Cheating Justice (6 page)

Nor could the president truthfully say that other peaceful means would result in inadequate protection of the United States. Carne Ross, a British diplomat at the United Nations in 2003, told a British commission investigating the war in Iraq in 2010 that it was a “disgrace” that all peaceful options had not been exhausted, reported the
Guardian
newspaper.
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The UN Security Council had passed Resolution 1441 on November 8, 2002, calling for Iraq to comply with inspectors or face “serious consequences,” but by carefully hammered-out terms of the resolution, a second Security Council resolution was required to authorize a war. President Bush refused to seek the second resolution after it became clear that it would be vetoed, and he declared war without it. International lawyers were near unanimous in their objections, pointing out that there was not an “imminent threat” that would provide an excuse for ignoring the second resolution, wrote Richard Norton-Taylor in the
Guardian
on March 14, 2003.
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President Bush, however, slammed the door on the diplomatic process and peaceful means, and, on top of that, the clear obligations of the United States under the UN Charter.

There was also no truth to the statement that Iraq posed a “continuing threat” to the United States, since the intelligence agencies had determined that Iraq was not likely to attack or to provide weapons of mass destruction
to terrorists and, according to all available research, did not even have weapons of mass destruction to provide. The letter of determination clearly meets the “falsehood” test.

The element of “materiality” requires that the false statement have a “natural tendency to influence or be capable of influencing the decision making body.” The false statements by the president in the letter of determination went to the heart of the matter—embroiling the United States in a war and occupation in Iraq. The members of Congress had predetermined the exact conditions that would influence them to agree to a war. The president had to certify that these conditions had been met in order to engage in war. The president's statements that he had met the preconditions set by Congress were not only an influence, but also a determinant of the decision by Congress. The “materiality” test is undoubtedly met.

On the matter of whether Bush made these false statements “knowingly and willfully,” it's clear the president knew very well that Iraq was not involved in the 9/11 attacks and, therefore, an attack on Iraq had nothing to do with undertaking “necessary actions” against those responsible for 9/11. He had been told that Iraq was not involved in person by the White House expert on terrorism, in writing, and in intelligence briefings. He knew that Iraq was not a security threat to the United States and was not a continuing threat. He knew that he had not pursued all peaceful means to resolve any questions about Iraq's intentions since he had not waited for weapons inspectors to complete their work, or for the United Nations to vote on a new Security Council resolution. The elements of “knowingly and willfully” are met.

The final element of the law that must be met is whether the letter was “required by law or any investigation or review duly authorized by Congress.” The president's letter of determination certainly falls under the definition of “a document required by law.” He was required to submit it before invading Iraq. Had President Bush simply ordered troops into Iraq without sending a letter of determination in compliance with the AUMF, Congress might have responded with his impeachment and removal from office. Defying a congressional resolution on military action would have entailed grave constitutional and political risks, including an outcry that democracy was under assault.

On the other hand, President Bush's deceptive letter of determination, filled with false statements, does the equivalent job of destroying our
constitutional system. President Bush acted with callous disregard for the criminal law—and his oath of office—by signing a document submitted to Congress filled with falsehoods. This letter certainly takes the form of a statement covered by the “false statements” law.

The false statements in the letter of determination, personally signed by the president, meet all the elements of Section 1001 of the federal law, which makes it a crime to present false statements to Congress. But before a prosecution could proceed, what defense would the president have?

Despite clear evidence that President Bush violated Section 1001, he and his defenders can now point to the statute of limitations—five years. Since the letter of determination was dated March 18, 2003, the five-year limit for prosecution under the False Statements Accountability Act expired on March 18, 2008—while President Bush was still in office. Although it fails to serve justice, the president has a viable defense.

Because of this aspect of the law, President Bush may have dodged a bullet under the false statements law. Since a president probably cannot be prosecuted while in office (impeachment was possible and would have been a good idea), by getting elected to a second term, the president was able to avoid criminal consequences, letting the statute of limitations expire while he still held office.

President Bush seemed to have this view of his accountability too. After being reelected in fall 2004, the president was asked about accountability for the war, as reported in the
Washington Post
on January 16, 2005. President Bush responded: “We had an accountability moment, and that's called the 2004 election. And the American people listened to different assessments made about what was taking place in Iraq, and they looked at the two candidates, and chose me, for which I'm grateful.”
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To avoid repetition of this scenario, the law should be reformed to extend the statute of limitations for crimes committed by a president while in office.

But, as with the 2003 State of the Union address, this obstacle to prosecution does not close off the possibility of proceeding on the basis of conspiracy to defraud the United States for falsifications in the letter of determination, and there the statute of limitations is longer.

A coterie of individuals—inside the White House and the Pentagon—participated in the deceptive campaign to launch a war against Iraq. Section 371 of the federal code provides an antidote and permits prosecution for such a conspiracy.
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Section 371 has a powerful history. People in the presidential inner circle and cabinet have been charged with conspiracy to defraud the government for their illegal acts in the past.

In the Watergate era, Section 371 was used prominently in an indictment of H. R. Haldeman, President Nixon's top aide. The charges against Haldeman arose from a series of conversations he had with President Nixon in the White House, described in the 1974 report of the House Judiciary Committee on the impeachment of Richard M. Nixon.
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After the arrest of White House–connected operatives caught breaking into the Democratic headquarters in the Watergate office complex, President Nixon and his aides tried to cover any tracks that led to them. Haldeman and Nixon met in the Oval Office to discuss what to do. One plot was to get the CIA to stop the FBI investigation into the break-in on the grounds of national security, a pretext concocted by Nixon and Haldeman. This conversation was picked up on a taping system that the president had installed in the White House, seemingly for archival purposes. Called the “smoking-gun tape,” the discussion proved beyond a doubt that Nixon himself had been involved in the cover-up. Once it became known, Nixon's impeachment and removal from office were guaranteed. To avoid those consequences, President Nixon resigned from office shortly after the tape became public.
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Haldeman was convicted of conspiracy to defraud the United States, obstruction of justice, and perjury.
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Others were also charged—former attorney general John Mitchell, presidential aide John D. Ehrlichman, special counsel Charles Colson, and three other men, as described in the indictment filed in federal district court.

