Table of
Contents
Introduction
by Rep. John Conyers, Jr. 1
A. Chronology: Last Throes of
Credibility. 8
1.
Determination to go to War before Congressional Authorization. 13
a. Avenging the Father and
Working with the Neo-Cons 14
b. September 11 and its
Aftermath: Beating the Drums for
War 16
c. The Downing Street Minutes and
Documentary Evidence of an Agreement to go to War 22
i. Description and Analysis of Various
Downing Street Minutes
Materials 23
ii.
Confirmation and Corroboration of Downing Street Minutes Materials 28
d. Manipulating Public Opinion. 32
e. Using the United Nations as a
Pretext for War 39
2. Misstating and Manipulating the Intelligence
to Justify Pre-emptive War 45
a.
Links to September 11 and al Qaeda. 51
i. General Linkages
Between Iraq and al Qaeda. 53
ii. Meeting Between Mohammed
Atta and Iraqi Officials 57
iii. Iraq Training al Qaeda Members to
Use Chemical and Biological
Weapons 57
b. Resumed Efforts to Acquire Nuclear
Weapons 58
ii. Claims Regarding
Hussein=s
Son-in-Law. 61
iii. Statement that Iraq Was Six Months
from Obtaining a Nuclear Weapon. 62
d.
Acquisition of Uranium from Niger 70
e.
Chemical and Biological Weapons 75
i. General Assertions Regarding
Chemical and Biological
Weapons 78
ii. Assertions Regarding Buried Chemical and
Other Weapons 79
iii. Assertions Regarding Mobile Biological
Weapons 80
iv. Unmanned Aerial Vehicles 82
3. Encouraging and Countenancing Torture and
Cruel, Inhuman and
a.
Documented Instances of Torture and Other Legal Violations 83
ii. Cruel, Inhuman and Degrading
Treatment 86
iii. Other Possible Violations of
International Treaties 86
b. Bush Administration Responsibility for
Torture and Other Legal
Violations 88
4.
Cover-ups and Retribution. 96
a. The Niger Forgeries and the ASlimming@ of Ambassador Wilson and his
Family 96
ii. Retribution and Damage. 99
iii. Delays, Conflicts, and More Lies 101
b.
Other Instances of Bush Administration Retribution Against its
Critics 103
i. Former General Eric Shinseki and Others in
the Military. 104
ii. Former Secretary of Treasury Paul
O=Neill and Economic Adviser Lawrence
Lindsey. 105
vii. Bunnatine Greenhouse. 111
viii.
The Central Intelligence Agency and its
Employees 112
c. Ongoing Lies, Deceptions and
Manipulations 114
i. Efficacy of the Occupation. 114
ii. Cost of the War and Occupation. 118
iii. Ongoing Deceptions Regarding Weapons of Mass
Destruction and the
Decision to Go to War 119
iv. Impact of the Iraq War on
Terrorism. 123
a. Determination to Go to War Without
Congressional Authorization. 123
b. Manipulation of the Intelligence to
Justify the War 125
c. Encouraging and Countenancing
Torture. 127
d. Post-War Cover-Ups and Retribution and
More Deceptions 129
A. Chronology: Democracy Without Checks and
Balances 132
i. September 11 Use of Force
Resolution. 139
ii. Inherent Authority as
Commander-In-Chief 141
iv. NSA Domestic Database Program. 145
v. Additional Non-Legal
Justifications 147
vi. Intelligence Briefings In Violation of
the National Security Act 150
2. Continued Stonewalling of Congress and
the American People. 165
Introduction
by Rep. John Conyers, Jr.
Scandals such as Watergate and Iran-Contra
are widely considered to be constitutional crises. They were in the sense that the
executive branch was acting in violation of the law and in tension with the
Majority Party in the Congress. But
the system of checks and balances put in place by the founding fathers worked,
the abuses were investigated, and actions were taken – even if presidential
pardons ultimately prevented a full measure of justice.
The situation we find ourselves in today
under the administration of George W. Bush is systemically different. The alleged acts of wrongdoing my staff
has documented– which include making misleading statements about the decision to
go to war; manipulating intelligence; facilitating and countenancing torture;
using classified information to out a CIA agent; and violating federal
surveillance and privacy laws – are quite serious. However, the current Majority Party has
shown little inclination to engage in basic oversight, let alone question the
Administration directly. The media,
though showing some signs of aggressiveness as of late, is increasingly
concentrated and all too often unwilling to risk the enmity or legal challenge
from the party in charge. At the
same time, unlike previous threats to civil liberties posed by the Civil War
(suspension of habeas corpus and eviction of the Jews from portions of the
Southern States); World War I (anti-immigrant “Palmer Raids”); World War II
(internment of Japanese Americans); and the Vietnam War (COINTELPRO); the risks
to our citizens’ rights today are potentially more grave, as the war on terror
has no specific end point.
Although on occasion the courts are able to
serve as a partial check on the unilateral overreaching of the Executive Branch
– as they did in the recent Hamdan v.
Rumsfeld decision invalidating the President’s military tribunal rules – the
unfortunate reality remains that we are a long way from being out of the
constitutional woods under the dangerous combination of an imperial Bush
presidency and a compliant GOP Congress.
I say this for several reasons.
The Hamdan decision itself was
approved by only five Justices (three Justices dissented, and Chief Justice
Roberts recused himself because he had previously ruled in favor of the
Administration) and was written by 86-year old Justice Stevens. In the event of
his retirement in the next two years, the Court’s balance would likely be tipped
back as he would undoubtedly be replaced by another Justice in the
Scalia-Thomas-Roberts-Alito mode favoring an all-powerful “unitary”
executive. In the very first
hearing held on the decision, the Administration witness testified that “the
president is always right” and severely chastised the Court’s decision.
The Republican Majority also appears
poised to use the decision to score political points rather than reassert
Congressional prerogatives, as House Majority Leader Boehner disingenuously
declared the case “offers a clear choice between Capitol Hill Democrats who
celebrate offering special privileges to violent terrorists, and Republicans who
want the President to have the necessary tools to prosecute and achieve victory
in the Global War on Terror.”
Thus, notwithstanding the eloquence of the
Hamdan decision, I believe our Constitution remains in crisis. We cannot count on a single judicial
decision to reclaim the rule of law or resurrect the system of checks and
balances envisioned by the founding fathers. Rather, we need to restore a vigilant
Congress, an independent judiciary, a law-abiding president, and a vigorous free
press that has served our Nation so well throughout our history.
Because of the above concerns, I asked my
Judiciary Committee staff to prepare the following Report. I made this request in the wake of
President Bush’s failure to respond to a letter submitted by 122 Members of
Congress and more than 500,000 Americans in July of 2005 asking him whether the
assertions set forth in the so-called “Downing Street Minutes” were accurate,
and in the aftermath of the disclosure by The New York Times in December
2005 and USA Today in May 2006 that the President had approved widespread
warrantless domestic surveillance of innocent Americans. I asked for this Report to be prepared
because I believe it is vital that we document these allegations, learn from our
mistakes, and consider laws and safeguards necessary to prevent their
recurrence.
I believe it is essential that we come
together as a Nation to confront religious extremism and despicable regimes
abroad as well as terrorist tactics at home. However, as a veteran, I recognize that
we do no service to our brave armed forces by asking them to engage in military
conflict under false pretenses and without adequate resources. Nor do we advance the cause of fighting
terrorism if our government takes constitutionally dubious short cuts of little
law enforcement value that alienate the very groups in this country whose
cooperation is central to fighting this seminal battle.
Many of us remember a time when the powers
of our government were horribly abused.
Those of us who lived through
It is tragic that our Nation has invaded
another sovereign nation because “the intelligence and facts were being fixed
around the policy,” and that millions of innocent Americans have been subject to
government surveillance outside of proper legal process. However, it is unforgivable that
Congress has been unwilling to examine these matters or take actions to prevent
these circumstances from occurring again.
Since the Majority Party is unwilling to fulfill their oversight
responsibilities, it is incumbent on individual Members of Congress as well as
the American public to act to protect our constitutional form of
government. It is with that purpose
and in that spirit that I am releasing this Minority
Report.
I would like to thank the “blogosphere” for
its myriad and invaluable contributions to my and my staff. Absent the assistance of “blogs” and
other Internet-based media, it would have been impossible to assemble all of the
information, sources and other materials necessary to the preparation of this
Report. Whereas the so-called
“mainstream media” has frequently been willing to look past the abuses of the
Bush Administration, the blogosophere has proven to be a new and important
bulwark of our Nation’s first amendment freedoms.
This Minority Report has been produced at
the direction of Representative John Conyers, Jr., Ranking Member of the House
Judiciary Committee. The Report is
divided into two principal parts – Part I, released in draft form in December,
2005, concerns “The Downing Street Minutes and Deception Manipulation, Torture,
Retribution, and Cover-ups in the Iraq War;” and Part II, released in June 2006,
concerns “Unlawful Domestic Surveillance and Related Civil Liberties Abuses
under the Administration of George W. Bush.” (At the conclusion, we include an
Addendum including additional matters which have come to light since Part I of
the Report was issued in December, 2005 and Part II was written in May,
2006).
In preparing this Report we reviewed tens of
thousands of documents and materials, including testimony submitted at two
hearings held by Rep. Conyers concerning the Downing Street Minutes and
warrantless domestic surveillance; hundreds of media reports, articles, and
books, including interviews with past and present Administration employees and
other confidential sources; scores of government and non-profit reports,
hearings, and analyses; numerous letters and materials submitted to Rep.
Conyers; staff interviews; relevant laws, cases, regulations, and administrative
guidelines; and the Administration’s own words and
statements.
In brief, we have found that there is
substantial evidence the President, the Vice-President and other high ranking
members of the Bush Administration misled Congress and the American people
regarding the decision to go to war in Iraq; misstated and manipulated
intelligence information regarding the justification for such war; countenanced
torture and cruel, inhuman and degrading treatment in Iraq; permitted
inappropriate retaliation against critics of their Administration; and approved
domestic surveillance that is both illegal and unconstitutional. As further detailed in the Report, there
is evidence that these actions violate a number of federal laws,
including:
·
Making
False Statements to Congress, for example, saying you have learned
·
The War
Powers Resolution and Misuse of Government Funds, for example, redeploying
troops and initiating bombing raids before receiving congressional
authorization.
·
Federal
laws and international treaties prohibiting torture and cruel, inhuman, and
degrading treatment, for example, ordering detainees to be ghosted and removed,
and tolerating and laying the legal ground work for their torture and
mistreatment.
·
Federal
laws concerning retaliating against witnesses and other individuals, for
example, demoting Bunnatine Greenhouse, the chief contracting officer at the
Army Corps of Engineers, because she exposed contracting abuses involving
Halliburton.
·
Federal
requirements concerning leaking and other misuse of intelligence, for example,
failing to enforce the executive order requiring disciplining those who leak
classified information, whether intentional or not.
·
Federal
regulations and ethical requirements governing conflicts of interest, for
example, then Attorney General John Aschcroft’s being personally briefed on FBI
interviews concerning possible misconduct by Karl Rove even though Mr. Rove had
previously received nearly $750,000 in fees for political work on Mr. Ashcroft’s
campaigns.
·
Violating FISA and the Fourth Amendment, for
example intercepting thousands of communications “to or from any person within
the
·
The
Stored Communications Act of 1986 and the Communications Act of 1934, for
example, obtaining millions of
·
The
National Security Act, for example, failing to keep all Members of the House and
Senate Intelligence Committees “fully and currently informed” of intelligence
activities, such as the warrantless surveillance programs.
With regard to the NSA’s domestic
surveillance programs, we have also found that members of the Bush
Administration made a number of misleading statements regarding its operation
and scope; the legal justifications proffered by the Bush Administration are
constitutionally destabilizing; there is little evidence the programs have been
beneficial in combating terrorism and may have affirmatively placed terrorism
prosecutions at risk; and the programs appear to have designed and implemented
in a manner designed to stifle legitimate concerns.
The Report rejects the frequent contention
by the Bush Administration that their pre-war conduct has been reviewed and they
have been exonerated. No entity has
ever considered whether the Administration misled Americans about the decision
to go to war. The Senate Intelligence Committee has not yet conducted a review
of pre-war intelligence distortion and manipulation, while the presidentially
appointed Silberman-Robb Commission Report specifically cautioned that
intelligence manipulation “was not part of our inquiry.” There has also not been any independent
inquiry concerning torture and other legal violations in
There also has been no independent review of
the circumstances surrounding the Bush Administration’s domestic spying
scandals. The Administration
summarily rejected all requests for special counsels, as well as reviews by the
Department of Justice and Department of Defense Inspector Generals. When the DOJ Office of Professional
Responsibility opened an investigation, the Bush Administration effectively
squashed it by denying the investigators security clearances. Neither the House nor Senate
Intelligence Committee have undertaken any sort of comprehensive investigation,
and the Bush Administration has sought to cut off any court review of the NSA
programs by repeatedly invoking the state secrets
doctrine.
As a result of our findings, we have made a
number of recommendations to help prevent the recurrence of these events in the
future, including:
·
obtaining enhanced investigatory authority
to access documentary information and testimony regarding the various
allegations set forth in this Report.
·
reaffirming that FISA and the criminal code
contain the exclusive means for conducting domestic warrantless surveillance
and, to the extent that more personnel are needed to process FISA requests,
increasing available resources.
·
requiring the President to report on the
pardon of any former or current officials who could implicate the President or
other Administration officials implicated by pending
investigations.
·
requiring the President to notify Congress
upon the declassification of intelligence information.
·
providing for enhanced protection for
national security whistle-blowers.
·
strengthening the authority of the Privacy
and Civil Liberties Oversight Board.
We also make a number of additional
recommendations within the jurisdiction of the House Judiciary Committee to help
respond to the ongoing threat of terrorism, including:
·
increasing funding and resources for local
law enforcement and first responders and insuring that anti-terrorism funds are
distributed based on risk, not politics.
·
implementing the 9-11 Commission
Recommendations, including providing for enhanced port, infrastructure, and
chemical plant security and ensuring that all loose nuclear materials are
secured.
·
banning
corporate trade with state sponsors of terrorism and eliminating sovereign
immunity protections for state sponsors of terrorism.
·
enhancing laws against wartime
fraud.
I. The Downing
Street Minutes and Deception, Manipulation, Torture, Retribution and Coverups in
the
A. Chronology: Last Throes
of Credibility
ABut I think the level of activity that we
see today, from a military standpoint, I think will clearly decline. I think
they're in the last throes, if you will, of the
insurgency.@
-----May 30, 2005, Vice President Dick
Cheney=s Remarks on the Iraqi insurgency, Larry
King Live[1]
The 2000 Presidential election focused on
many issues relating to domestic and foreign policy.[2] However, the topic of
In the aftermath of the September 11
attacks, the Bush Administration began to hint at the coming attack on
At the same time, the President=s public statements indicated a reluctance
to use military force in
Shortly thereafter, the Administration began
making more alarming and sensational claims about the danger posed to the United
States by Iraq including in a September 12, 2002 address to the United Nations,
and began to press forward publicly with preparations for war.[10] In the days following the
President=s speech to the United Nations,
As the Congressional vote to authorize force
against
The President=s focus then moved on to the United Nations
in an effort to persuade the UN to approve renewed weapons inspections in
On January 27, 2003, the International
Atomic Energy Agency (IAEA) indicated that the Bush Administration=s claim that aluminum tubes being delivered
to
On February 5, 2003, Secretary of State
Colin Powell took the Bush Administration=s case to the United Nations Security
Council. In a presentation to the
United Nations, Secretary Powell charged, among other things, that
On March 18, 2003, the President submitted a
letter to the Speaker of the House of Representatives and the President Pro
Tempore of the Senate informing the Congress of his determination that
diplomatic and peaceful means alone would not protect the Nation or lead to
Iraqi compliance with United Nations demands.[22] On March 20, the President launched the
preemptive invasion.
