Legally, there are no significant differences between the investor fraud perpetrated by Enron CEO Ken Lay and the prewar intelligence fraud perpetrated by George W. Bush. Both involved persons in authority who used half-truths and recklessly false statements to manipulate people who trusted them. There is, however, a practical difference: The presidential fraud is wider in scope and far graver in its consequences than the Enron fraud. Yet thus far the public seems paralyzed.
In response to the outcry raised by Enron and other scandals, Congress passed the Corporate Corruption Bill, which President Bush signed on July 30, 2002, amid great fanfare. Bush declared that he was signing the bill because of his strong belief that corporate officers must be straightforward and honest. If they were not, he said, they would be held accountable.
Ironically, the day Bush signed the Corporate Corruption Bill, he and his aides were enmeshed in an orchestrated campaign to trick the country into taking the biggest risk imaginable–a war. Indeed, plans to attack Iraq were already in motion. In June Bush announced his “new” pre-emptive strike strategy. On July 23, 2002, the head of British intelligence advised Prime Minister Tony Blair, in the then-secret Downing Street Memo, that “military action was now seen as inevitable” and that “intelligence and facts were being fixed around the policy.” Bush had also authorized the transfer of $700 million from Afghanistan war funds to prepare for an invasion of Iraq. Yet all the while, with the sincerity of Marc Antony protesting that “Brutus is an honorable man,” Bush insisted he wanted peace.
Americans may have been unaware of this deceit then, but they have since learned the truth. According to a Washington Post/ABC News poll conducted in June, 52 percent of Americans now believe the President deliberately distorted intelligence to make a case for war. In an Ipsos Public Affairs poll, commissioned by AfterDowningStreet.org and completed October 9, 50 percent said that if Bush lied about his reasons for going to war Congress should consider impeaching him. The President’s deceit is not only an abuse of power; it is a federal crime. Specifically, it is a violation of Title 18, United States Code, Section 371, which prohibits conspiracies to defraud the United States.
So what do citizens do? First, they must insist that the Senate Select Committee on Intelligence complete Phase II of its investigation, which was to be an analysis of whether the Administration manipulated or misrepresented prewar intelligence. The focus of Phase II was to determine whether the Administration misrepresented the information it received about Iraq from intelligence agencies. Second, we need to convince Congress to demand that the Justice Department appoint a special prosecutor to investigate the Administration’s deceptions about the war, using the same mechanism that led to the appointment of Patrick Fitzgerald to investigate the outing of Valerie Plame. (As it happens, Congressman Jerrold Nadler and others have recently written to Acting Deputy Attorney General Robert McCallum Jr. pointing out that the Plame leak is just the “tip of the iceberg” and asking that Fitzgerald’s authority be expanded to include an investigation into whether the White House conspired to mislead the country into war. )
Third, we can no longer shrink from the prospect of impeachment. Impeachment would require, as John Bonifaz, constitutional attorney, author of Warrior-King: The Case for Impeaching George Bush and co-founder of AfterDowningStreet.org, has explained, that the House pass a “resolution of inquiry or impeachment calling on the Judiciary Committee to launch an investigation into whether grounds exist for the House to exercise its constitutional power to impeach George W. Bush.” If the committee found such grounds, it would draft articles of impeachment and submit them to the full House for a vote. If those articles passed, the President would be tried by the Senate. Resolutions of inquiry, such as already have been introduced by Representatives Barbara Lee and Dennis Kucinich demanding that the Administration produce key information about its decision-making, could also lead to impeachment.
These three actions can be called for simultaneously. Obviously we face a GOP-dominated House and Senate, but the same outrage that led the public to demand action against corporate law-breakers should be harnessed behind an outcry against government law-breakers. As we now know, it was not a failure of intelligence that led us to war. It was a deliberate distortion of intelligence by the Bush Administration. But it is a failure of courage, on the part of Congress (with notable exceptions) and the mainstream media, that seems to have left us helpless to address this crime. Speaking as a former federal prosecutor, I offer the following legal analysis to encourage people to press their representatives to act.
