[Dialogue] The White House Criminal Conspiracy

[Harry Wainwright]

Colleagues, a very disturbing article. Peace, Harry 
  _____  




Published on Sunday, October 30, 2005 by TomDispatch.com
<http://www.tomdispatch.com>  

The White House Criminal Conspiracy 

by Elizabeth de la Vega

This is the cover story of the November 14 issue of the Nation
<http://www.thenation.com>  magazine just now appearing on the newsstands. 

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 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 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. 

Copyright 2005 Elizabeth de la Vega 

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