Cheating Justice (2 page)

Torture and cruel and inhuman treatment violate solemn treaties, as well as our own laws. The horrid pictures of prisoner abuse at Abu Ghraib, according to various testimonies, encouraged jihad against U.S. soldiers, endangering their lives. As a former district attorney, I know that highly trained, experienced investigators can frequently obtain vital information without ever lifting a finger against the person being questioned.

As for starting a war by lies and deception, no more serious legal violations can be envisioned—thousands of lives lost, expenditures of a trillion dollars, and the violation of our treaty obligations against fighting an unprovoked war.

The devastation caused by the Bush administration is so vast that, in some ways, we have been numbed to its extent and corrosiveness. Now that they are out of office, reasserting the rule of law and holding President Bush and Vice President Cheney answerable, where possible, is a necessary task.

Active steps are needed to investigate the misconduct of the Bush-Cheney administration: a special prosecutor to investigate possible illegal actions and bring charges where appropriate; a truth commission to make sure that all of the facts and actions are established for a historical record; new legislation by Congress to patch holes in the law to prevent repetition
of the same behavior; citizen action to demand that our constitutional standards be upheld.

Prosecution is by no means a minor matter. Prosecutors must analyze the evidence and the law, persuade a grand jury to return an indictment, try the case before a jury. The evidence must meet each element of the crime in the statute and overcome defenses that those charged may assert. Prosecution isn't something to be approached lightly—but it is critical to serious accountability.

The argument that conducting investigations would tear the country apart is not true, but in any case is no reason to desist from requiring accountability. America is certainly strong enough to weather a fair and professional investigation of presidential criminality. During the Watergate inquiry, the same argument that the country would somehow suffer harm turned out to be untrue.

Our nation prohibits titles of nobility precisely in order to guard against the formation of a legal hierarchy in our society. Presidents are not kings; they are ordinary human beings, subject to ordinary temptations, who must be treated like any other persons if they have broken the law. We do not have an aristocracy of former government officials with immunity.

The danger to our democracy is seen most starkly when former Bush administration officials trumpet their crimes, proudly and publicly, without any fear that they will be held to account. As with any crime that goes unprosecuted, the failure to take action against a former president who has committed crimes stands as an indictment of the society that permits the impunity. The failure to prosecute trivializes the acts constituting the crime, suggesting, in the case of President Bush, that torture, disappearance, cruel and inhuman treatment, abrogation of our treaties, violation of our laws on privacy, deception of the Congress, and subversion of the constitutional checks on war making are minor matters, easily overlooked. It means rejecting what used to be regarded as core American values, and even worse, sends a clear signal to future presidents that they may act with similar disregard for the law.

President Bush walks confidently, a slight bounce in his step, as he heads to the podium in the House of Representatives for his 2003 State of the Union address to Congress. An American flag pin prominently placed on his left lapel is set off by a blue-on-blue tie. At the podium, he picks up two manila folders and presents them to the two men on a raised dais behind him—Vice President Cheney on one side, Speaker of the House Dennis Hastert, a Republican from Illinois, on the other. They accept the folders, shake his hand.

Turning back to the audience, the president stands and smiles lightly while the members of Congress rise and clap—both sides of the aisle, applauding for fifty-four seconds before the Speaker introduces him. The president begins his address, his voice modulated with a mixture of calm and certitude. He has a written text in front of him, and he refers to it from time to time. But he is practiced, and it shows: he delivers the speech well.

Nearly one-third of the speech is devoted to Iraq, and most of what it says marches toward a future war. The president is laying out the case for why the United States should attack Iraq years after it was defeated in the first Gulf War led by his father.
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But there is one problem: several of the “facts” that the president includes about Iraq are not true. They are not merely exaggerated claims, but complete falsehoods, propaganda designed to push the Congress to war. Several months later—but after the war has
started—the White House concedes that a few false words had worked their way into what, by all appearances, was a highly rehearsed moment.

President Bush and his Oval Office insiders gave a new twist to the concepts of deceit and fraud in embroiling the nation in war and occupation in Iraq. Without a flutter, they deliberately rolled out a months-long “marketing” strategy beforehand, purposely deceiving both the public and Congress about the reasons and need to attack Iraq. What's more, along the way they seem to have plotted personal escape routes from the consequences of their deceptions.

No one likes being duped, but it takes more than a mere lie to meet the standards for criminal prosecution. A prosecutable fraud has several elements, each of which must be met. Among other things, the falsehoods must be intentional and they must be central to the misrepresentation. Falsehoods designed to deceive Congress may constitute a crime in some cases, but under federal law, these situations are narrowly defined. When the fraud is used to drive the nation into an aggressive war and seemingly limitless occupation, resulting in thousands of deaths, vast property destruction, and the expenditure of billions of taxpayer dollars, the ethical stakes are high.

The reality is that President Bush, Vice President Cheney, and key players in the Bush administration wanted to start a war in Iraq, which, they knew, also meant occupying the country and reshaping it thereafter. The facts did not support their military adventurism, so they concealed some facts and invented others in order to advance their objectives. Because public awareness of the lies could have short-circuited their endeavors, or led to impeachment or prosecution, Bush officials soon began a cover-up—no cost to democracy was too great to protect their hides.

President Bush, Vice President Cheney, their political guru Karl Rove, and others still continue the pattern of lying and concealment. Although it is now clear from all available evidence that the Bush administration engaged in a deceitful campaign to launch a war and the occupation of Iraq, and that enormous suffering and loss have resulted, accountability is nowhere in sight. In his book
Decision Points
, released in November 2010, President Bush defended the war in Iraq, even though weapons of mass destruction, his main argument for the war, did not exist.