The Nature of the Conspiracy
The Supreme Court has defined the phrase “conspiracy to defraud the United States” as “to interfere with, impede or obstruct a lawful government function by deceit, craft or trickery, or at least by means that are dishonest.” In criminal law, a conspiracy is an agreement “between two or more persons” to follow a course of conduct that, if completed, would constitute a crime. The agreement doesn’t have to be express; most conspiracies are proved through evidence of concerted action. But government officials are expected to act in concert. So proof that they were conspiring requires a comparison of their public conduct and statements with their conduct and statements behind the scenes. A pattern of double-dealing proves a criminal conspiracy.
The concept of interfering with a lawful government function is best explained by reference to two well-known cases where courts found that executive branch officials had defrauded the United States by abusing their power for personal or political reasons.
One is the Watergate case, where a federal district court held that Nixon’s Chief of Staff, H.R. Haldeman, and his crew had interfered with the lawful government functions of the CIA and the FBI by causing the CIA to intervene in the FBI’s investigation into the burglary of Democratic Party headquarters. The other is U.S. v. North, where the court found that Reagan Administration National Security Adviser John Poindexter, Poindexter’s aide Oliver North and others had interfered with Congress’s lawful power to oversee foreign affairs by lying about secret arms deals during Congressional hearings into the Iran/contra scandal.
Finally, “fraud” is broadly defined to include half-truths, omissions or misrepresentation; in other words, statements that are intentionally misleading, even if literally true. Fraud also includes making statements with “reckless indifference” to their truth.
Conspiracies to defraud usually begin with a goal that is not in and of itself illegal. In this instance the goal was to invade Iraq. It is possible that the Bush team thought this goal was laudable and likely to succeed. It’s also possible that they never formally agreed to defraud the public in order to attain it. But when they chose to overcome anticipated or actual opposition to their plan by concealing information and lying, they began a conspiracy to defraud–because, as juries are instructed, “no amount of belief in the ultimate success of a scheme will justify baseless, false or reckless misstatements.”
From the fall of 2001 to at least March 2003, the following officials, and others, made hundreds of false assertions in speeches, on television, at the United Nations, to foreign leaders and to Congress: President Bush, Vice President Cheney, Press Secretary Ari Fleischer, National Security Adviser Condoleezza Rice, Secretary of State Colin Powell, Defense Secretary Donald Rumsfeld and his Under Secretary, Paul Wolfowitz. Their statements were remarkably consistent and consistently false.
Even worse, these falsehoods were made against an overarching deception: that Iraq was involved in the 9/11 attacks. If Administration officials never quite said there was a link, they conveyed the message brilliantly by mentioning 9/11 and Iraq together incessantly–just as beer commercials depict guys drinking beer with gorgeous women to imply a link between beer drinking and attractive women that is equally nonexistent. Beer commercials might be innocuous, but a deceptive ad campaign from the Oval Office is not, especially one designed to sell a war in which 2,000 Americans and tens of thousands of Iraqis have died, and that has cost this country more than $200 billion so far and stirred up worldwide enmity.
The fifteen-month PR blitz conducted by the White House was a massive fraud designed to trick the public into accepting a goal that Bush’s advisers had held even before the election. A strategy document Dick Cheney commissioned from the Project for a New American Century, written in September 2000, for example, asserts that “the need for a substantial American force presence in the Gulf transcends the issue of the regime of Saddam Hussein.” But, as the document reflects, the Administration hawks knew the public would not agree to an attack against Iraq unless there were a “catastrophic and catalyzing event–like a new Pearl Harbor.”
Not surprisingly, the Bush/Cheney campaign did not trumpet this strategy. Instead, like corporate officials keeping two sets of books, they presented a nearly opposite public stance, decrying nation-building and acting as if “we were an imperialist power,” in Cheney’s words. Perhaps the public accepts deceitful campaign oratory, but nevertheless such duplicity is the stuff of fraud. And Bush and Cheney carried on with it seamlessly after the election.