A little more than a month into the
invasion, President Bush landed aboard the USS Abraham Lincoln and, standing
beneath a massive banner reading "Mission Accomplished,@ he stated, AMajor combat operations in
Another significant problem for the Bush
Administration was its failure to find any of the WMD that it had used to
justify the invasion. On July 6,
2003, Ambassador Joseph Wilson, who was sent to
Amid these admissions that the case for war
was, generously speaking, faulty, the Administration and Congressional
Republicans sought to pre-empt inquiries into the White House use or
manipulation of intelligence by launching more limited investigations. On February 6, 2004, President Bush
created the Robb-Silberman Commission, which later found that the intelligence
community was Adead wrong in almost all of its pre-war
judgments about
On March 16, 2004, the Democratic staff of
the U.S. House Committee on Government Reform submitted a report to Ranking
Member Henry A. Waxman.[32] This report, entitled A
On July 7, 2004, the Senate Select Committee
on Intelligence reported that it had found numerous failures in the
intelligence-gathering and analysis process.[34] However, that review also was explicitly
not intended to look into the Administration=s use of that wrong intelligence in selling
the war.[35] To date, there has never been a truly
independent, comprehensive non-partisan or bipartisan review of the
Administration=s false claims regarding WMD or any other
aspect of the war.[36]
On April 28, 2004, 60 Minutes II made
public a series of photos taken at the Abu Ghraib prison in Iraq documenting
apparent torture and other cruel, inhuman, and degrading treatment by U.S.
military and other personnel.[37] Since then, reports of other alleged
violations of international law involving Iraqi prisoners have been reported by
the media and human rights organizations.[38]
As the war continued into 2005, with
While evidence and accounts of
Administration insiders strongly suggested a predetermination to go to war and a
manipulation of intelligence to justify it, that evidence and those accounts
were attacked by Administration officials as inaccurate or biased. Then, on May 1, 2005, the Sunday
London Times published the first of a series of important documents known as
the ADowning Street Minutes.@[40]
The Downing Street Minutes (DSM) are a collection of classified
documents, written by senior British officials during the spring and summer of
2002, which recounted meetings and discussions of such officials with their
American counterparts. The focus of
these meetings and discussions was the
The DSM generated significant media coverage
in
On June 16, 2005, Congressman Conyers and 32
Members of Congress convened an historic hearing on the Downing Street Minutes,
covered by numerous press outlets.
The hearing was forced to a cramped room in the basement of the Capitol
since Democrats were denied ordinary hearing room space by the Republican
leadership. The Republicans tried
to disrupt the hearings further by holding 12 consecutive floor votes during the
hearing, an unprecedented number.[43] After the hearing, Congressman Conyers
led a congressional delegation to the White House to personally deliver a letter
signed by over 500,000 citizens, demanding answers from the President.[44] To date, the White House has declined to
respond to these questions that were posed by these citizens and their elected
representatives in Congress.
In the meantime, after some initial false
starts, delays, and denials concerning possible misconduct in the Bush
Administration=s Aouting@ of Valerie Plame Wilson,[45]
then-Attorney General John Ashcroft recused himself from the investigation due
to conflicts of interest and, on December 30, 2003, U.S. Attorney Patrick J.
Fitzgerald was appointed to conduct the investigation of the Plame leak.[46] By July 2005, it became apparent that
Karl Rove, a senior aide to the President, was involved in the leak; a
Time reporter=s notes revealed that he had spoken to Karl
Rove about the case.[47] Then, on July 18, 2005, President Bush
conspicuously changed the standard for White House ethics from stating that he
would fire anyone who leaked the information to firing someone only if he or she
Acommitted a crime.@[48]
With a lack of response from the Administration or from congressional
Republicans, on July 22, 2005, Congressman Henry Waxman and Senator Byron
Dorgan conducted a joint Democratic hearing on the ANational Security Consequences of Disclosing
the Identity of a Covert Intelligence Officer.@[49]
Ambassador Wilson was not the only
individual facing apparent retribution from the Bush Administration for
criticizing its conduct. For
example, on August 27, 2005, Bunnatine Greenhouse, the Chief Contracting officer
at the Army Corps of Engineers, was demoted in apparent retaliation for exposing
Pentagon favoritism toward a Halliburton subsidiary in awarding no-bid contracts
in
On October 28, 2005, Vice Presidential Chief
of Staff Scooter Libby resigned after a federal grand jury indicted him on five
charges, totaling a maximum 30-year sentence, related to the leak probe.[51] Patrick Fitzgerald has yet to indict
other individuals but has publicly stated that his investigation would remain
open to consider other matters.[52] On November 1, 2005, after numerous
attempts to open an investigation on the issue, Democrats demanded answers to
the Administration=s use of pre-war intelligence and led the
Senate into a rare closed-door session, finally receiving a promise from the
Republican majority to speed up the process.[53]
Since that time, numerous additional
disclosures have come out calling into question the Bush
Administration=s pre-war veracity concerning WMD
intelligence. On November 6,
Senator Levin disclosed a classified Defense Department document showing that an
al Qaeda prisoner, Iba al Shaykh al-Libi had been identified as a fabricator
months before the Bush Administration used his claims to allege that Iraq had
trained al Qaeda members to use biological and chemical weapons.[54] On November 20, the Los Angeles
Times revealed that German intelligence officials had informed the
Administration that the Iraqi defector known as ACurveball@ was not a reliable source for their mobile
biological weapons charges.[55]
Today, more than half of all Americans
believe the Administration Adeliberately misled@ the public on the reasons for going to
war.[56] The invasion appears to have increased
and emboldened the terrorist movement.[57] As of the date of this Report,
1. Determination to go to War before Congressional Authorization
There are numerous, documented facts now in
the public record that indicate the Bush Administration had made a decision to
go to war before it sought Congressional authorization or informed the American
people of that decision.
Our investigation shows that while the roots
of this decision existed even before George W. Bush was first elected president,
it became a foregone conclusion in the aftermath of the September 11
tragedy. Due to the release of the
so-called ADowning Street Minutes@ materials, we are now able to confirm that
there were agreements between the Bush and Blair governments in the spring and
summer of 2002 to go to war in
Even though the Administration had begun
planning an invasion of
$
September
8, 2002: Vice President Dick Cheney
insists that Afirst
of all, no decision's been made yet to launch a military operation.@[59]
$
September
16, 2002: US Secretary of Defense
Donald Rumsfeld states "The President hasn't made a decision with respect to
$
September 19, 2002: Secretary of State Colin
Powell states, AOf course, the President has not decided on
a military option . . . nobody wants war as a first resort . . . [n]obody is
looking for a war if it can be avoided.@[61]
$
October
1, 2002: The President made the first in a series of statements, AOf course, I haven=t made up my mind we=re going to war with
$
November 7, 2002: AHopefully, we can do this peacefully
C don=t get me wrong. And if the world were to
collectively come together to do so, and to put pressure on Saddam Hussein and
convince him to disarm, there=s a chance he may decide to do that. And war
is not my first choice, don=t C it=s my last choice.@[63]
$
December 4, 2002: AThis is our attempt to work with the world
community to create peace. And the
best way for peace is for Mr. Saddam Hussein to disarm. It=s up to him to make his
decision.@[64]
$
December 31, 2002: AYou said we=re headed to war in
$
January
2, 2003: AFirst of all, you know, I=m hopeful we won=t have to go war, and let=s leave it at that.@[66]
$
March
6, 2003: AI've not made up our mind about military
action.@[67]
$
March
8, 2003: AWe are doing everything we can to avoid war
in
$
March
17, 2003: AShould Saddam Hussein choose confrontation,
the American people can know that every measure has been taken to avoid war, and
every measure will be taken to win it.@[69]
a. Avenging
the Father and Working with the Neo-Cons
AFrom the very beginning, there was a
conviction that Saddam Hussein was a bad person and that he needed to go. It was all about finding a way to do
it. That was the tone of it. The president saying,
>Go find me a way to do
this.=@
-----January 11, 2004, Paul
O=Neill, A60 Minutes@[70]
Our investigation has found, in retrospect,
there were indications even before September 11, 2001 that President Bush
and key members of his Administration were fixated on the military invasion of
A>One of the keys to being seen as a great
leader is to be seen as a commander-in-chief. . . . My father had all this political capital
built up when he drove the Iraqis out of
According to Mr. Herskowitz, George W.
Bush=s beliefs on
In addition to Mr. Bush=s apparent belief that a successful military
invasion could cause him to be seen as a great leader, additional possible
motivations include responding to those right-wing critics who blamed his father
for not entering Baghdad during the first Gulf War,[73]
and achieving revenge for Saddam Hussein=s reported plot to assassinate his
father. Discussing Saddam Hussein,
on September 26, 2002, Bush declared: AAfter all, this is the guy that tried to
kill my dad at one time.@[74]
It is also significant that key members of
the Bush Administration were part of a group of so-called Aneo-conservatives@ or Aneo-cons@ who were dedicated to removing Saddam
Hussein by military force. The
notion of toppling Saddam Hussein and his regime dates as far back as the 1990s,
when it had been a priority of a circle of neo-conservative intellectuals, led
by Richard Perle, a former Assistant Secretary of Defense under President
Reagan, and Paul Wolfowitz, an Undersecretary of Defense for Policy under
President George H.W. Bush.[75] The neocons did not have the power to
effectuate their goals during the Clinton Administration, but they remained tied
to one another and to Dick Cheney through a number of right-wing think tanks and
institutes, including the Project for the New American Century.
On January 26, 1998, the Project for the New
American Century issued a letter to President Bill Clinton explicitly calling
for Athe removal of Saddam Hussein=s regime from power.@[76]
Foretelling of subsequent events, the letter calls for the United States
to go to war alone and attack the United Nations, and instructs that the United
States should not be Acrippled by a misguided insistence on
unanimity in the UN Security Council.@[77]
The letter was signed by 18 individuals; ten of them, including Donald
Rumsfeld and Paul Wolfowitz, became members of the current Bush
Administration. Other
documentary evidence of the neocon vision for an invasion is manifested by the
December 1, 1997 issue of the Weekly Standard, a conservative magazine,
which was headlined by a bold directive: ASaddam Must Go: A How-to Guide.@
Two of the articles were written by current Administration officials,
including Paul Wolfowitz.[78]
In September 2000, a strategy document
commissioned from the Project for the New American Century by Dick Cheney,
argued that A[t]he United States has for decades sought
to play a more permanent role in Gulf regional security. While the unresolved
conflict with Iraq provides the immediate justification, the need for a
substantial American force presence in the Gulf transcends the issue of the
regime of Saddam Hussein.@[79]
There is other evidence from within the
highest levels of Bush=s cabinet of an early fixation on invading
This fixation on war with
b. September
11 and its Aftermath: Beating the
Drums for War
“F*** Saddam. We're taking him
out."
-----March, 2002, President George W. Bush,
poking his head into the
office of National Security Adviser
Condoleezza Rice.[85]
It was the September 11 tragedy that gave
the President and members of his Administration the political opportunity to
invade
Donald Rumsfeld began pushing for
retaliatory attacks against
The very first evidence regarding President
Bush=s inclination to invade
[On September 12th] I left the
This inclination was evidenced to other
senior Republicans as well. For
example, Trent Lott observed in an interview on Meet the Press that
shortly after September 11, the President made clear his intention to go after
Well, beginning in August that year and into
the fall--in fact, beginning not too long after 9/11--as we had leadership
meetings at breakfast with the president, he would go around the world and talk
about what was going on, where the threats were, where the dangers were, and
even in private discussions, it was clear to me that he thought Iraq was a
destabilizing force, was a danger and a growing danger, and that we were going
to have to deal with that problem.[90]
We have also received confirmation of the
Bush Administration=s intention to invade
[T]here was a concerted effort during the
fall of 2001, starting immediately after 9/11 to pin 9/11 and the terrorism
problem on Saddam Hussein. . . . Well, it came from the White House . . . it
came from all over. I got a call on 9/11. I was on CNN, and I got a call at my
home saying, >You got to say this is connected. This is state-sponsored terrorism. This has to be connected to Saddam
Hussein= I said, >ButBI=m willing to say it but what=s your evidence?= And I never got any evidence.[91]
On September 17, 2001, President Bush signed
a 22-page document marked ATOP SECRET@ that outlined the plan for going to war in
“On September 19 and 20, an advisory group
known as the Defense Policy Board met at the Pentagon B with Secretary Rumsfeld in attendance
B and discussed the importance of ousting
Hussein.”[93] According to Administration
sources:
They met in Rumsfeld's conference room.
After a C.I.A. briefing on the 9/11 attacks, Perle introduced two guest
speakers. The first was Bernard Lewis, professor emeritus at
The 9-11 Commission Report further notes
that as early as September 20, 2001, Undersecretary of Defense for Policy,
Douglas Feith, suggested attacking
By late November 2001, the President
essentially instructed Secretary of Defense Donald Rumsfeld to develop an
President Bush, after a National Security
Council meeting, takes Don Rumsfeld aside, collars him physically, and takes him
into a little cubbyhole room and closes the door and says, AWhat have you got in terms of plans for
The evidence of the President=s determination to go to war continues on
through 2002. On January 29, 2002,
President Bush gave his State of the Union address in which he stated that
We have also learned from three sources that
beginning as early as February 2002, the Bush Administration took specific
concrete steps to deploy military troops and assets into
Second, it is clear from Bob
Woodward=s book, APlan of Attack@ that the redeployment began in the summer
of 2002, well before authorized by Congress:
On July 17, Franks updated Rumsfeld on the
preparatory tasks in the region. He carefully listed the cost of each and the
risk to the mission if they didn=t proceed along the timeline which set
completion by December 1. Total cost: about $700 million . . . . Later the
president praised Rumsfeld and Franks for this strategy of moving troops in and
expanding the infrastructure. AIt was, in my judgment,@ Bush said, Aa very smart recommendation by Don and Tommy
to put certain elements in place that could easily be removed and it could be
done so in a way that was quiet so that we didn=t create a lot of noise and anxiety.” . . .
He carefully added, AThe pre-positioning of forces should not be
viewed as a commitment on my part to use military.@ He acknowledged with a terse ARight. Yup.@ that the
In his interview on 60 Minutes, Mr.
Woodward himself points out this was a basic violation of the Constitution: ASome people are gonna look at a document
called the Constitution which says that no money will be drawn from the Treasury
unless appropriated by Congress.@[102]
The funds were diverted from appropriation laws specifically allocated
for the war in
Third, Seymour Hersh of The New
Yorker received similar confirmation from his Administration sources of the
reallocation of intelligence assets from
Further, beginning in February 2002, senior
White House officials were also confirming to the press that military ouster of
Saddam Hussein was inevitable. On
February 13, 2002, Knight Ridder reported that, according to their
sources, APresident Bush has decided to oust Iraqi
leader Saddam Hussein from power and ordered the CIA, the Pentagon and other
agencies to devise a combination of military, diplomatic and covert steps to
achieve that goal, senior
White House officials were also telling
Seymour Hersh that the decision to go to war had been made and that a process to
support that determination had been created:
By early March, 2002, a former White House
official told me, it was understood by many in the White House that the
President had decided, in his own mind, to go to war . . . .
