Why A Special
Prosecutor's Investigation Is Needed
FindLaw
John Dean
Friday, Jul. 18, 2003
The heart of President Bush's January 28 State of the Union
address was his case for going to war against Saddam Hussein. In
making his case, the President laid out fact after fact about
Saddam's alleged unconventional weapons. Indeed, the claim that
these WMDs posed an imminent threat was his primary argument in
favor of war.
Now, as more and more time passes with WMDs still not found,
it seems that some of those facts may not have been true. In
particular, recent controversy has focused on the President's
citations to British intelligence purportedly showing that Saddam
was seeking "significant quantities of uranium from Africa."
In this column, I will examine the publicly available evidence
relating to this and other statements in the State of the Union
concerning Saddam's WMDs. Obviously, I do not have access to the
classified information the President doubtless relied upon. But
much of the relevant information he drew from appears to have
been declassified, and made available for inquiring minds.
What I found, in critically examining Bush's evidence, is not
pretty. The African uranium matter is merely indicative of larger
problems, and troubling questions of potential and widespread
criminality when taking the nation to war. It appears that not
only the Niger uranium hoax, but most everything else that Bush
said about Saddam Hussein's weapons was false, fabricated,
exaggerated, or phony.
Bush repeatedly, in his State of the Union, presented beliefs,
estimates, and educated guesses as established fact. Genuine
facts are truths that can be known or are observable, and the
distance between fact and belief is uncertainty, which can be
infinite. Authentic facts are not based on hopes or wishes or
even probabilities. Now it is little wonder that none of these
purported WMDs has been discovered in Iraq.
So egregious and serious are Bush's misrepresentations that
they appear to be a deliberate effort to mislead Congress and the
public. So arrogant and secretive is the Bush White House that
only a special prosecutor can effectively answer and address
these troubling matters. Since the Independent Counsel statute
has expired, the burden is on President Bush to appoint a special
prosecutor - and if he fails to do so, he should be held
accountable by Congress and the public.
In making this observation, I realize that some Republicans
will pound the patriotism drum, claiming that anyone who
questions Bush's call to arms is politicizing the Iraqi war. But
I have no interest in partisan politics, only good government -
which is in serious trouble when we stop debating these issues,
or absurdly accuse those who do of treason.
As Ohio's Republican Senator Robert A. Taft, a man whose
patriotism cannot be questioned, remarked less than two weeks
after Pearl Harbor, "[C]riticism in time of war is essential to
the maintenance of any kind of democratic government.... [T]he
maintenance of the right of criticism in the long run will do the
country ... more good than it will do the enemy [who might draw
comfort from it], and it will prevent mistakes which might
otherwise occur." (Emphasis added.)
It is in that sprit that I address Bush's troubling
assertions.
A Closer Look At Bush's Facts in the State of the Union
Bush offered eight purported facts as the gist of his case for
war. It appears he presented what was believed to be the
strongest evidence first:
Purported Bush Fact 1: "The United Nations concluded in 1999
that Saddam Hussein had biological weapons materials sufficient
to produce over 25,000 liters of anthrax - enough doses to kill
several million people. He hasn't accounted for that material. He
has given no evidence that he has destroyed it. "
Source: Bush cites the United Nations Special Commission
[UNSCOM] 1999 Report to the UN Security Council. But most all the
Report's numbers are estimates, in which UNSCOM had varying
degrees of confidence.
In addition, UNSCOM did not specifically make the claim that
Bush attributes to it. Instead, the Report only mentions
precursor materials ("growth media") that might be used to
develop anthrax. One must make a number of additional assumptions
to produce the "over 25,000 liters of anthrax" the President
claimed.
Earlier the same month, in a January 23 document, the State
Department, similarly cited the UNSCOM report, although
noticeably more accurately than the President: "The UN Special
Commission concluded that Iraq did not verifiably account for, at
a minimum, 2160kg of growth media. This is enough to produce
26,000 liters of anthrax.." (Emphasis added.) State does not
explain how it projected a thousand liters more than the
president.
And two days after the State of the Union, in testimony before
the Senate Foreign Relations Committee, Deputy Secretary of State
Richard L. Armitage addressed the UNSCOM estimates in a more
truthful light: as a reference to the" biological agent that U.N.
inspectors believe Iraq produced." (Emphasis added.)
It short, in the State of the Union, the president transformed
UNSCOM estimates, guesses, and approximations into a declaration
of an exact amounts, which is a deception. He did the same with
his statement about Botulinum toxin.
