Cheating Justice (8 page)

This time, the Bush team may have run out of luck. The statute of limitations in a conspiracy runs from the date of the last overt act in furtherance of the conspiracy. In this case, the conspiracy's objective, at a minimum, was to deceive Congress into authorizing and funding a military invasion so that the president and his team could launch an attack on Iraq, occupy the country militarily, remove Saddam Hussein from power, install a new regime, secure “victory,” and establish a “stable” Iraq, a claim President Bush made in announcing the commencement of the invasion on March 17, 2003. In his book
Decision Points
, the president acknowledged that the United States would be responsible for replacing Saddam's tyranny and “helping a fractured country rebuild.”
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After the invasion, President Bush and his team spent the remainder of his presidency continuing the occupation, sending additional troops to counter opposition, and spending hundreds of billions on rebuilding Iraq and maintaining a U.S. presence. As president and commander in chief, Bush continued to preside over the 100,000 U.S. troops stationed in Iraq, as well as military contractors and nonmilitary U.S. personnel, until he left office on January 20, 2009, the earliest point at which the overt acts of the Bush administration can be said to have ended. The time for prosecution under the statute of limitations on the conspiracy to defraud the government would not end before January 20, 2014. Of course, the cover-up—repeated lies—continued even after President Bush left office. And an investigation may disclose other long-term objectives of the conspiracy—such as plans to control Iraqi oil revenues or to establish permanent military bases—that extend the time for prosecution further.

A prosecution against former president George W. Bush and his top aides for conspiring to defraud the United States in violation of U.S. Code
Title 18, Section 371 is not only possible, but necessary, to prevent future presidents from similarly trampling our democracy.

 

In Watergate, former White House counsel John Dean cautioned President Nixon about the spreading criminality inside the White House. “We have a cancer within—close to the presidency, that's growing,” Dean said, according to the Nixon tapes transcript.
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The lies and fraud committed by President Bush and others in his administration in order to start, pursue, and fund a war and occupation in Iraq metastasized into a hundred tumors, a thousand cancers, not merely on the presidency, but on our democracy.

The predetermination of President Bush and Vice President Cheney to embroil the country in war in Iraq and to do so under a cloak of lies and deceit is the original flaw of the Bush administration. It led to a vicious and tangled web of secrecy, suppression of evidence, obstruction of justice, misguided policy, imperial behavior, and the ravaging of people, property, privacy, and our own values.

Once President Bush and Vice President Cheney committed themselves to war by deception, and abandoned law, reason, evidence, analysis, and the Constitution, they embarked upon a course of expanding illegality and immorality to cover their tracks. In that sense, the Bush administration mirrored the ugliest parts of Watergate and those dark times when President Nixon engaged in covert activities.

This toxic approach spread throughout administration activities. Fake intelligence information was leaked to reporters by the White House. Individuals who told the truth were pushed aside or fired. General Eric Shinseki, who—accurately, as it turns out—told Congress that two or three times more troops would be needed than the number projected by the secretary of defense, was sidelined and a successor named, as
Time
magazine recalled in a 2008 profile.
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And the
Christian Science Monitor
reminded readers in 2007 about Lawrence Lindsey, the president's chief economic advisor, who was shown the door in December 2002 after he riled the White House by estimating the costs of the war at what the president's team said was an excessively high $100 billion to $200 billion—low compared to the still-mounting tally of more than $750 billion, but far beyond the $50 to $60 billion that Secretary of Defense Rumsfeld had proclaimed as the cost.
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The ever-expanding tangle of lies about Iraq led to illegal surveillance and also to the illegal use of torture on detainees. Al-Libi, who died in prison under suspicious circumstances, was subjected to torture, not to protect Americans from terrorist attacks, but to eke out a story, any story, that could be used to make the case for war in Iraq. Other detainees experienced brutal questioning by the CIA in an effort to force a statement linking al Qaeda and Iraq, according to an FBI agent who was interviewed by Jane Mayer for her book
The Dark Side.
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The Bush administration unleashed a web of deceit at a time that Americans were vulnerable and worried after the 9/11 attacks. Speaking of the war in Iraq to the McClatchy Newspapers on September 2, 2010, Defense Secretary Robert Gates said, “The problem with this war for, I think, many Americans, is that the premise on which we justified going to war proved not to be valid—that is, Saddam having weapons of mass destruction.” He added: “It will always be clouded by how it began.”
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Although no specific laws make it a crime to drive the nation to war based on fraud, lies, and deceit, the Bush administration brought itself to an indictable place by breaking criminal laws against conspiring to defraud the Congress. These laws must be used to protect the Congress from those who would seek to obstruct its role in the future, and to protect the Constitution from those who seek to ignore or trample on it—essential safeguards for democracy and the American people.

The lives lost and damaged and the billions expended on the war in Iraq can never be recovered, but the United States can say, “Never again.” If we do not act now, we risk the danger of another president, at another time, driving the nation into another war, another occupation, based on similar lies and deceptions. Prosecution now is the way to safeguard the nation's future.