The Bush Administration took many intelligence operations that had been
aimed at Al Qaeda and other terrorist groups around the world and redirected
them to the
Also, in March 2002, President Bush
reportedly poked his head into the office of National Security Adviser
Condoleezza Rice and said AF*** Saddam. We're taking him out.@[107]
At the time, Rice was meeting with three
By late March 2002, Vice President Cheney
was telling his fellow Republicans that a decision to invade
Dick Cheney dropped by a Senate Republican
policy lunch soon after his 10‑day tour of the Middle East ‑ the one meant to
drum up support for a
In his book, Bob Woodward describes Cheney
as a Apowerful, steamrolling force obsessed with
Saddam and taking him out.@[110]
By July of 2002, Condoleezza Rice was
offering further confirmation that President Bush=s mind was made up regarding a decision to
invade
We know that, in early August 2002,
President Bush and Prime Minister Blair spoke by telephone and cemented the
decision to go to war. A White
House official who read the transcript of their conversation disclosed that war
was inevitable by the end of the call.
On August 29, 2002, after three months of war exercises conducted by the
Pentagon, President Bush reportedly approved a document entitled A
Not only is it clear that a decision had
been made to go to war in early 2002, it has also become apparent that the
Bombing activity designed to increase
military pressure on
The step-up in bombing was incredible. In March-April of 2002, there were
hardly any bombs dropped at all.
By the time September came along, several hundred tons of bombs had
been dropped. The war had really
started.[117]
On May 27, 2002, a former US Air Force
combat veteran Tim Goodrich told the World Tribunal on
The
The Asecret air war@ was also confirmed by
c. The
The Downing Street Minutes, which cover a
time period from early March 2002 to July 23, 2002, provide the most
definitive documentary evidence that the Bush Administration had not only made
up its mind to go to war well before it sought congressional authorization, but
that it had an agreement with the British government to do so. Collectively, the documents paint a
picture of US and British officials eager to convince the public that war in
i. Description and Analysis of Various
ABush wanted to remove Saddam, through
military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were
being fixed around the policy.@
AIt seemed clear that Bush had made up his
mind to take military action, even if the timing was not yet
decided. But the case was
thin.@
-----July 23, 2002, The
This paper, prepared by the Office of the
Overseas and Defense Secretariat, is the first of four documents written by
various British authorities to prepare Prime Minister Blair for his early April
trip to Crawford, Texas. The
document includes the seeds of the upcoming war plan by the
Besides summarizing various legal and
political restraints, the paper warns Blair that a Alegal justification for invasion would be
needed. Subject to Law Officers
advice, none currently exists.@[127]
The document also states, "[t]he
In this document, we learn of a nascent plan
that the rejection of United Nations weapons inspectors by
A refusal to admit UN inspectors, or their
admission and subsequent likely frustration, which resulted in an appropriate
finding by the Security Council could provide the justification for military
action. Saddam would try to
prevent this, although he has miscalculated beofre [sic]. . .[129]
This document, the second of four papers
prepared to brief Prime Minister Blair for his upcoming Crawford trip, describes
various legal doctrines believed to be at play with regard to military
intervention in
One analysis of Security Council Resolutions
suggests that, while the British hold the view that Ait is for [the Security] Council to assess
whether any such breach of those obligations has occurred,@ the
David Manning Memo
(March 14, 2002)
This memo was prepared by British national
security advisor David Manning after having dinner with Condoleezza Rice. He observes that Ms. Rice is seen as an
unalloyed advocate of military action against
David Manning advises Prime Minister Tony
Blair that President Bush had yet to find the answers to the Abig@ questions, such as: how to persuade
international opinion that military action against Iraq is necessary and
justified; what value to put on the exiled Iraqi opposition; how to coordinate a
US/allied military campaign with internal opposition (assuming there is any);
what happens on the morning after?[132]
Manning also wrote, A[t]he issue of the weapons inspectors must
be handled in a way that would persuade European and wider opinion that the
Manning also attempted to prepare Blair for
his upcoming trip to Crawford: AI think there is a real risk that the
Administration underestimates the difficulties. They may agree that failure
isn=t an option, but this really does not mean
that they will avoid it.@
The memo went on to say: "Condi's enthusiasm for regime change is
undimmed.@[134]
The Meyer Memo (March
18, 2002)
In this memo from Christopher Meyer, the
British Ambassador in
On
Meyer goes on to note that AWolfowitz said that it was absurd to deny
the link between terrorism and Saddam.@[136]
Meyer told Wolfowitz that Aif the
Mr. Meyer had previously recalled that in
the fall of 2001, Blair told Bush he should not get distracted from the war on
terror. As noted above, Bush
replied, AI agree with you Tony. We must deal with this first. But when we have dealt with
The Ricketts Memo
(March 22, 2002)
Peter Ricketts, the Political Director of
the Foreign and Commonwealth Office, wrote this memo to the U.K. Foreign
Secretary Jack Straw as the third of four documents advising the Prime Minister
on his trip to Crawford. This memo
is an early indication that at least the British were concerned that
unmanipulated intelligence did not provide a strong case for
In the memo, Ricketts expressed relief at
the postponement of the publication of a dossier that detailed the limited state
of
Ricketts offered one final piece of
advice: AThe truth is that what has changed is not
the pace of Saddam Hussein's WMD programmes, but our tolerance of them post-11
September . . . attempts to claim otherwise publicly will increase scepticism
about our case.@[141]
The Straw Memo (March
25, 2002)
U.K. Foreign Secretary Jack Straw wrote this
final of four memos to Tony Blair before his April trip to Crawford.[142] The memo confirms once again that the
Bush Administration anticipates military action to remove Saddam Hussein and
again advocates the efficacy of delivering a legal ultimatum to
According to Secretary Straw, the legal
obstacles are difficult to surmount:
regime change per se is no justification for
military action; it could form part of the method of any strategy, but not a
goal. Of course, we may
want credibly to assert that regime change is an essential part of the strategy
by which we have to achieve our ends - that of the elimination of
Echoing the advice of Peter Ricketts, Straw
notes that A[o]bjectively, the threat from
The Cabinet Office
Paper (July 21, 2002)
The British Cabinet Office prepared a
briefing paper for participants at the upcoming July 23 meeting from which the
Downing Street Minutes would be generated.
The paper reiterates that Prime Minister Blair had already agreed to back
military action to eliminate Saddam Hussein=s regime at the April summit in
The memo again highlights the need to make
an ultimatum for Hussein that he would reject, and expresses concern about
[I]t is necessary to create the conditions in
which we could legally support military action. Otherwise we face the real danger that the
US will commit themselves to a course of action which we would find very
difficult to support . . . US plans assume, as a minimum, the use of British
bases in Cyprus and Diego Garcia . . . [i]t is just possible that an ultimatum could
be cast in terms which Saddam would reject (because he is unwilling to accept
unfettered access) and which would not be regarded as unreasonable by the
international community . . . [a] post-war occupation of Iraq could lead to a
protracted and costly nation-building exercise. As already made clear, the
The Cabinet Office Paper also provides
additional evidence of the concerted strategy to use the United Nations route as
a pretext for war. The Paper
confirms the now accepted notion that the United Nations could be used as an
excuse for going to war, and broaches the idea of using the United Nations to
create a legal deadline for military action. The Paper states, A[w]e need to set a deadline, leading to an
ultimatum. It would be preferable to obtain backing
of a UNSCR [United Nations Security Council Resolution] for any ultimatum and
early work would be necessary to explore with Kofi Annan and the Russians, in
particular, the scope for achieving this.@[149]
Significantly, the Cabinet Office Paper goes on to conclude that the onus
is on the United States to insure that the preconditions for war are met,
writing, the Bush Administration would need to Acreat[e] the conditions necessary to justify
government military action . . .@[150]
The
The July 23, 2002 Downing Street Minutes,
the most important and well publicized of the Downing Street Minutes materials
B sometimes described as the Asmoking gun memo@ B is a document obtained from an undisclosed
source that contains the minutes taken during a meeting among the highest
officials in the United Kingdom government and defense intelligence
figures. The British authorities
discuss the build up to the
Perhaps the most important passage in the
July 23 Minutes is a report of a recent visit to
C reported on his recent talks in
The Minutes also record British Defense
Secretary Geoff Hoon as saying, Athe
The British realized they needed "help with
the legal justification for the use of force" because, as the British Attorney
General pointed out, "the desire for regime change was not a legal base for
military action."[155] Moreover, the Attorney General stated
that of the "three possible legal bases: self-defence, humanitarian
intervention, or [United Nations Security Council] authorisation," the first two
"could not be the base in this case."[156]
In other words,
At this point in the meeting Prime Minister
Tony Blair weighed in. Responding
to his minister's suggestion about drafting an ultimatum demanding that Saddam
let United Nations inspectors back in the country, Blair acknowledged that such
an ultimatum could be politically critical B but only if the Iraqi leader turned it
down:
The Prime Minister said that it would make a
big difference politically and legally if Saddam refused to allow in the UN
inspectors. Regime change
and WMD were linked in the sense that it was the regime that was producing the
WMD. . . . If the political context
were right, people would support regime change. The two key issues were whether
the military plan worked and whether we had the political strategy to give the
military plan the space to work[157]
As if there were any doubt about the
intentions of using the United Nations to provoke war, U.K. Foreign Secretary
Jack Straw observes, A[w]e should explore discreetly the
ultimatum. Saddam would continue to play hard-ball with the UN.@[158]
ii. Confirmation and
Corroboration of
While the Bush Administration has sought to
either ignore or diminish the Downing Street Minutes, they have ultimately
proved to be important not only because they were in documentary form, but also
because of their source, a critical Bush Administration ally. Unlike other disclosures by
ex-Administration officials and others, which the White House has characterized
as biased, these disclosures cannot be dismissed as mere sour grapes.[159]
As Cindy Sheehan stated so eloquently at the
June 10, 2005 hearing on the Downing Street Minutes, convened by Representative
Conyers: AI am even more convinced now, that this
aggression on
Our research indicates there is little doubt
as to the accuracy of the Downing Street Minutes and related documents. Sources within the Blair and Bush
Administrations have confirmed their accuracy, and we have been able to
independently confirm and corroborate the major precepts of the various
documents.
It is telling that when the Downing Street
Minutes were first published by the Sunday London Times, shortly before
the 2005 British election, the Blair Administration chose not to deny their
authenticity. Shortly after the
Minutes were released, sources within both the Bush and Blair Administrations
confirmed their accuracy to the press.
A former senior
In addition, elements of the Downing Street
Minutes can be independently corroborated.
Consider the core, specific provisions of the July 23 Downing Street
Minutes from Richard Dearlove, in which he describes his recent discussions with
the Bush Administration:
·
By
mid-July 2002, eight months before the war began, President Bush had decided to
Aremove Saddam, through military
action.@
This statement that ABush wanted to remove Saddam, through
military action@ has been proven true B on March 20, 2003, the
It is also worth noting that in March 2003,
Tony Blair reportedly said, A[l]eft to himself, Bush would have gone to
war in January. No, not January,
but back in September.@[165]
·
Bush
had decided to "justify" the war "by the conjunction of terrorism and
WMD."
This statement is borne out by the entire
Amarketing campaign,@ which fixated on these twin justifications
(see Section III(A)(4) of this Report).
For example, the Bush Administration formed the White House Iraq Group
(WHIG) in August 2002 to persuade the public of Saddam=s supposed threat and to market the
war. The Administration waited to
introduce the WHIG=s product to the public until September
2002, because, as White House Chief of Staff Andrew Card told The New York
Times in an unusually candid interview, A[y]ou don't introduce new products in
August.@[166]
·
Already "the intelligence and facts were
being fixed around the
policy."
The statement that Athe intelligence and facts were being fixed
around the policy@ is confirmed by the multi-layered effort by
the Administration to pressure officials within the Administration to find links
between Saddam and September 11 and to manipulate intelligence officials and
agencies into overstating WMD threats (see Section III(B) of this Report).
·
Many
at the top of the administration Ahad no patience@ with the UN route.@
This statement is consistent with the
realities of the Bush Administration=s intentions at the time. For example, Vice President
Cheney=s stated opinion was that there was no need
to seek any approval from the UN to invade. He has stated: AA return of inspectors would provide no
assurance whatsoever of his compliance with UN resolutions. On the contrary, there is great danger
that it would provide false comfort that Saddam was somehow Aback in the box.@[167]
Mr. Cheney, like other administration Ahard-liners,@ was said to have feared Athe UN route@ not because it might fail but because it
might succeed and thereby prevent a war that they were convinced had to be
fought.@[168]
·
AThere was little discussion in
Unfortunately, this statement has been
verified by events following the war (see below). Among other things, in an ironic
assessment of the events to follow, Vice President Dick Cheney made an
appearance on Meet the Press and stated that the war was not going to be
long, costly or bloodly because Awe will be greeted as
liberators.@[169]
As the war unfolded, numerous gaps in planning became apparent.
·
The
The statement that the
·
The
British believed A[w]e should work up a plan for an ultimatum
to Saddam to allow back in the UN weapons inspectors. This would also help with the legal
justification or the use of force.@[172]
The initiative of the British to go back to
the UN to force an Aultimatum@ has also been proven true (see Section
III(A)(5) of this Report). The
Other documents released in conjunction with
the Downing Street Minutes have also been independently corroborated. For example, the Cabinet Office Paper
from July 21, 2002 and the Iraq Options Paper from March 8, 2002 include the
following:
·
Blair had already agreed to back military
action to get rid of Saddam Hussein at a summit in Crawford,
This agreement has been corroborated by
numerous sources, including British newspapers The Guardian[173]
and The Daily Telegraph.[174]
·
This plan came to fruition. Akrotiri, the British air base in
·
·
An
international coalition is necessary to provide military platform and desirable
for political purposes, even though this coalition was made up of small powers,
since the
The
·
ATime will be required to prepare public
opinion in the
The British Administration engaged in such a
marketing campaign, with the Prime Minister persuading the Parliament and public
of the case for war.[180]
·
AThe optimal times to start action are in
early spring.@
The war began on March 20, 2003, the first
day of spring.
d.
Manipulating Public Opinion
AFrom a marketing point of view … you don't
introduce new products in August.@
-----August 2002, White House Chief of Staff Andrew Card
commenting on the formation of the White House Iraq Group (WHIG) to market the
war.
The Bush Administration manipulated public
opinion by engaging in what Andrew Card, President Bush=s Chief of Staff, described as a
Amarketing@ plan to justify the war.[181] In retrospect, it is apparent that this
marketing plan was decided and implemented well before Mr. Card=s admission. The Downing Street Minutes, written in
the spring and summer of 2002, provide valuable insights into the upcoming
marketing of the justifications for war.
Not only was the British government well aware of the planned
In August 2002, Secretary of Defense
Rumsfeld ramped up the rhetoric to a significant degree, comparing Saddam
Hussein to Adolph Hitler, and deriding those asking the Bush Administration to
substantiate their Weapons of Mass Destruction claims:
Think of the prelude to World War Two. Think of all the countries that said,
well, we don=t have enough evidence. I mean, Mein Kampf had been
written. Hitler had indicated what
he intended to do. Maybe he
won=t attack us. Maybe he won=t do this or that. Well, there were millions of people dead
because of the miscalculations.