Purported Bush Fact 2: "The Union Nations concluded that
Saddam Hussein had materials sufficient to produce more than
38,000 liters of botulinum toxin - enough to subject millions of
people to death by respiratory failure. He hasn't accounted for
that material. He has given no evidence that he has destroyed
it."
Source: Bush cited the same UNSCOM Report. Again, he
transformed estimates, or best guesses - based on the work of the
UNSCOM inspectors and informants of uncertain reliability - into
solid fact.
His own State Department more accurately referred to the same
information as "belief," not fact: "Iraq declared 19,000 liters
(of Botulinum toxin) [but the] UN believes it could have produced
more than double that amount." (Emphasis added.)
Purported Bush Fact 3: "Our intelligence sources estimate that
Saddam Hussein had the materials to produce as much as 500 tons
of sarin, mustard, and VX nerve agent. In such quantities, these
chemical agents also could kill untold thousands. He has not
accounted for these materials."
Source: Here, at least Bush admits that he is drawing upon
estimates - but this time, he leaves out other qualifiers that
would have signaled the uncertainty his own "intelligence
sources" felt about these purported facts. (Emphasis added.)
In October 2002, a CIA report claimed that Iraq "has begun
renewed production of chemical warfare agents, probably including
mustard, sarin, cyclosarin, and VX." Bush omitted the "probably."
The CIA also added still more caveats: "More than 10 years after
the Gulf war, gaps in Iraqi accounting and current production
capabilities strongly suggest that Iraq maintains a stockpile of
chemical agents, probably VX, sarin, cyclosarin, and mustard."
(Emphases added.)
Bush, his speechwriters, and his advisers left all these
caveats out. How could they have? Did they not think anyone would
notice the deceptions?
Purported Bush Fact 4: "U.S. intelligence indicates that
Saddam Hussein had upwards of 30,000 munitions capable of
delivering chemical agents. Inspectors recently turned up 16 of
them, despite Iraq's recent declaration denying their existence.
Saddam Hussein has not accounted for the remaining 29,984 of
these prohibited munitions. He has given no evidence that he has
destroyed them."
Source: Bush cites "U.S. intelligence" for this information,
but it appears to have first come from UNSCOM. If so, he seems to
have double the number of existing munitions that might be, as he
argued "capable of delivering chemical agents."
UNSCOM's report, in its declassified portions, suggests that
UNSCOM "supervised the destruction of nearly 40,000 Chemical
munitions (including rockets, artillery, and Aerial bombs 28,000
of which were filled)." And UNSCOM's best estimate was that there
were15,000 - not 30,000 - artillery shells unaccounted for.
The CIA's October 2002 report also acknowledges that "UNSCOM
supervised the destruction of more than 40,000 chemical
munitions." Yet none of its declassified documents support Bush's
contention in the State of the Union that 30,000 munitions
capable of delivering chemical weapons remain unaccounted
for.
Where did Bush's number come from? Was it real - or
invented?
Purported Bush Fact 5: "From three Iraqi defectors we know
that Iraq, in the late 1990s, had several mobile biological
weapons labs. These are designed to produce germ warfare agents,
and can be moved from place to place to evade inspectors. Saddam
Hussein has not disclosed these facilities. He has given no
evidence that he has destroyed them."
Source: The three informants have still not been identified -
even though the Administration now has the opportunity to offer
asylum to them and their families, and then to disclose their
identities, or at least enough identifying information for the
public to know that they actually exist, and see why the
government was prone to believe them.
Moreover, there is serious controversy as to whether the
mobile weapons labs have been found. After the war, the CIA
vigorously claimed two such labs had been located. But Iraqi
scientists say the labs' purpose were to produce hydrogen for
weather balloons. And many months later, no other Iraqi
scientists - or others with reason to know - have been found to
contradict their claims. Meanwhile, the State Department has
publicly disputed the CIA (and DIA) claim that such weapons labs
have been found.
All informant intelligence is questionable. Based on this
intelligence, the President should have said that "we believe"
that such labs existed - not that "we know" that they do.
"Belief" opens up the possibility we could be wrong; claimed
"knowledge" does not.
As with his other State of the Union statements, the President
presented belief as fact, and projected a certainty that seems to
have been entirely unjustified - a certainty on the basis of
which many Americans, trusting their President, supported the
war.
Purported Bush Fact 6: "The International Atomic Energy Agency
confirmed in the 1990s that Saddam Hussein had an advanced
nuclear weapons development program, had a design for a nuclear
weapon and was working on five different methods of enriching
uranium for a bomb."