By now it’s no secret that the Bush Administration used the 9/11 attacks as a pretext to promote its war. They began talking privately about invading Iraq immediately after 9/11 but did not argue their case honestly to the American people. Instead, they began looking for evidence to make a case the public would accept–that Iraq posed an imminent threat. Unfortunately for them, there wasn’t much.
In fact, the National Intelligence Estimate (NIE) in effect as of December 2001 said that Iraq did not have nuclear weapons; was not trying to get them; and did not appear to have reconstituted its nuclear weapons program since the UN and International Atomic Energy Agency (IAEA) inspectors departed in December 1998. This assessment had been unchanged for three years.
As has been widely reported, the NIE is a classified assessment prepared under the CIA’s direction, but only after input from the entire intelligence community, or IC. If there is disagreement, the dissenting views are also included. The December 2001 NIE contained no dissents about Iraq. In other words, the assessment privately available to Bush Administration officials from the time they began their tattoo for war until October 2002, when a new NIE was produced, was unanimous: Iraq did not have nuclear weapons or nuclear weapons programs. But publicly, the Bush team presented a starkly different picture.
In his January 2002 State of the Union address, for example, Bush declared that Iraq presented a “grave and growing danger,” a direct contradiction of the prevailing NIE. Cheney continued the warnings in the ensuing months, claiming that Iraq was allied with Al Qaeda, possessed biological and chemical weapons and would soon have nuclear weapons. These false alarms were accompanied by the message that in the “post-9/11 world,” normal rules of governmental procedure should not apply.
Unbeknownst to the public, after 9/11 Wolfowitz and Under Secretary of Defense for Policy Douglas Feith had created a secret Pentagon unit called the Counter Terrorism Evaluation Group (CTEG), which ignored the NIE and “re-evaluated” previously gathered raw intelligence on Iraq. It also ignored established analytical procedure. No responsible person, for example, would decide an important issue based on third-hand information from an uncorroborated source of unknown reliability. Imagine your doctor saying, “Well, I haven’t exactly looked at your charts or X-rays, but my friend Martin over at General Hospital told me a new guy named Radar thinks you need triple bypass surgery. So–when are you available?”
Yet that was the quality of information Bush Administration officials used for their arguments. As if picking peanuts out of a Cracker Jacks box, they plucked favorable tidbits from reports previously rejected as unreliable, presented them as certainties and then used these “facts” to make their case.
Nothing exemplifies this recklessness better than the story of lead 9/11 hijacker Mohammed Atta. On December 9, 2001, Cheney said it was “pretty well confirmed” that Atta had met the head of Iraqi intelligence in Prague in April 2001. In fact, the IC regarded that story, which was based on the uncorroborated statement of a salesman who had seen Atta’s photo in the newspaper, as glaringly unreliable. Yet Bush officials used it to “prove” a link between Iraq and 9/11, long after the story had been definitively disproved.
But by August 2002, despite the Administration’s efforts, public and Congressional support for the war was waning. So Chief of Staff Andrew Card organized the White House Iraq Group, of which Deputy Chief of Staff Karl Rove was a member, to market the war.
The Conspiracy Is Under Way
The PR campaign intensified Sunday, September 8. On that day the New York Times quoted anonymous “officials” who said Iraq sought to buy aluminum tubes suitable for centrifuges used in uranium enrichment. The same morning, in a choreographed performance worthy of Riverdance, Cheney, Rumsfeld, Powell, Condoleezza Rice and Gen. Richard Myers said on separate talk shows that the aluminum tubes, suitable only for centrifuges, proved Iraq’s pursuit of nuclear weapons.