President Bush and his advisors engaged in an extensive false information campaign to ensnare the nation into war and its aftermath. By carefully
choosing what was said, by whom, and in what context, the president and White House operatives managed to slip around the laws that protect Congress from deceit. They were determined to insulate themselves from prosecution, and as a result, many of the most blatant lies delivered by the Bush officials may not be prosecutable. Despite this, the president and his team left open one possibility: prosecution of their conspiracy to defraud the Congress. Given the egregious nature of their acts and their tragic and ongoing consequences, this should be pursued—with vigor.

Staggering personal and financial costs have been incurred in the Iraq War begun by President Bush on March 19, 2003. As documented in “Faces of the Fallen” in the
Washington Post
, by early 2011, eight years after the invasion of Iraq, more than 4,400 American soldiers had been killed.
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Hundreds of soldiers from Britain, Australia, Denmark, Spain, and other nations also died, reports iCasualties.org,
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while tens of thousands of Iraqi civilians lost their lives and millions were displaced, according to analysis by the Brookings Institution.
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At least 2 million U.S. service members were deployed to Iraq by May 6, 2010, and more than thirty thousand were injured, according to “The Iraq War Ledger.” A 2008 study by the RAND think tank found that as many as 500,000 military personnel suffered post-traumatic stress or brain injuries.
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War spending cost U.S. taxpayers more than $740 billion (fifteen times the initial Bush estimates), notes the Iraq War Ledger,
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and the war in Iraq lasted longer than the Revolutionary War, the Civil War, or the U.S. engagement in World War II. Even after combat troops were finally withdrawn at the end of August 2010, more than fifty thousand U.S. military personnel were left operating in Iraq, along with tens of thousands of private military contractors; thousands of troops can be expected to stay for years to come, reported the
Christian Science Monitor
in February 2011.
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President Bush, Vice President Cheney, and others in the top echelons of the administration lied to the American people hundreds of times about the need, the reasons, and the evidence for engaging in a war in Iraq, according to documentation by the Center for Public Integrity, an investigative journalism organization.
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The real reason that the United States entered into a war in and occupation of Iraq is still unknown. Speculation abounds. Was it for oil contracts? Was it to build military bases in the Middle East? Was it to avenge an attempted assassination of President Bush's father? Or to show up his father for deciding not to invade Iraq during the
first Gulf War? Was it to power up the military, play down Vietnam? Was it to brand President Bush as a “war president” and win reelection?

What is known is that the war was initiated by a planned and plotted campaign of deceit that preceded it by many months, even years. The founders of our democracy understood that presidents, like kings, would be prone to seek unnecessary wars, draining the treasury dry and putting citizens' lives at risk. They created a system of checks and balances in the U.S. Constitution to restrain the executive's war-making power—or so they thought. Article I, Section 8 gives Congress the power to declare war, as well as an array of other war powers, such as the power to raise armies and navies, and the power to control military appropriations. In Article II, Section 2, the president is given power as the commander in chief of the army and navy “when called into actual Service of the United States.”
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The founders believed that so long as a president alone could not start a war and had to seek congressional support for funding a war and calling up troops, presidential war-making ambitions might be reined in. Congress, they hoped, would be more attentive to popular concerns and would be able to check a president's unjustified war intentions. But they may not have fully anticipated the danger posed by a president who would lie and deceive Congress to maneuver around the checks and balances carefully put in place by the Constitution.

False statements and fraud are central to claims against the president. Fraud in people's daily experience ranges from a Bernard Madoff–type investment scheme to a used-car dealer who rolls back the odometer. Although fraud laws vary in their details, in general, a criminal prosecution for fraud involves certain common elements, each of which must be proven. A criminal fraud, as described in a basic legal dictionary, is comprised of “an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which that person relies with resulting injury or damage.”
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Two federal laws, in particular, should concern President Bush and his colleagues. One may provide enough wiggle room for them to avoid prosecution. The other may offer a firm basis, even an imperative, for arrest and trial.

The False Statements Accountability Act of 1996 (18 USC § 1001) makes it a crime to submit false information to Congress in particular situations. Under Section 1001 the statement submitted to Congress must be false, the falsehood must be “material” or central to the misrepresentation, and the person making it must act “knowingly and willfully.”

There are exceptions within the law: not all statements to Congress, even if false, are prosecutable. The law applies to Congressional communications only in “administrative matters” (including “a document required by law”) or to “any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress.” The punishment for violation of Section 1001 is imprisonment for up to five years and a fine.
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Recent application of the law illustrates both how it functions in contemporary cases and crucial obstacles presented by the case of President Bush and his Iraq War lies. One publicized use of the “false statements” law emerged in criminal charges against Major League Baseball players. In August 2010, former Yankees pitcher Roger Clemens was indicted for allegedly making false statements to Congress in testimony that he gave to a House Committee, in which he denied using any steroids or human growth hormones, despite contradictory testimony of a trainer.
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“When a witness, such as Roger Clemens, lies, as I think he did, he should be held accountable,” then committee chair Representative Henry Waxman of California told ESPN on August 20, 2010.
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In the case of ballplayer Miguel Tejada, the prosecutor spoke movingly at a sentencing hearing about the need for accountability, words that should ring in the ears of President Bush. Tejada pleaded guilty in March 2009 to making a false statement to Congress about the use of banned substances. Assistant U.S. attorney Steven Durham said, “People have to know that when Congress asks questions, it's serious business. And if you don't tell the truth—and we can prove you haven't told the truth—then there will be accountability,” reported the Associated Press. Durham continued, “What people are not entitled to do . . . is to provide untruthful or dishonest answers. No one has that right. Not the people who are well-known—and not the people who are unknown.”
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