The people who argued for waiting for more evidence have to ask
themselves how they are going to feel at that point where another event
occurs.[183]
By August 2002, the Aso-called@ White House Iraq Group (WHIG) was formed as
a coordinating center to convince the public of the need for the
During this time period, there is additional
evidence of other Bush Administration officials seeking to manipulate public
opinion to support war. For
example, ABC News reported that officials both inside and outside the government
said the Bush Administration would emphasize the danger of Saddam=s weapons to gain the legal justification
for war from the United Nations and also emphasize the danger at home to
Americans, A>We were not lying,= said one official. >But it was just a matter of
emphasis.=@[187]
Consider also Paul Wolfowitz=s statement regarding why Iraq=s supposed control over weapons of mass
destruction was ultimately used to pitch the public on the war: A[F]or bureaucratic reasons, we settled on
one issue, weapons of mass destruction (as justification for invading Iraq)
because it was the one reason everyone could agree on.@[188]
Early September was a critical period in the
WHIG=s existence. It was on September 6 that The New
York Times reported that Andrew Card explained the reason for delaying the
roll-out of their pro-war campaign: AFrom a marketing point of view ... you
don=t introduce new products in
August.@[189]
It is quite telling that he referred to their
Two days later, on September 8, the
Amarketing@ campaign began in earnest. As described in one
publication:
The PR campaign intensified Sunday,
September 8 . . . 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
Frank Rich describes the flurry of activity
on that day:
All the references to nuclear threats were
beginning to have their intended impact.
As The Washington Post recounts, the administration's talk of
clandestine centrifuges, nuclear blackmail and mushroom clouds had a powerful
political effect, particularly on Senators who were facing fall election
campaigns. AWhen you hear about nuclear weapons, this is
the national security knock-out punch,@ said Senator Ron Wyden.[192]
In early October, in advance of a
congressional vote to authorize military action, the WHIG released a
Awhite paper.@
The paper is based on the rushed, confidential CIA intelligence
assessment. As Newsweek
reported:
The publicly released white paper
unequivocally backed up the White House=s case about the dangers posed by
The more detailed, classified NIE also
included the State and Energy Departments= dissents about the intended use of aluminum
tubes. Both agencies had concluded
that the tubes were not suited for use in centrifuges. Yet the publicly released white paper
mentioned no disagreement on the aluminum tubes issue, removed qualifiers and
added language to distort the severity of the threat.[194]
Communications Director James Wilkinson, who
played a prominent role in the writing of the white paper, emphasized the
importance the group placed on nuclear threat imagery, no matter how
attenuated:
By summer 2002, the White House Iraq
Group assigned Communications Director James R. Wilkinson to prepare a white
paper for public release, describing the "grave and gathering danger" of
This characterization of the WHIG and its
product, as using a no-holds barred approach to develop strategy and rhetoric
designed to pursue war, is consistent with what we have learned from other
sources. For example, Bush
Administration officials who observed the white paper=s development noted that the WHIG
Awanted gripping images and stories not
available in the hedged and austere language of intelligence.@[196]
Even Bush Administration supporter David Brooks was forced to acknowledge
Afrom Day One," the Bush White House "decided
our public relations is not going to be honest."[197]
The strong congressional vote on October 11,
was also aided in large part by the timing B less than one month before the mid-term
elections. This favorable timing
was not an accident. Among other
things, it was anticipated as early as the July
Also, on September 12, 2002, President Bush
gave a speech at the United Nations in which he declared that A
Other reports on the manner in which the
Bush Administration was planning its campaign to convince the public and the
Congress of the need for war further confirm the sense that this was more a
public relations endeavor than an honest and frank sharing of information with
the American public. For example,
in December 2002, when the President was being briefed on WMD evidence, his
basic concern appears to have been with the public relations value of the
information, rather than its actual efficacy. Bob Woodward reported that when Deputy
CIA Director John McLaughlin presented his best evidence of weapons of mass
destruction, complete with satellite photos and flip charts, the President
responded by exclaiming ANice try, but that isn=t gonna sell Joe Public. That isn=t gonna convince Joe Public. . . . This is
the best we=ve got?@[202]
By January, of course, there were fewer and
fewer doubts that the decision to go to war had been made. As noted in Bob Woodward=s APlan of Attack,@ January was when the Bush White House
Awas planning a big rollout of speeches and
documents@ to advance the war.[203] By January 12, 2003, Secretary of State
Colin Powell had become exasperated with the head long push for war. State Department officials have said
that after White House meetings, Secretary Colin Powell would return to his
office on the seventh floor of the State Department, roll his eyes and say,
AJeez, what a fixation about
Finally, on January 28, 2003, President Bush
gave his State of the Union Speech, in which he declared the now infamous 16
words: AThe British government has learned that
Saddam Hussein recently sought significant quantities of uranium from
Just as the Bush Administration engaged in a
public relations style campaign to convince the nation to support the war, the
record shows it also sought to manipulate public opinion to convince the
American public that the upcoming occupation would be straight forward and
relatively peaceful. Prior to the
war, senior members of the Bush Administration repeatedly downplayed the risks
and overstated the ease of the occupation.
For example, rejecting Army Secretary Eric Shinseki's assessment that the
mission would require large numbers of troops for a long duration, Deputy
Defense Secretary Paul Wolfowitz stated: AI am reasonably certain that they will greet
us as liberators, and that will help us to keep requirements down. In short, we
don't know what the requirement will be, but we can say with reasonable
confidence that the notion of hundreds of thousands of American troops is way
off the mark.@[208]
Later, Defense Secretary Rumsfeld echoed
these remarks, stating that A[t]he idea that it would take several
hundred thousand U.S. forces I think is far off the mark@[209]
Vice President Dick Cheney made an appearance on Meet the Press
and stated that the war would be quick and easy: AI really do believe that we will be greeted
as liberators. I've talked with a
lot of Iraqis in the last several months myself. . . . The read we get on the people of
Also in this regard, comprehensive reports
written by four ex-CIA analysts and led by former Deputy Director Richard Kerr
found:
Policymakers worried more about making the
case for the war; particularly the claim that
The evidence we have identified indicates
that the Bush Administration deliberately chose to downplay real and credible
risks regarding the occupation in order to help make the strongest case for war
for the public. Thus, for example,
in January 2003, when President Jacques Chirac=s top advisor, Maurice Gourdault-Montagne,
warned Condoleezza Rice that the war would lead to an increase in terrorism, the
National Secretary Advisor ignored the warnings:
Gourdault-Montagne talked of the unrest that
would no doubt erupt among
As a matter of fact, it has been reported
that the National Intelligence Council specifically warned President Bush in
January 2003 that Athe conflict could spark factional violence
and an anti-U.S. insurgency . . . [o]ne of the reports said the U.S.-led
occupation could >increase popular sympathy for terrorist
objectives.=@[213]
State Department officials warned not only
about the lack of planning for the occupation, but also of future human rights
abuses in
The Downing Street Minutes also indicate
that the
There is also considerable evidence
indicating that the Bush Administration went into armed conflict in
We have also to answer the big question
B what will this action achieve? There seems to be a larger hole in this
than on anything. Most of the
assessments from the
Around the same time, British Foreign Policy
Advisor David Manning wrote a memo to Prime Minister Blair in which, based on
Manning=s dinner with Condoleezza Rice, he continued
to express concern regarding the lack of United States preparation for an Iraq
occupation: AFrom what [Rice] said, Bush has yet to find
the answers to the big questions including what happens on the morning
after?@[219]
Later on in the memo, Manning again raises questions regarding the Bush
Administration=s preparedness for a post-occupation of
Perhaps most famously, in the Downing Street
Minutes, when AC,@ (Sir Richard Dearlove) reported on his
recent discussions in
Finally, we now know that a classified State
Department report, disclosed by The Los Angeles Times,
concluded that it was unlikely that installing a new government in
e. Using the
United Nations as a Pretext for War
The
----October 2002 statement by Vice President
Cheney, recounted by Iraq Survey Group head Hans Blix as a Apretty straight way . . . of saying that if
we did not soon find the weapons of mass destruction that the U.S. was convinced
Iraq possessed . . . , the U.S. would be ready to say that the inspectors were
useless and embark on disarmament by other means.@[224]
The manipulation and marketing of the
From the very outset, the Bush
Administration was antagonistic to any successes the United Nation inspectors
may have achieved. It pursued
language that would most easily have paved the way for war and then sought to
discredit the very inspections process the Security Council had just
approved. When the weapons
inspections process appeared to be working and the votes appeared lacking to
obtain a Security Council vote to authorize war, President Bush and Prime
Minister Blair met on January 31, 2003, to discuss alternative scenarios of
provoking war. Finally, when the
plan to provoke war failed and the Security Council made clear it would not
authorize military action, the Bush Administration was forced to adopt a
contorted and extreme view of international law in order to justify military
intervention.
As early as August 2002, British Foreign
Secretary Straw arrived in the
As we now know, this course of action was
set forth in the various Downing Street Minutes materials described earlier in
Section III(A)(3) of this Report.
The deceptiveness of this course of events has not been lost on other
observers. As Mark Danner of the
New York Review of Books has written, these discussions were not about
preserving the peace, or even allowing the inspectors to do the job, but about
finding a legal justification for war:
Though >the UN route= would be styled as an attempt to avoid war,
its essence, as the Downing Street memo makes clear, was a strategy to make the
war possible, partly by making it politically palatable . . . [t]hus, the idea of UN inspectors was
introduced not as a means to avoid war, as President Bush repeatedly assured
Americans, but as a means to make war possible. War had been decided on; the problem
under discussion here was how to make, in the prime minister's words,
>the political context . .
.right= . . . [t]he demand that Iraq accept UN
inspectors, especially if refused, could form the political bridge by which the
allies could reach their goal: >regime change= through >military action.=[227]
By September 7, 2002, Woodward detailed a
personal visit by Blair to persuade President Bush to go to the United
Nations: AIt was critical domestically for the Prime
Minister to show his own Labour Party, a pacifist party at heart, opposed to war
in principle, that he had gone the UN route. Public opinion in the
Five days later, on September 12, 2002,
President Bush announced that the
Four days later, on September 16, Annan
stood before the microphones at the U.N. and announced he had received a letter
from Iraqi authorities that said
Thereafter, the Bush Administration engaged
in an effort to discredit the weapons inspectors before they were even able to
do their work. For example, on
September 19, 2002, Donald Rumsfeld testified before the Senate that "the more
inspectors that are in there, the less likely something's going to happen."[234]
The same day, President Bush threatened that, "if the United Nations Security
Council won't deal with the problem, the
After this initial round of Asaber-rattling,@ the Administration then pursued an extreme
B and ultimately unsuccessful B resolution that would have allowed an
automatic trigger path to military action.
The initial draft of Resolution 1441, prepared by the Bush
Administration, threatened the use of "all necessary means" should
After this failure, the Bush Administration
continued to pursue its strategy of using the United Nations action to justify
military action, dismissing the inspection process recently approved by the
UN. Almost immediately,
On December 7, 2002, the Iraqis issued a 12,000-page document, accounting
for the state of
stated the position that inspections, if
they do not give results, cannot go on forever, and said the
By December 2002 and January 2003, it was
becoming increasingly apparent that the Bush Administration was not providing
full cooperation with UN inspection teams.
In December, UNMOVIC weapons inspection leader Hans Blix had called on
the
On February 20, 2003, CBS News reported:
AUN arms inspectors are privately complaining
about the quality of US intelligence and accusing the United States of sending
them on wild-goose chases . . . The inspectors have become so frustrated trying
to chase down unspecific or ambiguous US leads that they've begun to express
that anger privately in no uncertain terms . . . UN sources have told CBS News that
American tips have lead to one dead end after another.@
And whatever intelligence has been provided, reports CBS, has turned out
to be Acircumstantial, outdated or just plain
wrong.@[247]
Moreover, despite repeated assurances of
cooperation, the IAEA received no information on the Niger-uranium claim until
the day before Powell=s United Nations presentation, even though
Bush Administration officials had such information for over a year and provision
of information was mandated by U. N. Resolution 1441:
The U.S. Mission in
By late January, the UN was not finding any
evidence that
According to Bob Woodward, the accounts of
Iraqis cooperating with UN weapons inspectors by opening up buildings
Ainfuriated@ President Bush, who believed, in Woodward's
words, that the Aunanimous international consensus of the
November [UN] resolution was beginning to fray.@[251]
President Bush told Rice that the Apressure isn't holding together.@
President Bush also commented about the antiwar protests in the
These issues arose in the run up to
Secretary of State Colin Powell=s February 5, 2003, presentation to the
United Nations Security Council. To
the Bush Administration=s chagrin, the presentation did not produce
a Asmoking gun@ that would cause other members of the
Council to join in efforts to authorize the use of force. Indeed, it now appears clear that by
this time, the Bush Administration had no intelligence of its own that could
provide hard evidence to support any claim that Saddam Hussein possessed any WMD
threatening the
On February 14, Hans Blix appeared before
the Security Council and essentially contradicted Powell's presentation: AThe trucks that Powell had described as
being used for chemical decontamination, Blix said, could just as easily have
been used for >routine activity.=
He contradicted Powell's assertion that the Iraqis knew in advance when
the inspectors would be arriving. Mohamed ElBaradei of the IAEA weighed in as
well, insisting that, at least on the nuclear front, there was no evidence
Saddam had any viable program.
Further, Blix said that
On February 24, 2003, the Bush
Administration opted to propose the long-awaited Asecond resolution@ authorizing war.[254] Although the resolution was ultimately
withdrawn on March 17, 2003, without a vote B even though President Bush had assured all
concerned that there would be a vote Ano matter what the whip count is@[255] B
the Bush Administration=s desperate tactics to obtain passage, even
to the point of wiretapping the communications of Security Council Members,
belie the true purpose of the United Nations route.
For example, the Bush Administration engaged
in a secret Adirty tricks@ campaign against UN Security Council
delegations as part of its struggle to win votes in favor of the requisite
second resolution. A memorandum
written by a top official at the U.S. National Security Agency details an
aggressive surveillance operation that involved the interception of home and
office telephone calls and e-mails and was particularly directed at AUN Security Council Members (minus US and
GBR, of course).@[256]
The memo was directed at senior NSA officials and advises them that the
agency is Amounting a surge@ aimed at gleaning information not only on
how delegations on the Security Council will vote on any second resolution on
Iraq, but also Apolicies,@ Anegotiating positions,@ Aalliances@ and Adependencies@ B the Awhole gamut of information that could give
US policymakers an edge in obtaining results favorable to US goals or to head
off surprises.@[257]
The existence of this surveillance operation
severely undercut the credibility and efforts of the Administration to win over
undecided delegations. In addition,
diplomats complained about the outright Ahostility@ of
Further proof that the Bush Administration
used the United Nations as a pretext for war can be seen in the fact that by
March, after it was clear the votes did not exist for a second resolution, the
Administration engaged in furious and frantic efforts to develop the legal cover
to justify military action.[259] Thus, the Bush Administration began to
argue that the invasion would be pursuant to a Security Council Resolution.[260] In a speech immediately preceding the
invasion, President Bush cited to three previous UN Security Council resolutions
that purportedly conferred legal authorization for force. These were: (1) the recent Resolution
1441, which dealt with the renewed weapons inspections; (2) Resolution 678,
adopted in 1990, authorizing force in the Persian Gulf war; and (3) Resolution
687, adopted shortly after the war ended, imposing economic sanctions and
calling for the surrender for WMD.[261]
The Bush administration=s legal justifications for changing course
and action without a second resolution also lack credibility. With respect to Resolution 1441, the
clear weight of authority signaled that it did not in itself authorize force and
that the Administration would need a second resolution from the Security
Council. In fact, the
Even Richard Perle, a noted war hawk,
acknowledged that legal precedent did not support the unilateral action taken by
the Bush and Blair Administration.
Before an audience in
While the Bush Administration was forced to
make these far fetched legal arguments, British legal authorities found
themselves in the position of having to completely reverse their initial
assessments of the illegality of the war.
