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SUPERB: "The White House Criminal Conspiracy," by Elizabeth de la Vega

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  • Supreme Law Firm
    http://www.thenation.com/doc/20051114/delavega The White House Criminal Conspiracy by ELIZABETH DE LA VEGA www.thenation.com [from the November 14, 2005 issue]
    Message 1 of 1 , Oct 31, 2005

      The White House Criminal Conspiracy



      [from the November 14, 2005 issue]

      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

      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 percent 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 percent 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

      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, suitable only for centrifuges,
      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

      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 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.



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