The White House Criminal Conspiracy

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Sun, 30 Oct 2005 13:01:30 -0500

The White House Criminal Conspiracy

 

 

 

 

 

The White House Criminal Conspiracy

By Elizabeth de la Vega

Tom Dispatch

 

http://www.truthout.org/docs_2005/103005Y.shtml

 

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% 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% 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 were

suitable only for centrifuges and so proved Iraq's pursuit of nuclear

weapons.

 

If, as 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 on

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.

 

--------

 

Elizabeth de la Vega is a former federal prosecutor with more than

twenty years' experience. During her tenure she was a member of the

Organized Crime Strike Force and chief of the San José branch of the

U.S. Attorney's Office for the Northern District of California.

 

This is the cover story of the November 14 issue of the Nation

magazine just now appearing on the newsstands.