If, as Jonathan Schell put it, the allegation that Iraq tried to purchase uranium from Niger is “one of the most rebutted claims in history,” the tubes story is a close second. The CIA and the Energy Department had been debating the issue since 2001. And the Energy Department’s clear opinion was that the tubes were not suited for use in centrifuges; they were probably intended for military rockets. Given the lengthy debate and the importance of the tubes, it’s impossible to believe that the Bush team was unaware of the nuclear experts’ position. So when Bush officials said that the tubes were “only really suited” for centrifuge programs, they were committing fraud, either by lying outright or by making recklessly false statements.
When in September 2002 Bush began seeking Congressional authorization to use force, based on assertions that were unsupported by the National Intelligence Estimate, Democratic senators demanded that a new NIE be assembled. Astonishingly, though most NIEs require six months’ preparation, the October NIE took two weeks. This haste resulted from Bush’s insistence that Iraq presented an urgent threat, which was, after all, what the NIE was designed to assess. In other words, even the imposition of an artificially foreshortened time limit was fraudulent.
Also, the CIA was obviously aware of the Administration’s dissatisfaction with the December 2001 NIE. So with little new intelligence, it now maintained that “most agencies” believed Baghdad had begun reconstituting its nuclear weapons programs in 1998. It also skewed underlying details in the NIE to exaggerate the threat.
The October NIE was poorly prepared–and flawed. But it was flawed in favor of the Administration, which took that skewed assessment and misrepresented it further in the only documents that were available to the public. The ninety-page classified NIE was delivered to Congress at 10 pm on October 1, the night before Senate hearings were to begin. But members could look at it only under tight security on-site. They could not take a copy with them for review. They could, however, remove for review a simultaneously released white paper, a glitzy twenty-five-page brochure that purported to be the unclassified summary of the NIE. This document, which was released to the public, became the talking points for war. And it was completely misleading. It mentioned no dissents; it removed qualifiers and even added language to distort the severity of the threat. Several senators requested declassification of the full-length version so they could reveal to the public those dissents and qualifiers and unsubstantiated additions, but their request was denied. Consequently, they could not use many of the specifics from the October NIE to explain their opposition to war without revealing classified information.
The aluminum tubes issue is illustrative. The classified October NIE included the State and Energy departments’ dissents about the intended use of the tubes. Yet the declassified white paper mentioned no disagreement. So Bush in his October 7 speech and his 2003 State of the Union address, and Powell speaking to the United Nations February 5, 2003, could claim as “fact” that Iraq was buying aluminum tubes suitable only for centrifuge programs, without fear of contradiction–at least by members of Congress.
Ironically, Bush’s key defense against charges of intentional misrepresentation actually incriminates him further. As Bob Woodward reported in his book Plan of Attack, Tenet said that the case for Iraq’s possession of nuclear weapons was a “slam dunk” in response to Bush’s question, “This is the best we’ve got?” Obviously, then, Bush himself thought the evidence was weak. But he did not investigate further or correct past misstatements. Instead, knowing that his claims were unsupported, he continued to assert that Iraq posed an urgent threat and was aggressively pursuing nuclear weapons. That is fraud.
It can hardly be disputed, finally, that the Bush Administration’s intentional misrepresentations were designed to interfere with the lawful governmental function of Congress. They presented a complex deceit about Iraq to both the public and to Congress in order to manipulate Congress into authorizing foreign action. Legally, it doesn’t matter whether anyone was deceived, although many were. The focus is on the perpetrators‘ state of mind, not that of those they intentionally set about to mislead.
The evidence shows, then, that from early 2002 to at least March 2003, the President and his aides conspired to defraud the United States by intentionally misrepresenting intelligence about Iraq to persuade Congress to authorize force, thereby interfering with Congress’s lawful functions of overseeing foreign affairs and making appropriations, all of which violates Title 18, United States Code, Section 371.
To what standards should we hold our government officials? Certainly standards as high as those Bush articulated for corporate officials. Higher, one would think. The President and Vice President and their appointees take an oath to defend the Constitution and the laws of the United States. If they fail to leave their campaign tactics and deceits behind–if they use the Oval Office to trick the public and Congress into supporting a war–we must hold them accountable. It’s not a question of politics. It’s a question of law.