President Nixon was named as an unindicted co-conspirator on the charge of obstruction of justice, as explained in the 1975 report of the Watergate Special Prosecution Force.
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If Nixon had not been president at the time, the grand jury would have indicted him, as well, as part of this conspiracy. (The special prosecutor believed that, while in office, the president could not be indicted.) After he left office, Nixon was pardoned by President
Ford, preventing criminal charges from being brought against him for the behavior evidenced in the tapes. The need for the pardon highlights that a president can be subjected to criminal prosecution once out of office.

Another case that sheds light on the interpretation of Section 371 comes from the Iran-Contra scandal in 1986, during the presidency of Ronald Reagan. This scandal, as described in depth in the final report of the independent counsel filed with the court, involved two schemes executed by top National Security Council officials in the Reagan administration. The NSC officials first hatched a plan to sell arms to Iran—despite U.S. laws prohibiting the sales—in exchange for freeing several American hostages taken by Hezbollah, a terrorist organization in Lebanon with close ties to Iran. The second plan involved using funds from the arms sales to provide financial and military support for the Contras, who were fighting the elected leftist Sandinista government in Nicaragua. Aid and support for the Contras was barred by law. Regardless, the arms were sold to Iran for an inflated price with the money going into a slush fund that was used to support the Contras. To cover up and avoid detection, the Reagan officials involved—National Security Advisor Robert McFarlane, his successor, Admiral John Poindexter, and their subordinate, Lieutenant Colonel Oliver North—made false statements to Congress in written documents and oral testimony.

An independent special prosecutor, former judge Lawrence Walsh, was appointed to investigate the Iran-Contra scandal and eventually fourteen people were charged with criminal offenses. North, Poindexter, and others were indicted for conspiring to defraud the United States under Section 371, among other charges. North was also charged with obstruction of congressional investigations, making false statements to a congressional committee, and the shredding of official documents.

In the final report of the independent prosecutor, Walsh provided a valuable analysis of the meaning of conspiracy to defraud Congress, and these explanations resonate with the conspiracy inside the Bush White House as well.

Walsh wrote: “The conspiracy . . . involved activities that were shielded by a campaign of lies and deceptions from Government officials who could have disagreed with those activities and might have sought to stop them.” The activity in the Reagan era—providing military assistance to the Contras—was carried out, Walsh wrote, “in a way calculated to defeat legal
restrictions governing the conduct of military and covert operations and congressional control of appropriations.”

Said Walsh: “Because [the conspirators] . . . feared that Congress would stop them if it knew of their activities . . . they deceived Congress . . . By so doing the conspirators obstructed Congress' legitimate functions of regulating governmental expenditures and overseeing foreign covert action.”
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A similar conspiracy grew inside the Bush White House, one designed to obstruct, deceive, and conceal: to obstruct the legitimate function of Congress with respect to the initiation and funding of a war; to deceive those who might disagree with launching a war in Iraq and might try to stop them; and to conceal their behavior.

 

Do the actions by President Bush and others inside his administration permit a prosecution under Section 371 of the federal criminal code? A conspiracy under the law involves two or more people acting in concert to try to accomplish an unlawful plan. Members of the Bush administration, including the president, worked together to strategize on a plan—based on a series of deceits—to “sell” the war. While government officials are expected to work together, they are not expected to deceive together. Elizabeth de la Vega, a prosecutor who has carefully studied this topic, wrote in a 2005 article in the
Nation
that, in such situations, “[a] pattern of double-dealing proves a criminal conspiracy.”
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Among those who “acted in concert” with President Bush and Vice President Cheney, were Defense Secretary Donald Rumsfeld, Deputy Secretary of Defense Paul Wolfowitz, Secretary of State Colin Powell, National Security Advisor Condoleezza Rice, deputy national security advisor Stephen Hadley, co-chair of the White House Iraq Group Karl Rove, special presidential advisor I. Lewis “Scooter” Libby, and a host of other individuals who worked for the White House. A prosecutor will easily be able to meet the element in the law of identifying two or more people who formed the conspiracy.

Section 371 refers to “defrauding,” which is defined in the statute as “deceit, craft, trickery or dishonest means.” The conspirators in this case used all of those methods—and more—to characterize Iraq as a threat to the United States. As de la Vega noted in her 2005
Nation
article, “When
they chose to overcome anticipated or actual opposition to their plan by concealing information and lying, they began a conspiracy to defraud.”

Defrauding can clearly be shown by a prosecutor.

The president and his team, after deceiving the Congress into authorizing a war in Iraq, continued their pattern of concealment and fraud for years. They made a concerted effort to cover up the false statements in the president's State of the Union address, including attacks on former ambassador Joseph Wilson when he challenged the truthfulness of the claims about attempted uranium purchases by Iraq. E-mail records in the critical war period that could have shown the trail of information and authorization—these records are required by law to be archived and retained—were lost or disappeared, according to the Citizens for Responsibility and Ethics in Washington, a nonprofit think tank and advocacy organization that was still fighting for their release in 2011.
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