Cheating Justice (5 page)

The president also told Congress:

These words—they became the infamous “sixteen words”—were later acknowledged to be incorrect by the president and his advisors, but only after the war in Iraq had been initiated and was well under way. On July 9, 2003, press secretary Ari Fleischer, speaking to a White House press pool in Pretoria, South Africa, said, “This information should not have risen to the level of a presidential speech.”
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The president undoubtedly knew the words were false at the time that he spoke them to Congress. The CIA, the State Department, and the International Atomic Energy Agency had already found the same claim about Iraq's procuring uranium from Niger to be baseless. The State Department wrote a memo two weeks before the speech, on January 12, 2003, explaining that the uranium claim was bogus—it was based on a badly forged letter with a fake letterhead. The State Department head of intelligence, Carl Ford Jr., said he was confident that the reservations about the Niger intelligence
made their way to President Bush, Vice President Cheney, and Secretary of Defense Donald Rumsfeld, according to an article by Jason Leopold in April 2006.
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The high-level National Intelligence Council gave a definitive and unequivocal judgment to the White House in January 2003 that the uranium claim was untrue, information that “arrived at the White House as Bush and his highest-ranking advisers made the uranium story a centerpiece of their case for the rapidly approaching war against Iraq,” wrote Barton Gellman and Dafna Linzer in the
Washington Post
on April 9, 2006.
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The White House conceded that the statement was false only months later when former ambassador Joseph C. Wilson IV revealed that he had gone to Niger in February 2002 at the behest of the CIA to investigate whether nuclear-grade uranium was being purchased by Iraq. He found out that there were no such transactions and reported his findings to the CIA in March 2002, ten months before the president's State of the Union speech and a year before the start of the war. In an op-ed in the
New York Times
on July 6, 2003, three months after the Iraq invasion, he made this information public. Wilson said that the president had “twisted” the facts about the need for war.
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(These events also led to a campaign of retaliation against Wilson, including leaks traced to the White House that “outed” Wilson's wife, Valerie Plame, as a CIA agent. I. Lewis “Scooter” Libby, a top aide to the president and Vice President Cheney, was tried and convicted of perjury for trying to cover up Cheney's role in this scheme, although his prison sentence was quickly commuted by President Bush.)

Previously, CIA director George Tenet had removed the fake claim about uranium procurement from a Bush speech, according to his 2008 book
At the Center of the Storm.
“The vision of a despot like Saddam getting his hands on nuclear weapons was galvanizing,” he said, adding that it “provided an irresistible image for speechwriters, spokesmen, and politicians to seize on.”
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Apparently for the president, as well.

At first, Tenet took the blame for the sixteen false words in the State of the Union speech, as reported on CNN on July 16, 2003.
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Then the press learned that Tenet had insisted on removing the same language from an earlier Bush speech. So, within days, deputy national security advisor Stephen Hadley stepped forward to say, no,
he
was to blame for the sixteen admittedly false words, said the BBC in “Aide Takes Blame for Uranium
Claim” on July 22, 2003.
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(Hadley was later promoted to national security advisor, and Tenet was awarded the Presidential Medal of Freedom.)

Clearly, the White House was frantic over the disclosure of the sixteen false words. After all, Congress might want to inquire. It was beginning to look as if the president was speaking of himself and not Saddam Hussein when he said in that same State of the Union speech, “[He] has not credibly explained these activities. He clearly has much to hide. . . . he is deceiving.”

 

Looking closely at Section 1001 of the federal code on false statements to Congress, how do the elements of the criminal code match up with President Bush's 2003 State of the Union address?

The president's 2003 State of the Union speech, a major address delivered to the nation's top decision makers, contained many falsehoods that constituted “false and material” statements, including the infamous “sixteen words,” and more. These falsehoods were a central part of the speech and its intended message—to convince Congress of the necessity for war, one of the most critical decisions a nation can make. According to the 1988 decision of the U.S. Supreme Court in
Kungys v. United States
, a statement meets the “materiality” test if it has a “natural tendency to influence or be capable of influencing the decision making body to which it is addressed.” Clearly, the State of the Union address meets the “false and material” test.
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The law also requires that a statement must be made “knowingly and willfully,” a condition that is met if an individual “knew that his statement was false when he made it or—which amounts in law to the same thing—consciously disregarded or averted his eyes from the likely falsity,” wrote the Congressional Research Service in a report,
Obstruction of Congress.
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The president knew that the information in the speech was not correct from presidential briefings, and if he did not, it is because he disregarded the briefings, the intelligence, or both—that is, he “consciously disregarded or averted his eyes.” A prosecutor would not have difficulty meeting the “knowingly and willfully” test.

But did the State of the Union address meet the standard of Section 1001, which requires the false statements to be presented in a
form
prohibited by the law? Section 1001 has built-in limits on when criminal prosecution may be deployed. Only certain types of communications to Congress
may be subject to prosecution, even if false. This element of the Section 1001 could present a prosecutor with a serious headache.