Thus, although as recently as Spring 2002, it was clear British legal
advisors understood that applicable international law did not justify military
action,[265]
less than one year later, British authorities were altering their legal analysis
and conclusions. For example, on
March 17, 2003, the British Attorney General produced a memo that provided an
unequivocal justification for the use of force, which contained no caveats or
reservations. His new view, which
still remains contentious in
This abrupt about face led to a legal storm
in the
One casualty, Elizabeth Wimshurst, Deputy
Legal Adviser at the British Foreign Office, stated in he letter of resignation
in protest of the war that the invasion of Iraq is a Acrime of aggression.@[269]
She said she could not agree to military action in circumstances she
described as Aso detrimental to the international order
and the rule of law.@ [270] She also noted:
I regret that I cannot agree that it is
lawful to use force against
2.
Misstating and Manipulating
the Intelligence to Justify Pre-emptive War
AThere was a great deal of pressure to find a
reason to go to war with
-----Fall/Winter, 2001, a CIA official
working on WMD[272]
Our investigation reveals that there was a
steady stream of pressure and other forms of influence placed on intelligence
and other government officials by the Bush Administration to adopt assessments
supporting war with
As a general matter, the record reveals that
the Bush Administration engaged in several techniques to insure that the
available intelligence information would be used to justify war B including the application of political
pressure on intelligence officials, Astovepiping@ (whereby raw and unfiltered data was
forwarded directly to the White House); Acherry-picking@ (by which the White House only utilized
those bits of data and information, often without qualification or caveat, that
supported a case for war); and selectively leaking information (including
classified information) to the media.[273]
We know about these techniques from numerous
and repeated disclosures by current and former intelligence and Administration
officials. Perhaps most damaging
are the candid assessments by life-long Republican and former Treasury Secretary
Paul O=Neill and Secretary of State
Powell=s former Chief of Staff, Lawrence
Wilkerson. Mr. O=Neill recounted, AIf you operate in a certain way - by saying
this is how I want to justify what I've already decided to do, and I don't care
how you pull it off - you guarantee that you'll get faulty, one-sided
information . . . [y]ou don't have to issue an edict, or twist arms, or be
overt.@[274]
Lawrence Wilkerson recently stated:
The case that I saw for four-plus years was
a case I have never seen in my studies of aberrations, bastardizations,
perturbations, changes to the national security decision-making process, . . .
What I saw was a cabal between the vice president of the United States,
Richard Cheney, and the Secretary of Defense, Donald Rumsfeld, on critical
issues that made decisions that the bureaucracy did not know were being made
. . . [when a decision was presented to the bureaucracy], it was presented in
such a disjointed, incredible way that the bureaucracy often didn=t know what it was doing as it moved to
carry them out.[275]
With regard to outright pressure, a former
CIA analyst described the intense pressure brought to bear on CIA analysts by
the Bush Administration:
AThe analysts at the C.I.A. were beaten down
defending their assessments. And
they blame George Tenet@ C the CIA director C Afor not protecting them. I=ve never seen a government like
this.@[276]
In a similar vein, The Washington
Post described the pressure on intelligence officials from a barrage of
high-ranking Bush Administration officials:
Former and current intelligence officials
said they felt a continual drumbeat, not only from Cheney and Libby, but also
from Deputy Defense Secretary Paul D. Wolfowitz, Feith, and less so from CIA
Director George J. Tenet, to find information or write reports in a way that
would help the administration make the case that going into Iraq was
urgent. AThey were the
browbeaters,@ said a former defense intelligence official
who attended some of the meetings in which Wolfowitz and others pressed for a
different approach to the assessments they were receiving. AIn interagency meetings,@ he said, AWolfowitz treated the analysts' work with
contempt.@[277]
There are numerous other instances and
corroboration of this pressure. For
example, on October 8, 2002, Knight Ridder reported that various military
officials, intelligence employees, and diplomats in the Bush Administration
charged Athat the administration squelches dissenting
views and that intelligence analysts are under intense pressure to produce
reports supporting the White House's argument that Hussein poses such an
immediate threat to the United States that preemptive military action is
necessary.@[278]
It has also been reported that the Vice President=s staff monitored the National Security
Council staff in such a heavy-handed fashion that some N.S.C. staff Aquit using e-mails for substantive
conversations because they knew the vice president=s alternate national security staff was
reading their e-mails now.@[279] United States Diplomat John Brady Kiesling
resigned his post as a diplomat because of the flaws in the intelligence
process. In his resignation letter,
he cited his opposition to the Adistortion of intelligence, such systematic
manipulation of American opinion.@[280]
A CIA official working on WMD
explained: A>[T]here was a great deal of pressure to find
a reason to go to war with
With regard to stovepiping and
cherry-picking, a former intelligence aid stated: A>There=s so much intelligence out there that
it=s easy to pick and choose your case . . .
[i]t opens things up to cherry-picking.=@[282]
Former CIA officer Robert Baer concluded on the CNN documentary Dead
Wrong, that Athe problem is the White House
didn=t go to the CIA and say >tell me the truth,=it said >give me ammunition.=@[283]
As Spencer Ackerman and John Judis found in their article AThe First Casualty,@ Ainterviews with current and former
intelligence officials and other experts reveal that the Bush administration
culled from
Seymour Hersh similarly found that: AChalabi=s defector reports were now flowing from the
Pentagon directly to the Vice-President=s office, and then on to the President, with
little prior evaluation by intelligence professionals.@[285]
Former National Security Council official,
Ken Pollack, confirmed how the Bush Administration abused the intelligence
process in order to justify invading Iraq, observing the Bush team had
Adismantle[d] the existing filtering process
that for fifty years had been preventing the policymakers from getting bad
information. They created
stovepipes to get the information they wanted directly to the top leadership.
Their position is that the professional bureaucracy is deliberately and
maliciously keeping information from them.
They always had information to back up their public claims, but it was
often very bad information.@[286]
Similar, damaging acknowledgments of
intelligence manipulations have been made by ex-CIA officials. Vincent Cannistraro, the CIA=s former head of counter-intelligence
admitted, ABasically, cooked information is working its
way into high-level pronouncements and there=s a lot of unhappiness about it in
intelligence, especially among analysts at the CIA.@[287]
Michael Scheuer, a CIA analyst, echoed this when he stated, A[t]here was just a resignation within the
agency that we were going to war against Iraq and it didn=t make any difference what the analysis was
or what kind of objections or countervailing forces there were to an
invasion. We were going to
war.@[288]
In an interview on the PBS show
Frontline, Greg Thielmann, Director of the Strategic, Proliferation and
Military Affairs Office at the State Department=s
Intelligence Bureau, who was responsible for
analyzing the Iraq’s weapon threat, accused the White House of Asystematic, across-the-board
exaggeration@ of intelligence as it made its case that
Saddam Hussein posed an imminent threat to the U.S.[289] He further contended that Asenior officials made statements which I can
only describe as dishonest.@[290]
Mr. Thielmann has also stated that Athe American public was seriously
misled. The Administration twisted,
distorted, and simplified intelligence in a way that led Americans to seriously
misunderstand the nature of the
It also appears that the Bush Administration
engaged in an organized effort to selectively leak information to the media in
order to help justify the case for war.
As Knight Ridder reported:
A Knight Ridder review of the
administration=s arguments, its own reporting at the time
and the Senate Intelligence Committee=s 2004 report shows that the White House
followed a pattern of using questionable intelligence, even documents that
turned out to be forgeries, to support its case B often leaking classified information to
receptive journalists B and dismissing information that undermined
the case for war.[292]
This process of selective leaking appears to
have had a particularly debilitating impact on the intelligence
community:
A routine settled in: the
Pentagon=s defector reports, classified
Asecret,@ would be funneled to newspapers, but
subsequent C.I.A. and INR analyses of the reports B invariably scathing but also classified
B would remain secret.
AIt became a personality issue,@ a Pentagon consultant said of the Bush
Administration=s handling of intelligence. AMy fact is better than your fact. The whole thing is a failure of
process. Nobody goes to primary
sources.@
The intelligence community was in full retreat.[293]
Some of the above-described techniques can
be seen in two instances B the visits by the Vice President and
Scooter Libby to CIA headquarters; and efforts by the Vice President and his
office to influence and manipulate Secretary of State Powell=s February, 2003 speech before the United
Nations.
It is now well known that the Vice President
himself, along with his Chief of Staff, Scooter Libby, made numerous visits to
CIA Headquarters in
Vice President Cheney and his most senior
aide made multiple trips to the CIA over the past year to question analysts
studying Iraq's weapons programs and alleged links to al Qaeda, creating an
environment in which some analysts felt they were being pressured to make their
assessments fit with the Bush administration's policy objectives, according to
senior intelligence officials. With
Cheney taking the lead in the administration last August in advocating military
action against Iraq by claiming it had weapons of mass destruction, the
visits by the Vice President and his chief of staff, I. Lewis "Scooter" Libby,
>sent signals . . . that a certain output was
desired from here,= one senior agency official said
yesterday . . .. The exact number of trips by Cheney to
the CIA could not be learned, but one agency official described them as
"multiple." They were taken in addition to Cheney's regular attendance at
President Bush's morning intelligence briefings and the special briefings the
vice president receives when he is at an undisclosed location for security
reasons.[294]
Some analysts went even further in detailing
the pressure placed on them by the Vice President=s visits. According to former CIA officials, the
visits created a Achill factor@ among those working on
The record also shows that the Bush
Administration gave the Secretary of State significant amounts of biased and
one-sided intelligence information and then pressured the Secretary to skew his
presentation to the United Nations.
Lawrence Wilkerson, Colin Powell=s Chief of Staff at the time of the speech,
has stated that when the Secretary of State first received background materials
for his speech from the White House:
A[Powell] came through the door that morning
and he had in his hand a sheaf of papers and he said this is what I=ve got to present at the United Nations
according to the White House and you need to look at it . . . [i]t was anything
but an intelligence document. It
was, as some people characterized it later, sort of a Chinese menu from which
you could pick and choose.@[297]
Powell himself junked much of what the CIA had given him to read,
reportedly calling it Abull****.@[298]
This was followed by numerous meetings in
which the Vice President=s office sought to pressure Mr. Powell to
make the case for war:
The meetings [between the Vice
President=s staff and the Secretary of
State=s staff] stretched on for four more days and
nights. Cheney's staff constantly
pushed for certain intelligence on Iraq's alleged ties to terrorists to be
included-information that Powell and his people angrily insisted was not
reliable . . .Cheney and his staff had insisted that their intelligence was, in
fact, well documented. They told
Powell not to worry. One morning a
few days before the speech, Powell encountered Cheney in the hallway outside the
Oval Office. >Your poll numbers are in the
70s,= Cheney told him. >You can afford to lose a few
points.=[299]
It also has been reported that Mr. Libby was
pushing so hard to include certain intelligence information in the speech that
Mr. Libby called Mr. Powell=s suite at the Waldorf Astoria hotel the
night before the speech. John E.
McLaughlin, then-deputy director of the CIA, has testified to Congress that
Amuch of our time in the run-up to the speech
was spent taking out material . . . that we and the
secretary=s staff judged to have been
unreliable.@[300]
The eventual speech (discussed in greater
length in Section III(a)(5) of this Report) Awas still based on a hyped and incomplete
view of
a. Links to
September 11 and al Qaeda
“Wrong answer . . . . Do it Again.@
-----Fall 2001, Richard Clarke, on 60
Minutes, describing the reaction of the Bush White House to his report
finding no connection between
Our investigation has found that members of
the Bush Administration made numerous false statements alleging links between
Numerous members of the Bush Administration,
including the President, made false statements linking Saddam Hussein to the
events of September 11 and al Qaeda.
AYou can=t distinguish between al Qaeda and Saddam
when you talk about the war on Terror,@ President Bush said on September 25,
2002.[305] Secretary Rumsfeld, Secretary Powell and
National Security Advisor Rice all issued misleading statements regarding this
linkage as well. For example, in
September 19, 2002 testimony before the Senate Armed Services Committee, the
Defense Secretary claimed AWe know that al Qaeda is operating in Iraq
today, and that little happens in Iraq without the knowledge of the Saddam
Hussein regime.@[306]
On September 27, 2002, Secretary Rumsfeld claimed that he had
Abulletproof@ evidence of ties between Saddam and Al-
Qaeda.[307] Powell also described a Apotentially . . . sinister nexus between
In particular, the Vice President made a
number of false statements linking
In addition, both the President and
Secretary of State Powell made false statements claiming that
We now know that there statements were
false. With respect to general
linkages between
As for the allegations that Iraq had trained
members of al Qaeda to make bombs with poisons and deadly gases, and that they
had high level contacts going back a decade, these statements were based on
information provided by a top al Qaeda operative, Ibn al-Shaykh al-Libi. However, Mr. al-Libi, who was captured
in
Numerous public reports and information, as
well as statements by current and former Bush Administration officials, indicate
that the Bush Administration must have known that these misstatements were not
fully supported at the time they were made, and that members of the Bush
Administration had exercised political pressure so that intelligence information
would support their desired conclusions.
i. General
Linkages Between
With regard to general assertions linking
It was also recently disclosed that as early
as September 21, 2001, the President knew there was no evidence tying
Moreover, a June 21, 2002 CIA report titled,
AIraq and Al Qaeda: Interpreting a Murky
Relationship,@ stated A[o]ur knowledge of Iraqi links to Al Qaeda
still contains many critical gaps@ and A[s]ome analysts concur with the assessment
that intelligence reporting provides >no conclusive evidence of cooperation on
specific terrorist operations.=@[326]
In addition, an October 2002 NIE included
key judgments regarding Saddam Hussein=s link to al Qaeda. In its section on AConfidence Levels for Selected Key
Judgements in This Estimate,@ the NIE gave a ALow Confidence@ rating to the notion of A[w]hether in desperation Saddam would share
chemical or biological weapons with Al Qa'ida.@[327]
The NIE also reported that A
In January of 2003, the CIA issued an
updated and revised version of AIraq Support for Terrorism,@ initially circulated in September
2002. The paper stated,
A[t]he Intelligence Community has no credible
information that
Michael Scheuer, a CIA analyst, described a
comprehensive CIA examination of the possible linkage, which was totally
disregarded by the White House.
Scheuer told CNN, AMr. Tenet, to his credit, had us go back
through CIA files and we went back for almost ten years, reviewed nearly
20,000 documents, which came to 65,000 pages or more and could find no
connection in the terms of a state sponsored relationship with Iraq. I believe Mr. Tenet took it
downtown, but it apparently didn=t have any impact.@[330]
Another former CIA agent Bob Baer also confirmed, ABut there is no evidence that a strategic
partnership came out of it.
I=m unaware of any evidence of Saddam pursing
terrorism against the
Finally, former senior State Department
intelligence official Greg Thielmann has stated, AThere was no significant pattern of
cooperation between Iraq and the al Qaeda terrorist operation . . .
[i]ntelligence agencies agreed on the >lack of a meaningful connection to al
Qaeda= and said so to the White House and
Congress.@[332]
There is also significant evidence that
members of the Bush Administration not only knowingly made false statements
regarding linkages between al Qaeda and Iraq, they also pressured intelligence
officials to do the same, and on at least one occasion, caused classified
information to be leaked that would help support its case.
Government reports as well as numerous
admissions by Bush Administration officials and CIA personnel, confirm the
extraordinary effort by the Administration to link Saddam Hussein with the
September 11 attacks. In an
important report in which a classified internal review of the CIA=s pre-war intelligence was conducted, former
Deputy Director of Central Intelligence, Richard Kerr stated publicly that:
There was a lot of pressure, no question . .
