Cheating Justice (3 page)

But a rigorous review of Section 1001 in the more serious matter of the president's false statements to Congress about the need for war and occupation may not find the same applicability.

The second law that should concern the Bush team is U.S. Code Title 18, Section 371, a provision of the federal criminal code that makes it a federal crime to
conspire
to defraud the United States government through “deceit, craft, trickery or dishonest means.” In order to be prosecuted, two or more persons must conspire together and the people charged must take steps to implement the conspiracy through an overt act, as described by the
U.S. Attorneys Criminal Resource Manual
.
15
The U.S. Supreme Court interpreted the statute in 1910 as covering: “any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of Government.”
16
The acts of “impairing, obstructing or defeating” extend beyond cheating the government out of money,
17
and include activities intended to “frustrate the functions of an entity of the United States,” that is, interfering with or obstructing legitimate government authority, according to a 2010 overview by the Congressional Research Service.
18
This law was used in Watergate-related cases to prosecute H. R. Haldeman, a top aide to President Nixon, and others, and was also central to the prosecutions of top officials in the Iran-Contra scandal in the Reagan administration.
19

In addition to obstacles to prosecution presented by the specific requirements in both Section 1001 and Section 371, there are, as with any criminal charge, possible defenses that President Bush, Vice President Cheney, and others might raise. They apparently knew this, too. In a pattern seen in other areas, they appear to have carefully studied the law to seek ways to avoid prosecution and to set up as many barriers as possible to charges that might be brought against them. Some of their manipulations succeed; others can be pierced.

 

The facts will show that the president and his team made numerous provably false statements about the necessity for embroiling the United States in a war in Iraq. In the face of clear deceptions, the question then becomes: How do the federal laws apply—or, as the case may be,
fail
to apply—to statements, documents, and actions of President Bush, Vice President Cheney, and other Bush administration officials?

Three specific areas merit consideration by a prosecutor, two falling under Section 1001 on false statements to Congress, and another under Section 371 on a conspiracy to defraud the government.

Prosecution for a fraud first requires showing the facts and how they were misrepresented. President Bush, Vice President Cheney, and their team made a raft of statements and representations about the need and objectives for launching a war in Iraq. A prosecutor will want to ask what specific false statements were made either directly to Congress or as part of a conspiracy to defraud Congress. Unlike a prosecutor, who has the power to investigate, subpoena documents, and interview witnesses, independent analyses are, of course, limited to publicly available facts. But they are plentiful. Investigative reporters, researchers, activists, congressional reports, and inquiries in other nations have brought a substantial amount of information to light.

Here is a snapshot of some of the findings of these investigators. Five general categories of material are especially relevant to fraud charges: evidence that the Bush administration had a preexisting determination to enter a war in Iraq, dating to its earliest days in office; active engagement by President Bush and his team in a “marketing” campaign that willingly falsified information about the need for war and occupation; deceptions making false links between 9/11 perpetrators and Iraq; false claims to make
it seem that Iraq had weapons of mass destruction when the evidence indicated that it did not; and lies and distortions about the available intelligence reports, the work of weapons inspectors, and the efforts to exhaust peaceful solutions.

Understanding how falsehoods about Iraq may become a prosecutorial concern involves looking at the earliest days of the Bush administration.

The path to the war and occupation in Iraq began almost from the moment that President George W. Bush and his team entered the White House—two years and two months before his administration sent tanks rolling into Baghdad. “Overthrow of the regime” in Iraq was on the agenda at the first National Security Council meeting in winter 2001, nine months
before
the September 11 attacks, Treasury Secretary Paul O'Neill told author Ron Suskind in
The Price of Loyalty.
20

Iraq was not believed to be a threat to the United States at that time. Intelligence agencies in 1999 and 2000 felt that Iraq's nuclear, chemical, biological, and long-range missile arsenals and capability had been destroyed in the first Gulf War. No direct evidence showed any renewal of production, according to a comprehensive analysis of prewar intelligence published by the Carnegie Endowment for International Peace in 2004.
21

What is true is that nearly a dozen top Bush officials had been part of a group that had previously called for Saddam Hussein's overthrow. In 1998, Donald Rumsfeld, who would become defense secretary in the Bush cabinet, and Paul Wolfowitz, who would become his deputy, were among those who signed a report by the neoconservative Project for the New American Century in Washington, D.C., and a letter with recommendations on Iraq to then president Bill Clinton.
22
They said, among other things, that Saddam Hussein could put the world's oil supply at risk and that new military bases were needed in the Middle East to support “global leadership” in this “energy production region.”
23

After the 9/11 attacks nine months into President Bush's term, discussion immediately arose about taking military action against Iraq, although the evidence definitely showed that the attacks were carried out by nineteen men from Osama bin Laden's al Qaeda, which was based in Afghanistan. Like bin Laden, fifteen of the terrorists were from Saudi Arabia, with others from Egypt, Lebanon, and the United Arab Emirates. None was from Iraq; none lived in Iraq—and Iraq had nothing to do with 9/11. The 9/11 Commission later confirmed that there was “no credible evidence that
Iraq and al Qaeda cooperated on attacks against the United States,” said Walter Pincus and Dana Milbank in the
Washington Post
on June 17, 2004.
24