In passing the new Section 1001 in 1996, Congress limited the types of communication that could be prosecuted. It didn't want to create “an intimidating atmosphere” or to “undermine the free-flow of information” from constituents, Representative Bill McCollum explained in a speech before the House on September 25, 1996. Not every letter from an angry constituent or odd conspiracy theory sent to a member of Congress is subject to prosecution for lying, even if it is untrue. Nor did Congress intend to permit prosecution for “routine fact gathering” or advocacy, according to debate in the House.
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As a result of these concerns, false statements may be prosecuted under Section 1001 only if contained in “a document required by law,” as part of an authorized “investigation or review,” or an “administrative matter.” Does the State of the Union address fall within one of those categories?

On the first point, the State of the Union message is “required by law”—actually, by the U.S. Constitution, which states in Article II, Section 3 that the president “shall from time to time provide Congress Information about the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”
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But even though President Bush gave an oral and written presentation to Congress, it is not clear that the Constitution “requires” that the message be in writing, and a prosecutor will have to work harder to show that the State of the Union address fits within that definition in the law.

As for whether it is an “investigation or review,” the State of the Union address is not the same as a hearing to gather information for new legislation or fact finding to fulfill oversight responsibilities, which is the sense of that phrase. And the term “administrative matters”—murky, at best—is meant to cover things like false payroll requests by members of Congress.

In truth, the State of the Union message is not a document, an investigation, or an administrative filing, but a policy statement filled with goals and warnings, aspirations and opinions, as well as suggestions for future action by Congress. Although President Bush manipulated this venue to shill for a war and present a false picture to the Congress, in general, the State of the Union address represents the kind of communication that the framers intended for presidents to provide freely and without inhibition. Presidents frequently puff, exaggerate, overpromise, and shade the truth in their State
of the Union addresses. The framers undoubtedly knew this would occur, but nonetheless believed that the value of the information outweighed the danger of misstatements—and even untruths.

President Bush and his team, no doubt, knew the wording of the “false statements” law. They may have even chosen this venue and this event as a safe harbor to showcase their truth-straining and deceit-laden case for war, perhaps knowing full well that they probably could not be charged with any violation of Section 1001. In any case, stretching the carefully limited provisions of Section 1001 to encompass the president's State of the Union address is not a good use of the law or, despite the many falsehoods, an appropriate prosecution under Section 1001. If the president's team was keeping score, they won on this one.

While justice may have been cheated in this instance, all may not be lost: the deceits about Iraq contained in the State of the Union address, combined with other statements and acts, may fold into a criminal conspiracy to defraud the government.

The president's second communication to Congress that brings Section 1001 of the criminal code into view is the “letter of determination,” sent only seven weeks after the 2003 State of the Union. This communication to Congress does not fall prey to the same problems with the false statements law as the State of the Union address—although its application, unfortunately, may encounter other obstacles.

On March 18, 2003, President Bush sent identical, personally signed letters to the president pro tem of the Senate, Senator Ted Stevens, and the Speaker of the House, Representative Dennis Hastert. The letter of determination was submitted under the requirements of a joint resolution passed by Congress in October 2002—the so-called “Authorization for Use of Military Force.”

Asserting their role regarding war powers under the Constitution, both houses of Congress had passed the “Congressional Joint Resolution to Authorize Use of Military Force Against Iraq,” Public Law 107–243. Known as the AUMF on Iraq, it authorized the use of military force against Iraq—if certain conditions were met, including a requirement that the president make available to the Senate and the House his determination that

The president's letter of March 18, 2003, to the Speaker of the House said:

The letter of determination spit back the exact language of the Authorization of Military Force (AUMF) on Iraq. But there was a distinct flaw: it wasn't true. The president could not verify the preconditions for entering the war, and he knew this.

Since not all false statements made to Congress can start the jail keys jangling, some questions need to be addressed by a prosecutor. Does the letter meet the standards for making a false statement to Congress (false,
material, knowing)? Is this letter, unlike the State of the Union address, a type of communication that is covered under Section 1001?

On the question of “false and material statement,” in two short paragraphs, the letter of determination managed to pack in a multitude of falsehoods. It was untrue that Iraq was involved in planning, authorizing, committing or aiding the terrorist attacks of September 11, 2001. Also untrue was the claim that a war against Iraq was a “necessary” action in response to 9/11.

The president was unable to say truthfully that “peaceful means” alone would not protect the United States since weapons inspectors were still working in Iraq and were willing to continue. It was the U.S. invasion itself that forced them to leave. On the eve of the war, the UN ordered fifty-six inspectors and staff to get out of Iraq, the Associated Press reported on March 18, 2003;
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a total of 119 inspectors had worked in Iraq from November to March, said the Carnegie Endowment for International Peace.
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The inspectors were answering questions and solving critical concerns, wrote David Corn on
Politics Daily
.
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And they had found no evidence of the existence or development of weapons of mass destruction.