.[t]he White House, State, Defense, were raising questions, heavily on W.M.D.
and the issue of terrorism . . . some of the analysts felt there was pressure .
. . some people in the agency will say, 'We've been pushed too hard.'
Analysts will say, 'You're trying to politicize it.' There were people who felt there was too
much pressure . . . they were being asked again and again to re-state their
judgments-do another paper on this, repetitive pressures. Do it again.[333]
Kerr=s conclusions were confirmed by a similar
investigation conducted by the CIA Ombudsman, who told the Senate Intelligence
Committee that the Ahammering@ by the Bush Administration on
Another former official with the Bush
National Security Counsel acknowledged, AIt was a classic case of rumint,
rumor-intelligence plugged into various speeches and accepted as
gospel.@[336]
An official with the CIA told The New York Times directly that the
Administration was using intelligence information in any manner to link Saddam
Hussein with al Qaeda. AI remember reading the Abu Zubaydah [a top
Al-Qaeda leader] debriefing last year, while the administration was talking
about all of these other reports [of a Saddam-al Qaeda link], and thinking that
they were only putting out what they wanted.@[337]
FBI employees have also described the Bush
Administration=s willingness to manipulate intelligence
linking
At the Federal Bureau of Investigation, some
investigators said they were baffled by the Bush administration=s insistence on a solid link between
Another source familiar with the September
11 investigation admitted:
AThe FBI has been pounded on to make this
link.@[339]
The attempted linkages were so attenuated
that the Director of the CIA had to correct Bush Administration misstatements on
numerous occasions. George Tenet
testified before the Senate Armed Services Committee that in at least three
instances, he had to correct President Bush and Vice President Cheney for making
misrepresentations of intelligence in their public speeches.[340] Tenet said he also was forced to correct
Vice President Cheney for having referred to Douglas Feith's disputed memo about
There is significant evidence that the
Pentagon=s newly created Counter Terrorism Evaluation
Group (CTEG)[342]
under Douglas Feith B which is currently under investigation for
wrongdoing[343] B was used to place undue pressure on both
the State Department and the CIA linking Iraq with al Qaeda, to cherry-pick and
stovepipe such information directly to the White House, and to leak classified
information regarding this linkage to the press. A New York Times article
concluded that Afor
Mel Goodman, a CIA analyst for 24 years -
also detailed the political pressure brought to bear on career intelligence
officials: A>[Vice President Cheney] was holding forth on
what he thought the situation was and why doesn't your intelligence support what
we know is out there? They assumed he was referring to
[Feith's] Pentagon intelligence unit that was producing stuff that was going
right downtown and had much stronger claims about links between Saddam and
al-Qaeda.=@[345]
This pressure appears to have seeped all the
way down to Iraqi exiles, as they were apparently advised to tailor their
information to show links to terror and WMD by
The Iraq National Congress (INC), an
exile group based in
as their campaign manager,
>Go get me a terrorist and some W.M.D.,
because that's what the Bush administration is interested in.=@[346]
It was also clear to British intelligence
and diplomatic personnel that the Bush Administration was pushing and
manipulating intelligence to link September 11 to Saddam Hussein. For example, in the March 22, 2002
Ricketts Memo, part of the Downing Street Minutes documents, Peter Ricketts, the
Political Director of the Foreign and Commonwealth Office, advised the Prime
Minister on his April 2002 trip to Crawford: AUS scrambling to establish a link between
Iraq and Al-Aaida[sic] is so far frankly unconvincing@ and AFor Iraq, >regime change= does not stack up. It sounds like a grudge between Bush and
Saddam.@[347]
The Downing Street Minutes also include the following admission by the UK
Overseas and Defense Secretariat in the March 8, 2002 Options Paper: AIn the judgement of the JIC [British Joint
Intelligence Committee] there is no recent evidence of Iraq complicity with
international terrorism. There is
therefore no justification for action against
ii. Meeting Between
Mohammed Atta and Iraqi Officials
With respect to the alleged meeting between
Mohammed Atta and a senior Iraqi official in
Administration officials also described the
same type of pressure and manipulation concerning the alleged meeting between
Mohammed Atta and Iraqi Intelligence. The Washington Post described an
ongoing tug-of-war between the Vice-President=s office and the CIA:
The feud had been simmering in the run-up to
the
iii.
We now know that the information provided by
the prisoner Ibn al-Shaykh al-Libi - that Iraqis had trained Al Qaeda members to
use chemical and biological weapons - was false and that the Bush Administration
knew his information was not credible.
This is because of the recent declassification of a key Defense
Intelligence Agency document by Senator Carl Levin:
A high al Qaeda official in American custody
was identified as a likely fabricator months before the Bush administration
began to use his statements as the foundation for its claims that
There appears to be little doubt that key
Administration officials knew of this important disclosure, because as an
official intelligence report, labeled DITSUM No. 044-02, it would have
circulated widely within the government and would have been available to the
CIA, the White House, the Pentagon and other agencies.[353] Nor could Secretary of State Powell
have responsibly relied on al-Libi=s information given that a classified CIA
assessment at the time stated that Athe source [al-Libi] was not in a position
to know if any training had taken place.@[354]
According to The New York Times, the misinformation came from a
detainee Aidentified as a likely
fabricator@ months before the Bush Administration began
to use his statements as the foundation for its claims that
The declassified DIA document also reveals
that the President=s and Secretary of State Powell=s claims of a Adecade@ long relationship between
FBI anti-terrorism expert, Dan Coleman,
observed that A[i]t was ridiculous for interrogators to
think Libi would have known anything about
Another reason to question the credibility
of the Bush Administration=s statements relying on al-Libi=s disclosure is that the Administration knew
that his information flowed directly from a harsh interrogation. Current and former government officials
have recently admitted that al-Libi stated that he had fabricated his statements
to escape harsh treatment. The
officials noted that al-Libi provided his most specific and elaborate accounts
about ties between
b.
Resumed Efforts to Acquire
Nuclear Weapons
AWe still knew enough, [and] we could watch
pretty closely what was happening.@
-----According to one CIA analyst
describing events in 2002,
Numerous members of the Bush Administration
made a variety of claims to the effect that
In addition, in his October 7, 2002, speech
in
These statements were all false and
misleading. On October 2, 2003,
David Kay reported that Awe have not uncovered evidence that Iraq
undertook significant post-1998 steps to actually build nuclear weapons or
produce fissile material.''[371] In his January 28, 2004, testimony
before the Senate Armed Services Committee, Dr. Kay reported that A[a]s best as has been
determined . . . in 2000 they had decided that their nuclear
establishment had deteriorated to such point that it was totally
useless.@[372]
He concluded that there was Ano doubt at all@ that
Beyond making false and misleading
statements about
At the same time, British Intelligence also
had not identified any nuclear threat emanating from
The State Department=s Bureau of Intelligence and Research (INR)
also did not support a credible case for
The December 2001 NIE clearly stated that
This lack of hard evidence of a nuclear
threat from
within the administration, Tenet and the CIA
came under an entirely different kind of pressure:
Also, two senior policymakers stated in
unauthorized interviews that the Bush Administration greatly overstated the
short-term dangers of
ii. Claims Regarding
Hussein=s Son-in-Law
According to the Vice President, Saddam
Hussein=s son-in-law, Hussein Kamel al-Majid, had
made claims that
An IAEA delegation, headed by the leader of
the Action Team, went to Baghdad and held a round of talks with the Iraqi
authorities, from 17 to 20 August 1995 . . . General Hussein Kamel's
statement [of August 22, 1995] was compatible with statements made in the
Baghdad talks, that all nuclear weapons related activities had effectively
ceased at the onset of the attack on Iraq by the coalition forces.[387]
The Washington Post also had reported that known intelligence
contradicted any statement made by the Vice President that Kamel was a source of
intelligence on
But Saddam Hussein lured Kamel back to
February 1996, so Kamel could not have
sourced what
In October 2004 The New York Times
published similar conclusions:
In his
iii. Statement that
With respect to President Bush=s September 7, 2002 statement regarding a
new IAEA Report stating that
A[if
-----Energy Department analyst testimony
before the Senate Intelligence Committee
The Bush Administration also misstated and
unjustly overstated intelligence with regard to the charge that
For example, in September 2002, Vice
President Cheney stated that Ait is now public that, in fact, he [Saddam]
has been seeking to acquire, and we have been able to intercept and prevent him
from acquiring through this particular channel, the kinds of [aluminum] tubes
that are necessary to build a centrifuge . . . We do know, with absolute
certainty, that [Saddam Hussein] is using his procurement system to acquire the
equipment he needs in order to enrich uranium to build a nuclear
weapon.@[393]
Also in September 2002, on an appearance on Meet the Pres,
Mr.Cheney said he knew Ain fact@ and Awith absolute certainty@ that Mr. Hussein was buying equipment to
build a nuclear weapon.[394] That same day, then National Security
Advisor Condoleezza Rice told CNN that: AWe do know that there have been shipments
going into . . . Iraq, for instance, of aluminum tubes that really are only
suited to - high quality aluminum tools that are only really suited for nuclear
weapons programs, centrifuge programs.”[395] In addition, Secretary of State Powell
asserted to the Security Council that the tubes were manufactured to a tolerance
Athat far exceeds
These statements have proved to be both
false and misleading. First, on
January 27, 2003, the IAEA concluded that the aluminum tubes Awould be consistent with the purpose stated
by
It is now clear that the Bush Administration
was aware that these claims regarding the tubes were not only controversial, but
also did not stand up to the clear weight of authority from the
First, there are numerous reports from the
Department of Energy that contain information directly contradicting the Bush
Administration=s contentions.
For example, the Energy Department, the
agency responsible for constructing centrifuges and operating the
nation=s nuclear weapons facilities, learned that
on April 10, 2001, an individual identified as AJoe@ at the CIA had told senior members of the
Administration that the tubes Ahave little use other than for a uranium
enrichment program.@[402] The next day the Department was able to
rebut the assertions by identifying a number of reasons why the tubes were not
appropriate for centrifuges: ASimply put, the analysis concluded that the
tubes were the wrong size - too narrow, too heavy, too long - to be of much
practical use in a centrifuge. What was more, the analysis reasoned, if
the tubes were part of a secret, high-risk venture to build a nuclear bomb, why
were the Iraqis haggling over prices with suppliers all around the world? And why weren't they shopping for all
the other sensitive equipment needed for centrifuges?@[403]
The next month, the Department of Energy
analysts went even further, explaining that while the tubes were not suitable
for uranium centrifuges, they could easily be used to construct conventional
rockets.[404] Many of these concerns were published on
May 9, 2001, in the Energy Department=s Daily Intelligence Highlight on Intelink,
a Web site for the intelligence community and the White House.[405] Among other things, the Energy
Department reported, AIraq had for years used high-strength
aluminum tubes to make combustion chambers for slim rockets fired from launcher
pods . . . The tubes now sought by Iraq had precisely the same dimensions - a
perfect match.@[406]
Additional evidence was developed by the
Energy Department in the summer of 2001, after the
First, in size and material, the tubes were
very different from those
By the end of 2001, Energy Department
experts produced an even more definitive analysis rebutting the contention that
the aluminum tubes being procured by
[A]nalysts from CIA's Weapons Intelligence,
Non‑Proliferation, and Arms Control Center (WINPAC) sought the assistance of the
DOE National Laboratories B specifically, Oak Ridge National Laboratory
B to test the tubes. The Oak Ridge laboratory
concluded that, while it was technically possible to enrich uranium using tubes
of the diameter the Iraqis were seeking, it would be suboptimal to do so . . .
the tubes Iraq was seeking were so suboptimal for uranium enrichment that it
would have taken many thousands of them to produce enough uranium for a
weapon‑‑and although Iraq was in fact seeking thousands of tubes, DOE
assessed it would have been highly unlikely for a proliferator to choose a route
that would require such a large number of machines.[410]
In other words, the analysts had found it
would be so difficult, expensive and time consuming for
Other agencies within the Administration
also found the claim that the aluminum tubes could be credibly used for the
production of weapons grade uranium to be lacking, including the State and
Defense Departments.[413] In the NIE, the State Department
explained: AThe very large quantities being sought, the
way the tubes were tested by the Iraqis, and the atypical lack of attention to
operational security in the procurement efforts are among the factors, in
addition to the DOE assessment, that lead INR to conclude that the tubes are
not intended for use in Iraq=s nuclear weapons
program.@[414]
The NIE went on to conclude, AINR considers it far more likely that the
tubes are intended for another purpose, most likely the production of artillery
rockets.@[415]
It has also been reported that shortly
before Secretary Powell=s UN presentation on this matter, the State
Department explicitly warned him not to assert the aluminum tubes claim: A[I]n a memo written two days [before his UN
speech] Mr. Powell's intelligence experts had specifically cautioned him about
those very same words. >In fact,= they explained, >the most comparable
Defense Department experts also found the
aluminum tubes to be consistent with use as rockets, not nuclear weapons
production. When the CIA asked
Pentagon engineers to review the Iraqi tubes, they found the tubes Awere perfectly usable for
rockets.@[417]
British intelligence experts also found it
far-fetched that the Iraqi aluminum tubes could be used for nuclear
weapons. They believed the tubes
would require Asubstantial
re-engineering@ to work in centrifuges, according to
The highly respected Institute for Science
and International Security also issued a series of lengthy reports using
non-classified data to rebut the contention that the aluminum tubes could be
used for nuclear weapons production.
The first of these reports was issued on September 23, 2002,[419]
but it received no credence or even a response by the Bush
Administration.
The IAEA also scrutinized the claims that
[IAEA head Jack] Baute . . .made quick work
of the aluminum tubes. He assembled a team of experts--two Americans, two
Britons, and a German--with 120 years of collective experience with centrifuges.
After reviewing tens of thousands of Iraqi transaction records and inspecting
Iraqi front companies and military production facilities with the rest of the
IAEA unit, they concluded, according to a senior IAEA official, that
>all evidence points to that this is for the
rockets=--the same conclusion reached by the State
and Energy Departments.[420]
As The New York Times reported,
AUnlike >Joe,= experts at the international agency had
worked with Zippe centrifuges, and they spent hours with him explaining why they
believed his analysis was flawed. They pointed out errors in his calculations.