In a memorable scene in
Little Murders
, a 1960s play and subsequent movie by cartoonist Jules Feiffer, a quirky character played by Elliott Gould believes that the FBI is opening his mail. Letters arrive bent, corners torn, sealing undone, as if, Gould's character says, the FBI doesn't care one iota if he knows. Gould's character devises a scheme to taunt the FBI officer who is assigned to this task, writing letters addressed to himself with messages to the agent: “Yours cannot be a happy task—reading another man's mail. It's dull, unimaginative. A job—and let's not mince words—for a hack. . . . Have you ever wondered why they stuck you with this particular job?” Eventually, the FBI officer is pushed to the edge and begs Gould's character to stop.
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Americans have never been comfortable with secret surveillance by the government. The founders put a clause in the Constitution to protect against “unreasonable searches and seizures,” and the prohibition on surveillance without a warrant was refined by court decisions over the years. After abuses by President Nixon and others at the highest levels of the government in the name of “national security,” a new law—the Foreign Surveillance Intelligence Act, or FISA—was passed in 1978.
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President Bush decided to break the FISA law. Under a veil of secrecy, he authorized spying, completely refusing to use the FISA warrant procedures. His actions were exposed by the
New York Times
in a front-page article on December 16, 2005. “President Bush secretly authorized the
National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials,” wrote journalists James Risen and Eric Lichtblau.
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Within days, President Bush admitted that he had violated the law for nearly three years, and, belligerently, said he planned to continue.
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Then, before leaving office, the president and vice president went on a fierce campaign to change the law, apparently in hopes of immunizing their illegal acts and protecting themselves from prosecution.

The president had authorized at least two separate surveillance programs; many details about them are still unknown. It is known that the president permitted the government to read private e-mail, sweep through Internet interactions, listen to phone conversations, track phone numbers, and otherwise conduct surveillance on Americans, all unlawfully.
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Even in this day of Facebook, Twitter, and Tumblr, voluntary information sharing and social networking, Americans are entitled to be free from unwarranted government surveillance.

Data collected or scooped up by the government may remain in its files forever. The situation can be seen in its gravest light when the people under surveillance are journalists, public leaders, or those who protest official government policies.

If not carefully limited, government surveillance has a corrosive effect on our liberties. Because it is invisible, secret government wiretapping can be especially insidious. The harm is abstract—people don't necessarily know if they have been victims and the issue seems remote.

The framers of our Constitution understood the dangers of unbridled government surveillance. They knew that democracy could flourish only in spaces free from government snooping and interference, and they put restraints on government overreaching in the Fourth Amendment of the Bill of Rights: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”
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These protections require, at a minimum, a neutral arbiter—a magistrate—standing between the government's endless desire for information and the citizens' desires for privacy. Because there is no adversarial process when surveillance is initiated—the potential targets cannot be informed lest they take measures to foil the surveillance—the neutral arbiter acts as a
stand-in for those affected and tries to ensure that the government's request is reasonable and justified.

Without the arbiter, there is no check on the government's appetite, and little, or no, protection for the people who are subjected to surveillance. President Nixon, for example, decided that he didn't need to obey the laws on surveillance. In 1969, he ordered the FBI to wiretap the telephone of William Beecher, a reporter for the
New York Times
who wrote an exposé about the secret bombing of Cambodia by the United States, something President Nixon wanted to hide from the American people. Nixon wanted to uncover the source of the leak, recounted Seymour Hersh in the
Atlantic Monthly
in May 1982.
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Nixon then ordered the wiretapping of another journalist. He also placed bugs on the phones of his own National Security Council staff, and conveniently kept one going when the NSC staffer left to work for Senator Edward Muskie, a potential rival for the presidency. Without restraint, it was easy for the wiretaps to multiply and to target political opponents.

In 1973, as a newly elected member of Congress, I was assigned to the House Judiciary Committee, which was asked to investigate Watergate and the possible impeachment of President Nixon. Although the name “Watergate” came from the effort by White House operatives to break into and bug the Democratic National Committee headquarters in the Watergate building in 1972, the investigation encompassed years of illegal activity, abuse of power, and dirty tricks by President Nixon. The second article of impeachment passed by the House Judiciary Committee in July 1974 designated illegal wiretapping as one of the reasons to remove President Nixon from office.

After Nixon resigned, Congress went on to address overarching concerns about invasions of the privacy of Americans. The FBI's secret COINTELPRO (an acronym for counterintelligence program) had conducted surveillance on domestic activists from 1956 to the early 1970s. The program's stated mission was “protecting national security, preventing violence, and maintaining the existing social and political order.” This involved extensive illegal government surveillance, especially of people in the civil rights and antiwar movements, reported a committee chaired by Senator Frank Church of Idaho that conducted comprehensive hearings and completed a multiyear study in 1976.
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Following on the heels of Watergate and the Church Report, Congress
passed the Foreign Intelligence Surveillance Act of 1978 (FISA) to strike a balance between the need for foreign intelligence and the right to privacy of Americans.

Foreign intelligence surveillance differs somewhat from standard police surveillance. Foreign intelligence surveillance is aimed at a broad goal: collecting information to protect America against foreign governments, agents, international terrorists, or associated parties. FISA did not affect the collection of foreign intelligence in other countries. When foreign surveillance is conducted in the United States, however, it provided some safeguards to make sure that the rights of Americans were protected from unwarranted wiretapping of their communications. If a U.S. citizen or resident were to be subjected to electronic surveillance in the course of foreign intelligence or counterintelligence work in the United States, the government needed to apply for a FISA warrant.

The FISA law set up a special court to approve wiretapping warrants. To get a warrant, the government needed to provide much less information than in a typical law-and-order case. It needed to show only that the surveillance would serve an intelligence or counterintelligence purpose. If the target was a U.S. citizen or resident, the government had to state a national defense need and probable cause to believe that espionage or criminal activities were involved. “This process can be very speedy,” noted Majors Louis A. Chiarella and Michael A. Newton, authors of a “how-to” article in
Army Lawyer
in October 1997.
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