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by
John Dean
July
28, 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 weapons
of mass destruction (WMD) posed an imminent threat was his primary argument in
favor of war.
Now,
as more and more time passes with WMD 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 of 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 WMD.
Obviously I do not have access to the classified information the president
doubtlessly 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.
In
his State of the Union, Bush repeatedly 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 the
purported WMDs have 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 U.N.
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 U.N. Special Commission concluded that Iraq did not verifiably
account for, at a minimum, 2160 kg 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 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] U.N.
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.
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 doubled 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 were 15,000 -- 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 was 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 16-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 to be 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
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 the 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.
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.
John Dean is the former
White House counsel for President Richard Nixon and author of The Rehnquist
Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme
Court. This commentary first appeared on FindLaw.com (www.findlaw.com) on July 18, 2003.