They noted design discrepancies. They also sent reports challenging the
centrifuge claim to American government experts through the embassy in
It is also important to note that even the
CIA, which nominally supported the Administration=s charges regarding
$
A June
20, 2001 CIA paper found the tubes were "more consistent" with a centrifuge
application, but Awe are also considering non‑nuclear
applications for the tubes.@[424]
$
A June
30, 2001 CIA paper found that if
$
A
November 24, 2001 CIA paper described Adivergent views@ about the tubes' intended use.[426]
$
Toward
the end of 2001, according to the WMD report, Athe CIA informed senior policymakers that it
believed the tubes were destined for use in Iraqi gas centrifuges,@ but noted Athat there was disagreement within the
Intelligence Community concerning the most likely use for the tubes.@[427]
$
An
August 1, 2002 CIA memo found the tubes were "suitable" for uranium enrichment
but included a text box with possible other uses.[428]
Despite the tremendous weight of evidence
indicating that the aluminum tubes being procured by
It is clear from our investigation that
intense political pressure played a role in this decision, as well as
cherry-picking and using only intelligence that supported a decision to invade
We know of the intense pressure to adopt the
Administration=s claims that the aluminum tubes were to be
used as centrifuges because of explicit admissions by Bush Administration
officials. For example,
intelligence analysts informed members of the Senate Intelligence Committee,
AThere's so much pressure, you know, they
keep telling us, go back and find the right answer.@[431] Another source learned that Energy
Department personnel were pressured to silence their criticisms of the
Administration=s aluminum tubes theory, with one expert at
the Department=s Lawrence Livermore National Laboratory in
As David Barstow, William J. Broad, and Jeff
Gerth summarized in their report in The New York Times, when it came to
the issue of the aluminum tubes, A[s]enior administration officials repeatedly
failed to fully disclose the contrary views of America's leading nuclear
scientists . . . [t]hey sometimes overstated even the most dire intelligence
assessments of the tubes, yet minimized or rejected the strong doubts of nuclear
experts. They worried privately
that the nuclear case was weak, but expressed sober certitude in public. One result was a largely one-sided
presentation to the public that did not convey the depth of evidence and
argument against the administration's most tangible proof of a revived nuclear
weapons program in
Our investigation has also found that
classified intelligence information supporting the Bush
Administration=s position regarding the aluminum tubes was
leaked to the press. For example,
on Sunday, September 8, 2002, the lead story in The New York Times,
written by Judith Miller and Michael R. Gordon, quotes Aanonymous@ Administration officials as stating that
A
Subsequent media accounts have traced the
story, at least in part to Paul Wolfowitz:
In the summer of 2002, [Deputy Defense
Secretary Paul] Wolfowitz convened a secret meeting [concerning the tubes] in
his office with Francis Brooke, the I.N.C. adviser, and Khidir Hamza, a former
chief of Saddam's nuclear program, who had defected to
On the CNN Documentary, Dead Wrong,
an anonymous source characterized the dissemination of this biased and slanted
information to Miller and Gordon as Aofficial leaking@:
AI would call it official leaking because I
think these were authorized conversations between the press and members of the
intelligence community that further misreported the nature of the intelligence
community's disagreement on this issue.@[438]
Our investigation has also learned that
administration officials appear to have leaked classified information to the
press well before the New York Times article. A July 29, 2002 article in the
Washington Times, titled AIraq Seeks Steel for Nukes@ reported:
Procurement agents from Iraq’s covert
nuclear-arms program were detected as they tried to purchase stainless-steel
tubing, uniquely used in gas centrifuges and a key component in making the
material for nuclear bombs, from an unknown supplier, said administration
officials familiar with intelligence reports . . . U.S. intelligence agencies
believe the tubing is an essential component of Iraq’s plans to enrich
radioactive uranium to the point where it could be used to fashion a nuclear
bomb . . . The covert nuclear-acquisition effort was detected in mid-June,
and reports about the activities were then circulated to senior Bush
administration policy officials. "This is only one sign that
The coordinated leak campaign involved the
very highest levels of the Bush Administration. It began on the eve of the first
anniversary of the September 11 attacks when numerous high level officials
appeared on the Sunday talk shows to highlight the aluminum tube Adiscovery.@
Among other things:
$
Condoleezza Rice stated: A[Iraq has obtained] high quality aluminum
tubes that are only really suited for nuclear weapons programs, centrifuge
programs@ and AWe don't want the smoking gun to be a
mushroom cloud.@[440]
$
Vice
President Dick Cheney stated:
AI do know with absolutely certainty that he
is using his procurement system to acquire the equipment he needs to enrich
uranium to build a nuclear weapon@[441]
$
Donald
Rumsfeld stated: AImagine a September 11 with weapons of mass
destruction.@[442]
It was the leak to The New York Times
that enabled Bush Administration officials to even have these specific
discussions on the Sunday talk shows.
As Knight Ridder explained, A[the leaks] appearance in the
nation=s most influential paper also gave Cheney
and Rice an opportunity to discuss the matter the same day on the Sunday
television talk shows. They could
discuss the article, but otherwise they wouldn=t have been able to talk about classified
intelligence in public.@[443]
Former NSC official Rand Beers observed that, A[a]s they [the Bush Administration]
embellished what the intelligence community was prepared to say and as the press
reported that information, it began to acquire its own sense of truth and
reality.@[444]
The September 8, 2002 leak to Miller and
Gordon was not the only example of such selective leaking. The Administration went so far as to
note and then dismiss the intra-Administration debate concerning the tubes in a
September 13, 2002 leak to The New York Times. A New York Times article that day
quoted an unnamed senior administration official dismissing the tubes debate as
a Afootnote, not a split.@[445] Citing another unnamed administration
source, the article reported that the "best technical experts and nuclear
scientists at laboratories like
The leak even went so far as to misrepresent
the various agencies= position on the tubes debate, as the
article reported the administration officials as claiming Ait was the intelligence agencies= unanimous view that the type of tubes that
Iraq has been seeking are used to make such centrifuges@ and A[t]he Defense Intelligence Agency and the
National Security Agency support the C.I.A. view, the officials
said.@[447] These claims, as we now know, were
false.
The Bush Administration went even further to
guarantee that its selective and one-sided leaking would go unchallenged - by
muzzling anyone within the Administration who would expose any contrary
views. On September 13, the day
The New York Times article appeared, the Energy Department forwarded a
directive forbidding employees from discussing the tubes matter with
reporters.[448]
The Bush Administration also selectively
declassified information regarding the aluminum tubes to support its case for
war. This can be seen in the
October 1, 2002 declassified NIE, which left out the views of those in the
Administration who questioned the ability of Iraq to use the tubes as uranium
centrifuges:
On October 1, 2002, Tenet produced a
declassified NIE. But Graham and
Durbin were outraged to find that it omitted the qualifications and
countervailing evidence that had characterized the classified version and played
up the claims that strengthened the administration's case for war. For instance, the intelligence report
cited the much-disputed aluminum tubes as evidence that Saddam Aremains intent on acquiring@ nuclear weapons. And it claimed, AAll intelligence experts agree that
d.
Acquisition of Uranium from
AThey got pounded on, day after
day,= . . .
and received no consistent backup from Tenet and his senior staff. >Pretty soon you say F***
it.=
And they began to provide the intelligence that was
wanted.@
-----2002 statement by a senior CIA
Analyst[450]
The Bush Administration also made numerous
misstatements regarding the charge that
In his January 2003 State of the Union
Address, President Bush stated, Athe British government has learned that
Saddam Hussein recently sought significant quantities of uranium from
The Secretary of Defense, in Congressional
testimony, also claimed that Saddam was Aaggressively pursuing nuclear
weapons.@[456]
In
a discussion about
These statements were not true. On March 7, 2003, the head of the IAEA,
Dr. Mohammed ElBaradei, informed the UN Security Council that the Italian
Documents, Awhich formed the basis for the reports of
recent uranium transactions between
A review of the record indicates that these
charges were elevated and made public because of cherry-picking and pressure by
the Bush Administration on intelligence officials, and also that the charges
were contradicted by the overwhelming weight of intelligence
information.
First, the public record demonstrates that
the Bush Administration was willing to elevate, without adequate scrutiny, the
allegations that
Vice President Cheney quickly jumped on this
dated and dubious intelligence assertion and pressured intelligence officials to
verify the SISMI report:
AThe Vice-President saw a piece of
intelligence reporting that
It was during 2002 that CIA officials report
severe pressure from the Bush Administration on these issues: ASenior C.I.A. analysts dealing with
Later in 2002, when Elizabetta Burba, a
reporter for an Italian magazine, turned over additional documents concerning
the purported uranium sales to the U.S. Embassy,[466]
the Bush Administration seized the opportunity to disseminate the charges to the
highest levels of the CIA and the Pentagon. As two former CIA officials explained,
AThe Embassy was alerted that the papers were
coming . . . and it passed them directly to
Although the charge was still largely
unverified, by the time of the President=s 2003 State of the Union address, the Bush
Administration was facing a situation in which many of its claims B such as the aluminum tubes charge
B had been discredited,[468]
and the international community did not appear ready for war.[469] It was at this time, Afour days before President Bush delivered
his State of the Union address presenting the case for war against
Second, our investigation has confirmed that
the President=s and other Bush Administration
officials= charges regarding uranium acquisition from
Foremost is the fact that Ambassador Joe
Wilson, who was asked by the CIA to travel to
Also in February 2002, the deputy commander
of U.S. Armed Forces Europe, Marine Gen. Carlton Fulford, traveled to Niger and
met with the country's president. He concluded that, given the controls on
Other experts at the CIA were also highly
skeptical of the claim.[477] Prior to the President=s October 7, 2002 speech in
At the same time Tenet was sending faxes and
telephoning the White House in early-October 2002, his deputy was telling the
Senate Select Committee on Intelligence that the American Intelligence community
believed the British had stretched the case on African uranium sales to
It also has been reported that the CIA had
sought to dissuade the British from asserting the
State Department analysts also Aconsidered [the
The
[Alain
Chouet, a senior French intelligence official] recalled that his agency was
contacted by the CIA in the summer of 2001 C
shortly before the attacks of Sept. 11 . . .CIA officials asked their French
counterparts to check that uranium in
After
dispatching a team to
The Bush Administration was able to insist
on using the 16-word
British learned that
By the time the President had opted to
include the Iraq-Niger uranium claim in his 2003 State of the Union speech,
intelligence officials were flabbergasted that the misinformation could have
gone so far. Seymour Hersh
describes the following discussions with intelligence officials:
The State of the Union speech was
confounding to many members of the intelligence community, who could not
understand how such intelligence could have got to the President without
vetting. The former intelligence
official who gave me the account of the forging of the documents told me that
his colleagues were also startled by the speech. They said, AHoly sh**, all of the sudden the President
is talking about it in the State of the Union address!@
They began to panic.[496]
Finally, the weakness of the Bush
Administration=s case can be seen by its inability to
provide information supporting its position to the IAEA, and in turn, the
IAEA=s ease in confirming the documents were
fraudulent. On February 4, 2003,
the Bush Administration informed the UN's IAEA that it Acannot confirm [the uranium]
reports.@[497]
On March 3, 2003, the IAEA told the American government that the
documents were forgeries.[498] On March 7, 2003, the head of the IAEA,
Dr. Mohammed ElBaradei, informed the United Nations Security Council that the
Italian Documents, Awhich formed the basis for the reports of
recent uranium transactions between
e. Chemical
and Biological Weapons
AThis war=s going to happen regardless of what
Curveball said or didn=t say, and that the Powers That Be probably
aren=t terribly interested in whether Curveball
knows what he=s talking about.@
-----February 4, 2003, Deputy
Chief of the CIA=s Iraqi Task Force in response to CIA
Doctor[502]
The Bush Administration has also misstated
and overstated intelligence information regarding (i)
First, in terms of misstatements regarding
chemical weapons generally, in his October 7, 2002, speech in
Second, on September 12, 2002, as president
Bush was preparing to speak before the UN, the White House rolled out a report
entitled A
Third, in terms of misstatements regarding
mobile weapons, on February 5, 2003, in an address before the United Nations,
Secretary of State Colin Powell stated that he had learned that Iraq controlled
several mobile biological weapons laboratories as a result of information
derived from numerous defectors, describing one as Aan eyewitness . . . who supervised one of
these facilities@ and was at the site when an accident killed
12 technicians.[508] Relying on supposed eyewitness accounts
by an Iraqi defector known in the intelligence community as ACurveball,@ Powell warned that
Fourth, in terms of misstatements regarding
unmanned aerial vehicles, in his February 2003 address to the United Nations,
Secretary Powell stated:
AUAVs are well suited for dispensing chemical
and biological weapons. There is
ample evidence that
These statements have been proven to be
untrue. First, with respect to a
chemical weapons program, David Kay conclusively stated in congressional
testimony that A[m]ultiple sources with varied access and
reliability have told ISG [the Iraq Survey Group] that Iraq did not have a
large, ongoing, centrally controlled CW [Chemical Weapons] program after 1991.
Information found to date suggests that
Second, with respect to the charge by the
Iraqi defector at Haeder that he had buried Atons@ of chemical and other weapons, the CIA
confirmed this was a lie.[516]
Third, as to assertions regarding mobile
biological weapons labs, on March 7, 2003, Hans Blix, the chief United Nations
weapons inspector, told the Security Council that a series of searches had found
Ano evidence@ of mobile biological production facilities
in
Fourth, the Bush Administration=s claims about UAV have not been
substantiated. On January 28,
2004, David Kay testified on behalf of the Iraq Survey Group that
miles B not far enough B The Washington Post noted,
Ato hit the targets Bush named.@[521]
Each and every one of these four categories
of misstatements were made after the Bush Administration knew they were not
fully corroborated and were strongly contradicted by other sources, and, in some
cases, appear to have been accompanied by political
pressure.
i. General
Assertions Regarding Chemical and Biological Weapons
With respect to general assertions regarding
chemical weapons, our investigation shows they conflicted with known reports at
the time, that the Bush Administration did not reveal that one of its principal
sources had provided contrary information, and that many of Secretary
Powell=s assertions were not fully supported.
In September 2002, the Defense Intelligence
Agency (DIA) issued a report that concluded: AA substantial amount of Iraq=s chemical warfare agents, precursors,
munitions, and production equipment were destroyed between 1991 and 1998 as a
result of Operation Desert Storm and UNSCOM (United Nations Special Commission)
actions . . . [t]here is no reliable information on whether Iraq is producing
and stockpiling chemical weapons or where Iraq has--or will--establish its
chemical warfare agent production facilities.@[522]
Moreover as noted in the discussion about
the information provided by Hussein=s son-in-law by 1995 the CIA was aware that
Kamel al-Majid had stated that
A declassified CIA document, apparently from
a debriefing of Kamel by the
HUSAYN KAMIL MADE THE FOLLOWING STATEMENTS
AWARE THAT THEY WOULD REACH
KAMIL STRESSED THAT NO [CW] AGENT WAS HIDDEN
IN
In addition, shortly before the
Hussein Kamel, the highest‑ranking Iraqi
official ever to defect from Saddam Hussein's inner circle, told CIA and British
intelligence officers and U.N. inspectors in the summer of 1995 that after the
gulf war, Iraq destroyed all its chemical and biological weapons stocks and the
missiles to deliver them . . . Kamel was interrogated in separate sessions by
the CIA, Britain's M.I.6 and a trio from the United Nations, led by the
inspection team's head, Rolf Ekeus. NEWSWEEK has obtained the notes of Kamel's
U.N. debrief, and verified that the document is authentic. NEWSWEEK has also
learned that Kamel told the same story to the CIA and M.I.6. (The CIA did not
respond to a request for comment.)[525]
Finally, a comprehensive review of Secretary
Powell=s statements regarding chemical and
biological weapons was compared to State Department and other analyses.[526] The comparison indicates that, contrary
to his assertions, many of Mr. Powell=s statements were not fully
supportable. For example, the
Secretary stated that Awe know from sources that a missile brigade
outside
ii. Assertions
Regarding Buried Chemical and Other Weapons
With regard to the charges that tons of
chemical, biological and other weapons were buried underground in
The illegal arms, according to al-Haideri,
were buried in subterranean wells, hidden in private villas, even stashed
beneath the
The polygraph was completed in December
2001, ten months before the White House report was issued.[534]
iii. Assertions Regarding
Given the massive weight of authorities
raising concerns about Curveball, key officials in the Bush Administration had
to have known their biological weapons charges were problematic. These doubts were brought to the Bush
Administration=s attention before Secretary of State Powell
gave his February 2003 United Nations address, and were also raised repeatedly
and persistently by German and British intelligence agencies, as well as by key
officials within the CIA.
