Watergate II : The Nation : White House Criminal Conspiracy


Richard Moore


 The White House Criminal Conspiracy 
By Elizabeth de la Vega 
Tom Dispatch 
from: The Nation - current 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% 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

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

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

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

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

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

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

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

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
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.

This is the cover story of the November 14 issue of the
Nation magazine just now appearing on the newsstands.



"Apocalypse Now and the Brave New World"

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