents entirely differently than we do when we are not at war. Grievous damage to the lives and liberties and property of innocents are a regrettable but daily function of a state of armed conflict, of warfare the kinds of injuries that are totally unredressable in war time, but which we would never tolerate in peace time, if we were not at war." (p. 17)

And concerning executive privilege, he stated: "It's the President in time of war, the executive branch that's responsible for our security." (p. 18)

Cleverly, he suggests that a little fascism wards off the prospect of worse: "Were there to be more attacks on the scale of 9/11 or God forbid worse, there would inevitably be a far more draconian response than we've seen thus far. And so in the name of preventing that kind of response, which the public would demand, and in the name of ensuring our ultimate victory over an Islamo-fascist ideology, a religiously inspired fascist ideology, that is as illiberal as any the world has ever seen, we all need to keep first and foremost in our minds the need to wage this war effectively and ensure that the forces of right and the forces of liberalism and democracy prevail in the end." (p. 20)


Sidley Austin, then, may be justifiably described as an eminence grise of the powers that be. But lest it be viewed as biassed towards the right, it is also the law firm where, as a summer associate, Barack Obama met his future wife, Michelle.


How Sidley Survived 9/11 Not Only "Intact...."

On 9/11 Sidley Austin, which had merged with Brown and Wood in May 2001, (the same month that Connaughton left for the White House) had its offices in the World Trade Center. In an article written in 2003, Sidley describes how it accomplished the feat of "surviv[ing] 9/11 with vital records and employees intact."

Some of these vital records which included client, personnel, vendor and services lists, backup tapes, floor plans with personnel locations identified, inventory lists of equipment, furniture, and supplies, procedures manuals, docket calendars, and blank checks, "were available because they were part of a planned dispersal in which they had been copied and sent offsite for safe keeping." Weekly computer backup tapes were also being stored in New Jersey.

The article is written in a breathless style, pausing to pay lip service to the dreadfulness of the day before going on to the myriad resourceful steps Sidley had taken to the benefit of their cherished clients.

Then comes the punchline. As far as Sidley Austin is concerned, September 11 had a silver lining made of real silver.


...But Also With A Windfall

In addition to all its other prudent measures, on September 1, 2001, Sidley had taken the extraordinarily felicitous step of not only renewing but also of doubling its insurance.

"When it was announced that the firm's insurance policies had just been renewed and doubled on September 1, 2001, applause filled the room. The insurance policies not only covered reconstruction costs for the files but for the organization's valuable art collection and personal effects as well."

This move joins a distinguished line of coincidences leading up to the attacks such as highly anomalous put options on United and American Airlines ; numerous war games including "practice Armageddons" which diverted planes away from the East Coast and introduced chaff onto the radar screens to paralyze pilots who wanted to respond; as well as dozens of warnings to agencies which are normally overlooked by the mainstream press.

Assessing its recovery plan from the attack, Sidley confesses that "some individuals listed as having supervisory roles in the disaster recovery plan ended up not having job assignments, which was frustrating to those sitting around on 9/11. Part of the problem stemmed from a lack of testing of the plan the year before."

But despite the frustration, over all "the firm," to use a Grishamesque phrase, dubbed its recovery effort a success.


One Minor Glitch

And so the reader comes away believing, even after encountering this sentence:

"By September 13, only one individual had not been located."

Written this way, the account relays the information concerning 'only one individual,' as an example of yet another triumph. What the article neglects to say, however, though it was published nearly two years after the disaster, is that the reason the individual was "not located" is that she was dead.

A telephone operator who dreamed of opening a candy business, Rosemary Smith was the only member of the firm not to make it out of the building alive. And while Sidley mentions her elsewhere on its website and has apparently put up a memorial to her somewhere in its offices, it is difficult to understand what the writer of the article means by the phrase, 'employees intact.'

The "good news" about the firm's assets, however, seems to be abundantly accurate.


*Jenna Orkin is one of twelve original plaintiffs in a class action lawsuit against Christine Todd Whitman and the EPA