Source: The IAEA did provide some information to this effect,
but the IAEA's own source was Iraq itself. According to Garry B.
Dillon, the 1997-99 head of IAEA's Iraq inspection team, Iraq was
begrudgingly cooperating with UNSCOM and IAEA inspections until
August 1998.
Moreover, a crucial qualifier was left out: Whatever the
program looked like in the early or mid-1990s, by 1998, the IAEA
was confident it was utterly ineffective.
As the IAEA's Dillon further reports, as of 1998, "there were
no indications of Iraq having achieved its program goals of
producing a nuclear weapon; nor were there any indications that
there remained in Iraq any physical capability for production of
amounts of weapon-usable nuclear material of any practical
significance." (Emphases added)
Later, IAEA's own January 20, 2003 Update Report to the UN's
Security Council reiterated the very same information Dillon had
reported.
It is deceptive to report Iraq's 1990's effort at a nuclear
program without also reporting that - according to a highly
reliable source, the IAEA - that attempt had come to nothing as
of 1998. It is even more deceptive to leave this information out
and then to go on - as Bush did - to suggest that Iraq's
purportedly successful nuclear program was now searching for
uranium, implying it was operational when it was not.
In making this claim, Bush included his now discredited
sixteen word claim.
Purported Bush Fact 7: "The British government has learned
Saddam Hussein recently sought significant quantities of uranium
from Africa."
Source: Media accounts have shown that the uranium story was
untrue - and that at least some in the Bush Administration knew
it. I will not reiterate all of the relevant news reports here,
but I will highlight a few.
The vice president's office had questions about the Niger
uranium story. Ambassador Wilson was dispatched to learn the
truth and found it was counterfeit information. Wilson advised
the CIA and State Department that the Niger documents were
forgeries, and presumably the vice president learned these
facts.
The Niger uranium story was reportedly removed from Bush's
prior, October 7, 2002 speech because it was believed unreliable
- and it certainly became no more reliable thereafter. Indeed,
only days after Bush's State of the Union, Colin Powell refused
to use the information in his United Nation's speech because he
did not believe it reliable.
Either Bush's senior advisers were aware of this hoax, or
there was a frightening breakdown at the National Security
Council - which is designed to avoid such breakdowns. Neither
should be the case.
In fact, it is unconscionable, under the circumstances, that
the uranium fabrication was included in the State of the Union.
And equally weak, if not also fake, was Bush's final point about
Saddam's unconventional weapons.
Purported Bush Fact 8: "Our intelligence sources tell us that
[Saddam Hussein] has attempted to purchase high strength aluminum
tubes suitable for nuclear weapons production."
Source: Bush is apparently referring to the CIA's October 2002
report - but again, qualifiers were left out, to transform a
statement of belief into one of purported fact.
The CIA report stated that "Iraq's aggressive attempts to
obtain proscribed high-strength aluminum tubes are of significant
concern.All intelligence experts agree that Iraq is seeking
nuclear weapons and that these tubes could be used in a
centrifuge enrichment program.Most intelligence specialists
assess this to be the intended use, but some believe that these
tubes are probably intended for conventional weapons programs."
(Emphases added).
By January 20, 2003 the IAEA - which has more expertise than
the CIA in the matter - had completed its investigation in Iraq
of the aluminum tubes. It concluded that, as the Iraqi government
claimed, the tubes had nothing to do with nuclear weapons, rather
they were part of their rocket program.
Thus, eight days before Bush's State of the Union, the IAEA
stated in its report to the Security Council, "The IAEA's
analysis to date indicates that the specifications of the
aluminum tubes recently sought by Iraq appear to be consistent
with reverse engineering of rockets. While it would be possible
to modify such tubes for the manufacture of centrifuges, they are
not directly suitable for such use."
In short, Bush claimed the tubes were "suitable for nuclear
weapons production" when only a week earlier, the IAEA - which
had reason to know - plainly said that they were not. Today, of
course, with no nuclear facilities found, it is clear that the
evidence that the IAEA provided was correct.
Bush's Stonewalling And The Polk Precedent
Bush closed his WMD argument with these words: "Saddam Hussein
has not credibly explained these activities. He clearly has much
to hide." The he added, "The dictator of Iraq is not disarming.
To the contrary, he is deceiving."
Unfortunately, it seems that Bush may have been deceiving,
too. Urgent and unanswered questions surround each of the eight
statements I have set forth. Questions surrounding the uranium
story are only indicative, for similar questions must be asked
about the other statements as well.