This was also known at the time of the attacks. In fact, the al Qaeda network and its associations were already familiar to the United States. President Bush was briefed on the al Qaeda threats in his first week in office. A mere three weeks before the 9/11 attacks, President Bush had been warned in a personal briefing by the CIA of a possible imminent al Qaeda strike inside the United States, according to the 9/11 Commission Report—those warnings are described further in chapter 2.
25
Then, on the day after the attacks, Richard Clarke, a highly regarded White House expert on terrorism, spoke with President Bush personally and told him that there was no connection between Saddam and the 9/11 events, Clarke said in his 2004 book
Against All Enemies.
26
But the president pressured him. Clarke recalled on
60 Minutes
: “The president . . . said, ‘I want you to find out whether Iraq did this.' Now he never said, ‘Make it up.' But the entire conversation left no doubt that George Bush wanted me to come back with a report that said Iraq did this.” At the president's insistence, Clarke filed an additional report days later with the findings of top CIA and FBI experts, again concluding that Iraq was not involved in the 9/11 attacks. He explained that the religious fundamentalists of al Qaeda actively rejected Saddam Hussein for his secular attitudes. After Clarke delivered the memo, the national security advisor's office sent it back, with a note saying, “Wrong answer . . . do it again,” Clarke said.
27
In other words, truthful information about Iraq was already being manipulated by the White House within days of the 9/11 attacks.

Six days after 9/11, President Bush gave secret instructions to the Pentagon to start planning options for a military invasion of Iraq, according to Glenn Kessler in the
Washington Post
on January 12, 2003. It was, the newspaper said, “an internal decision-process that has been obscured from public view.”
28

Reports to the president continued to underscore that Iraq and al Qaeda were not connected. The all-important President's Daily Brief (PDB) on September 21, 2001, ten days after 9/11, stated there was no complicity between Saddam and al Qaeda, according to crack investigative reporter Murray Waas in the
National Journal.
“President Bush was told in a highly classified briefing that the U.S. intelligence community had no evidence linking the Iraqi regime of Saddam Hussein to the attacks [of 9/11] and that
there was scant credible evidence that Iraq had any significant collaborative ties with al Qaeda,” wrote Waas.
29

Yet, before Thanksgiving, the president personally told the defense secretary that he wanted to see war plans for Iraq, according to writer Bob Woodward on
Frontline
.
30
In December 2001, at a time that intelligence sources still did not believe Iraq was a threat, President Bush began meeting with army general Tommy R. Franks and his war cabinet, said Woodward. The meetings were “to plan the U.S. attack on Iraq even as he and administration spokesmen insisted they were pursuing a diplomatic solution,” wrote William Hamilton in the
Washington Post
on April 17, 2004.
31
On March 12, 2002, a year before the Iraq War was initiated, National Security Advisor Condoleezza Rice told British envoy David Manning that the United States was planning a military campaign against Iraq,
32
according to British documents collected and analyzed by the National Security Archive in October 2010.
33

The evidence continued to show that Iraq was not involved with or connected to 9/11. In June 2002, the CIA reported “no conclusive evidence of cooperation” between al Qaeda and Saddam Hussein, according to the Carnegie Endowment for International Peace. In the summer of 2002—still three-quarters of a year before the Iraq War began—the British head of military intelligence, Richard Dearlove, participated in meetings in Washington, D.C. His description of those meetings, as explained in a briefing to Prime Minister Tony Blair, became known as “The Secret Downing Street Memo” after it was leaked and published in Britain's
Sunday Times
in May 2005. The memo described the White House plans: “Military action was now seen as inevitable [in Iraq]. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD [weapons of mass destruction]. But the intelligence and facts were being fixed around the policy.”
34

Because Iraq had not declared war or used force against the United States, the Bush administration decided to enlist support for the war by claiming that Saddam and Iraq posed a grave and imminent threat to the United States and were responsible in some way for the 9/11 attacks in New York and Washington. Beginning in the summer of 2002, messaging was coordinated by a new White House Iraq Group, or WHIG, to “roll out” the war. “The purpose of these meetings was to garner the intelligence justification for a pre-emptive war to remove Saddam Hussein in order to
make a case to the Congress, the American public and the international community,” wrote Melvin A. Goodman, a senior Fellow at the Center for International Policy.
35

Right after Labor Day 2002, the White House began an intensive “marketing” campaign—that is the term used by White House chief of staff Andrew Card Jr.—to pressure the U.S. Congress and the American people to enter into a war in Iraq. “From a marketing point of view, you don't introduce new products in August,” Card explained to
New York Times
writer Elisabeth Bumiller on September 7, 2002. The war launch coincided perfectly with the first anniversary of the 9/11 attacks, still a painful memory for many Americans. Bumiller wrote: “A centerpiece of the strategy, White House officials said, is to use Mr. Bush's speech on Sept. 11 to help move Americans toward support of action against Iraq.” Karl Rove, the president's political advisor, also commented, saying that September 11 would be a time “to seize the moment to make clear what lies ahead.” And, the
Times
noted, “On Capitol Hill, meanwhile, the administration has begun a full-scale lobbying campaign.”
36

Soon, the president, vice president, Secretary of Defense Donald Rumsfeld, National Security Advisor Condoleezza Rice, and others began speaking everywhere—saturating the airwaves with press conferences, interviews, talk-show punditry, and speeches. At this point, the major falsifications of the Bush administration take three-dimensional shape.