But so far, only the uranium claim has been acknowledged as a
statement the president should not have made. Nonetheless, the
White House had been stonewalling countless obvious, and
pressing, questions, such as: When did Bush learn the uranium
story was false, or questionable? Why did he not advise Congress
until forced to do so? Who in the Bush White House continued to
insist on the story's inclusion in the State of the Union
address? Was Vice President Cheney involved? Who got the CIA to
accept the British intelligence report, when they had doubts
about it?
Bush is not the first president to make false statements to
Congress when taking the nation to war. President Polk lied the
nation into war with Mexico so he could acquire California as
part of his Manifest Destiny. It was young Illinois Congressman
Abraham Lincoln who called for a Congressional investigation of
Polk's warmongering.
Lincoln accused Polk of "employing every artifice to work
round, befog, and cover up" the reasons for war with Mexico.
Lincoln said he was "fully convinced, of what I more than suspect
already, that [Polk] is deeply conscious of being wrong." In the
end, after taking the president to task, the House of
Representatives passed a resolution stating that the war with
Mexico had been "unnecessary and unconstitutionally commenced by
the President."
Not unlike Polk, Bush is currently hanging onto a very weak
legal thread - claiming his statement about the Niger uranium was
technically correct because he said he was relying on the British
report. But that makes little difference: if Bush knew the
British statement was likely wrong, then he knowingly made a
false statement to Congress. One can't hide behind a source one
invokes knowing it doesn't hold water.
Because Bush has more problems than his deceptive statement
about Niger uranium, Congressman Lincoln's statement to Polk
echoes through history with particular relevance for Bush: "Let
him answer fully, fairly and candidly. Let him answer with facts
and not with arguments. . . . Let him attempt no evasion, no
equivocation."
It Is A Crime To Make False Statements To Congress
Could Bush, and his aides, be stonewalling because it is a
crime to give false information to Congress? It wasn't a crime in
President Polk's day. Today, it is a felony under the false
statements statute.
This 1934 provision makes it a serious offense to give a false
information to Congress. It is little used, but has been actively
available since 1955. That year, the U.S. Supreme Court ruled in
U.S. v. Bramblet that the statute could be used to prosecute a
Congressman who made a false statement to the Clerk of the
Disbursing Office of the House of Representatives, for Congress
comes under the term "department" as used in the statutes.
Two members of the Bush administration, Admiral John
Poindexter and Elliot Abrams, learned about this false statements
law the hard way, during the Iran Contra investigation. Abrams
pled guilty to two misdemeanors for false statements to Congress,
as did Robert McFarlane. (Both were subsequently pardoned by
President George H.W. Bush.) Poindexter and Oliver North fought
the charges, and won on an unrelated legal technicality.
Later, one of McFarlane's lawyers, Peter W. Morgan, wrote a
law journal article about using the false statements statute to
prosecute executive officials appearing before Congress. Morgan
was troubled by the breadth of the law. It does not require a
specific intent to deceive the Congress. It does not require that
statements be written, or that they be sworn. Congress is aware
of the law's breadth and has chosen not to change it.
Maybe presciently, Morgan noted that the false statements
statute even reaches "misrepresentations in a president's state
of the union address." To which I would add, a criminal
conspiracy to mislead Congress, which involved others at the Bush
White House, could also be prosecuted under a separate statute,
which makes it a felony to conspire to defraud the
government.
Need for A Special Prosecutor To Investigate the WMD
Claims
There is an unsavory stench about Bush's claims to the
Congress, and nation, about Saddam Hussein's WMD threat. The
deceptions are too apparent. There are simply too many unanswered
questions, which have been growing daily. If the Independent
Counsel law were still in existence, this situation would justify
the appointment of an Independent Counsel.
Because that law has expired, if President Bush truly has
nothing to hide, he should appoint a special prosecutor. After
all, Presidents Nixon and Clinton, when not subject to the
Independent Counsel law, appointed special prosecutors to
investigate matters much less serious. If President Bush is truly
the square shooter he portrays himself to be, he should appoint a
special prosecutor to undertake an investigation.
Ideally, the investigation ought to be concluded - and the
issue cleared up - well before the 2004 election, so voters know
the character of the men (and women) they may or may not be
re-electing.
Family, loved ones, and friends of those who have died, and
continue to die, in Iraq deserve no less.
John W. Dean, a FindLaw columnist, is a former counsel to
the President. The author thanks Richard Leone for the quote from
Senator Taft, which is drawn from his newly-released work The War
On Our Freedoms. He also thanks Professor Stanley I. Kutler for
the quote of Congressman Lincoln demanding that President Polk
answer without evasion or equivocation.
|