German intelligence authorities voiced many
substantive concerns to the Bush Administration about relying on Curveball for
mobile weapons labs charges. As
The Los Angeles Times recently reported:
The German intelligence officials
responsible for one of the most important informants on Saddam
Hussein=s suspected weapons of mass destruction say
that the Bush Administration and the CIA repeatedly exaggerated his claims
during the run-up to the war in
As one senior German intelligence officer
explained after seeing Powell=s UN statements regarding Curveball: A>We were shocked,= the official said. >Mein Gott!
We had always told them it was not proven . . . It was not hard
intelligence.=@[536]
British intelligence officials also raised
doubts.[537] The Robb-Silberman Commission found that
British intelligence officials had informed the CIA that they were
Anot convinced that Curveball is a wholly
reliable source@ and that Aelements of [his] behavior strike us as
typical of . . . fabricators.@[538]
CIA officials also provided information
questioning the Bush Administration=s mobile biological weapons assertions
before both the President=s 2003 State of the Union Address and
Secretary of State Powell=s February UN address. For example, the CIA=s
On February 4, 2003, the day before
Secretary Powell=s speech, the CIA doctor who had met with
Curveball sent an urgent e-mail stating that he Awas deemed a fabricator. Need I say more?@[542]
The Deputy Chief of the CIA=s Iraqi Task Force replied to the doctor,
upon receiving the doctor=s email: AAs I said last night, let=s keep in mind the fact that this
war=s going to happen regardless of what
Curveball said or didn=t say, and that the Powers That Be probably
aren=t terribly interested in whether Curveball
knows what he=s talking about.@[543]
Also, shortly before Mr. Powell=s UN presentation, a CIA official questioned
the sources he was using to make the mobile biological weapons labs claims. According to the Senate Intelligence
Committee Report, Aa [CIA] detailee [was provided] a draft of
the BW [mobile biological weapons] section of Secretary Powell=s United Nations speech on February 2 or 3,
2003, according to the CIA.
After reading the speech, the detailee wrote an electronic mail (e-mail)
to the Deputy Chief of the Iraqi Task Force to express his concerns about the
use of the four HUMINT [human intelligence] sources cited in the
speech.@[544]
Thus, for example, with respect to the first
source, Curveball, the detailee wrote:
I do have a concern with the validity of the information based on
CURVEBALL . . . were having major handling issues with him and were attempting
to determine, if in fact, CURVEBALL was who he said he was. These issues, in my opinion, warrant
further inquiry, before we use the information as the backbone of one of our
major finding of the existence of a continuing Iraqi BW program!@[545]
The detailee also expressed concern about the second source cited in
Powell=s speech - an Iraqi civil engineer in a
position to know the details of the program.[546] Among other credibility issues, the
detailee stated that the source Asure didn=t corroborate >curve ball=s= information.@[547]
With respect to the fourth source - an Iraqi Major who defected and had
purportedly confirmed that
Beyond ignoring the weight of intelligence
authority, the record also indicates evidence that the Bush Administration
manipulated intelligence information.
For example, with regard to the CIA-prepared intelligence estimate, the
Los Angeles Times reports: ADespite the lack of access or any new
reports from
A Congressional staffer who was privy to the
CIA=s threat assessment confirmed that the
assessment merely collected arguments for going to war, without doing any
substantive review or critique:
[i]t highlighted Aextensive Iraqi chem-bio programs and
nuclear programs and links to terrorism@ but then included a footnote that read,
AThis information comes from a source known
to fabricate in the past.@ The staffer concluded that
Athey didn't do analysis. What they did was they just amassed
everything they could that said anything bad about
Finally, the record shows that the Bush
Administration made false charges regarding UAVs and
Moreover, with regard to assertions by the
President that biological and other weapons can be used by
3. Encouraging
and Countenancing Torture and Cruel, Inhuman and Degrading Treatment
Our investigation has found that the Bush
Administration has not only countenanced, but also paved the way, for torture,
cruel, inhuman and degrading treatment, and other violations of international
treaties. While additional
violations of international treaties may well have occurred in
In April of 2004, the world was shocked when
photos of torture and humiliation of Iraqi detainees in Abu Ghraib prison were
leaked to the press. On May 6,
President Bush stated that the Awrongdoers will be brought to
justice,@ and Athat the actions of those folks in
a. Documented
Instances of Torture and Other Legal Violations
AI questioned some of the things that I saw .
. . such things as leaving inmates in their cell with no clothes or in female
underpants, handcuffing them to the door of their cell C and the answer I got was,
>This is how military intelligence (MI) wants
it done.=@
-----January, 2004, Sergeant Ivan L.
Frederick II, soldier of the 372nd
Military Police Company in a letter to family describing acts committed
against Iraqi detainees at Abu Ghraib. [556]
Investigations conducted by the military; as
well as international human rights organizations including Human Rights First,
the International Committee of the Red Cross (ICRC), the ACLU, Amnesty
International, and Human Rights Watch, and media organizations; have identified
numerous detainee deaths, incidents of torture, and other abuses under
international law in
The ATaguba Report@ was prepared by Maj. Gen. Antonio Taguba at
the request of Lt. Gen. Ricardo S. Sanchez, the U.S. Commander of the Combined
Joint Task Force in
between October and December 2003, at the Abu Ghraib Confinement Facility (BCCF), numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. This systemic and illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force . . . of the Abu Ghraib Prison (BCCF). The allegations of abuse were substantiated by detailed witness statements . . . and the discovery of extremely graphic photographic evidence.[559]
The Taguba Report has confirmed that
military and intelligence personnel and DOD contractors were responsible for
Anumerous incidents of sadistic, blatant, and
wanton criminal abuses . . . inflicted on several detainees,@ and that such abuses were Asystemic,@ Aillegal,@ and Aintentionally perpetrated.@[560]
The Report details that intentional acts of abuse committed by military
personnel include Apunching, slapping and kicking
detainees,@[561] rape, use of military dogs to intimidate
detainees, and numerous other types of mistreatment.[562] There are detailed witness statements by
numerous officers and soldiers within the 800th Brigade which substantiate these
allegations.[563] Moreover, these allegations have been
confirmed by photographs and videos depicting the graphic images of abuse.[564] It is important to note that Major
General Taguba=s investigation delved into only one brigade
at one prison in
Numerous international human rights groups
have detailed even more serious abuses. Human Rights First has uncovered at
least 16 detainee deaths in
The ICRC also has made similar findings
regarding the treatment of Iraqi detainees.[571] An ICRC report has concluded that acts
of violence and degradation were used on a Asystematic@ basis and included:
$
Extended time spent in stress positions
$
Hanging
of detainees by their arms for hours at a time
$
Deprivation of sleep, food, water, clothing
and light
$
Sexual
assault and humiliation of male and female
detainees
$
Threatening and simulating electrocution and
murder
$
Beatings and murder.[572]
The ACLU has used Freedom of Information Act
requests to collect thousands of pages of internal documents, confirming the
physical and sexual abuse of detainees and citizens by military personnel in
Amnesty International has reported that acts
of torture have not only occurred at detention sites but also continue to be
perpetrated against Iraqis during house raids and arrests.[577] They found:
$
Hooding
of suspects upon arrest.
$
Striking of suspects with
rifles.
$
Soldiers taking aim on suspects with
rifles.
$
Injuring of suspects with severe blows by
punching and
kicking.[578]
Human Rights Watch confirmed with three
officers that torture was a daily practice at the 82nd Airborne Division in
Human Rights Watch found that others were
abused for apparently no reason at all.
One officer recalled a cook who came into the detention area in a bad
mood, seeking to work out his Afrustration:@
AOne day a sergeant shows up and tells a
[detainee] to grab a pole. He told
him to bend over and broke the guy=s leg with a mini Louisville Slugger that
was a metal bat. He was the f***ing
cook. He shouldn’t be in with no
[detainee]s.@[582]
That officer continued, AEveryone in camp knew if you wanted to work
out your frustration you show up at the PUC tent. In a way it was sport.@[583]
Newsweek chronicled the abuse witnessed by Army
Specialist Anthony Lagouranis. He
said abuse was part of the job, expected of soldiers in an effort to loosen up
detainees and make them talk:
I think our policies required abuse . . . There were freaking horrible things people were doing. I saw [detainees] who had feet smashed with hammers. One detainee told me he had been forced by Marines to sit on an exhaust pipe, and he had a softball‑sized blister to prove it. The stuff I did was mainly torture lite: sleep deprivation, isolation, stress positions, hypothermia. We used dogs.[584]
Time magazine recently uncovered that CIA
interrogators tried to cover up the death of an Iraqi ghost detainee who died
while being interrogated at Abu Ghraib prison.[585] According to documents obtained by
Time, the death of secret detainee Manadel al-Jamadi was ruled a homicide
in the Defense Department autopsy, which states that after approximately 90
minutes of interrogation in the custody of CIA officials, he died of
Ablunt force injuries@ and Aasphyxiation.@[586]
Further evidence of this cover-up is demonstrated by documents obtained
by Time, including many Aphotographs of his battered corpse ‑‑ iced
to keep it from decomposing in order to hide the true circumstances of his dying
. . .@[587]
Time reported that, as a result of al-Jamadi=s treatment, AMilitary Police at Iraq's notorious Abu
Ghraib prison dubbed him the Iceman; others used the nickname Mr.
Frosty.@[588]
The New York Times has reported on substantial evidence that
torture and murder were used by CIA operatives in
ii. Cruel, Inhuman
and Degrading Treatment
The ICRC has identified numerous incidents
of cruel, inhuman, and degrading treatment (CID) in
According to the February 2004 report of the
ICRC,
$
Apunching, slapping and kicking detainees[,
and] jumping on their naked feet@;
$
Avideotaping and photographing naked male and
female detainees@;
$
Aforcibly arranging detainees in various
sexually explicit positions for photographing@;
$
Aforcing detainees to remove their clothing
and keeping them naked for several days at a time@;
$
Apositioning a naked detainee on a . . . Box,
with a sandbag on his head, and attaching wires to his fingers, toes, and penis
to simulate electric torture@;
$
Aplacing a dog chain or strap around a naked
detainee=s neck and having a female Soldier pose for
a picture@;
$
Aa male MP [military police] guard having sex
with a female detainee@;
$
Ausing military working dogs (without
muzzles) to intimidate and frighten detainees, and in at least one case biting
and severely injuring a detainee@; and
$
Ataking photographs of dead Iraqi
detainees.@[593]
iii. Other Possible
Violations of International Treaties
We have also identified practices designed
to keep detainees hidden from the ICRC, namely detainees being moved around in
Army General Paul Kern testified before the
Senate Armed Services Committee in September of 2004 that the
Moreover, it appears from statements of Col.
Thomas M. Pappas, head of military intelligence operations at Abu Ghraib, that
ghosting was coordinated between military and CIA commanders on the ground.[599] During his interview with investigators,
Col. Pappas said that Col. Steven Boltz, then the second-ranking military
intelligence officer in
Recent reports coming out of
Use of WP as an incendiary weapon against
civilians is banned by Protocol III of the 1980 Convention on Certain
Conventional Weapons (CCW).[604] Protocol III regulates the use of
weapons designed to set fire to or burn their target. The protocol proscribes targeting
civilians with incendiary weapons and restricts the use of air-delivered
incendiary weapons against military targets in close proximity to concentrations
of noncombatants.[605] Protocol III only covers weapons created
intentionally to set fire or burn, such as flamethrowers, and does not cover
weapons that ignite fires or burn as a side effect. Because we have not signed Protocol III,
the
However, grave breaches are also defined
within the Geneva Conventions, as "willful killing, torture or inhuman
treatment, including biological experiments, willfully causing great suffering
or serious injury to body or health."[606] Thus, the use of WP in combat would
appear to be illegal as it would fall within this definition of grave breaches
under the Conventions, to which the
b.
Bush Administration
Responsibility for Torture and Other Legal Violations
AIn recent days, there has been a good deal
of discussion about who bears responsibility for the terrible activities that
took place at Abu Ghraib. These
events occurred on my watch. As
Secretary of Defense, I am accountable for them. I take full
responsibility.@
-----May 7, 2004, Secretary of Defense
Donald Rumsfeld before the House Armed Services Committee[607]
Failure to Adequately
Prosecute Torture and Other Legal Violations by Contractors and Others Within
its Jurisdiction
There appear to be numerous instances of
torture that are capable of being punished within the jurisdiction of the
Justice Department, which includes the authority under the Military
Extraterritorial Jurisdiction Act to pursue criminal charges against military
contractors, military personnel, and CIA officers.[608] It is telling that only one such case
has resulted in an official indictment, and no one has been convicted. In fact, according to Amnesty
International, despite the numerous detainee deaths that occurred in Abu Ghraib
as a result of torture and other legal violations, it appears that no member of
the military has received a sentence of more than three years in prison.[609]
According to a recent report by the New
York Times, despite evidence of CIA involvement in the deaths of at least
four prisoners in Iraq and Afghanistan, the Justice Department has charged only
one person linked to the CIA with wrongdoing in any of the cases; that person,
David A. Passaro, was a contractor, not an official CIA officer, though.[610] In a recent New York Times Op-Ed,
Frank Rich asks, Awhy have the official reports on detainee
abuse at Abu Ghraib and
Human rights law expert Scott Horton surmised that not only had the Justice Department poorly executed its investigative duties, but that then-Attorney General Ashcroft had willfully disregarded his discretionary duty to prosecute.[612] He also theorized that a failure to conduct meaningful investigation would continue in the future stating:
The Attorney General, John Ashcroft, and his immediate subordinates have . . . been complicit in a scheme for the commission of war crimes and accordingly will not undertake a criminal investigation. . . The Attorney General-designate, Alberto Gonzales, is a principal author of the scheme to undertake war crimes . . . [S]enior lawyers at DOJ, acting with the knowledge and support of the Attorney General, were complicit in the scheme to introduce torture and other abusive practices into authorized regimes of treatment for detainees in GWOT. It is therefore clear that DOJ will not act on its responsibility to initiate criminal investigations or undertake prosecutions of the conspirators and implementers of this scheme.[613]
Numerous rights groups have also expressed
their outrage at the failure of the Justice Department to prosecute. They have
rejected the military findings that only low-level officials were complicit in
the abuses at Abu Ghraib and requested that the Justice Department investigate
and prosecute higher officials.[614]
In an open letter to Alberto Gonzales, the ACLU wrote:
There
is an obvious public interest in investigating and prosecuting all persons
committing torture or abuse or conspiring to commit those crimes against persons
being held by the
Other rights groups, including Human Rights
Watch and Amnesty International, have requested that Attorney General Gonzales
Aappoint a special prosecutor to investigate
the roles of all
Removal of Detainees from
We have clear evidence, by virtue of a March
19, 2004 memo from the Justice Department=s Office of Legal Counsel, that the Justice
Department paved the way for the removal of detainees identified above.[619]
The Justice Department memo undermined the
Geneva Convention=s prohibition against deportation and
forcible removal by stating, Athat there is no evidence that the [Geneva
Convention=s prohibition against deportation and
forcible removal] extended to illegal aliens from occupied territory . . . and
there is no evidence that international law has ever disapproved of such
removals.@[620]
The classified memo then concludes that there is an exception to the ban
against forcible transfers and deportations of protected persons, surmising that
protected persons, Awhether illegal aliens or not,@[621] may be A. . . relocate[d] . . . from occupied
There appears to be little doubt that this
memo gave the CIA legal cover for removing both Iraqi citizens and foreigners
found on Iraqi soil. One
intelligence official stated that A[t]he memo was a green
light,@ and that A[t]he CIA used the memo to remove other
people from
Rights groups such as Human Rights First
have closely linked the March 2004 memo with the practices of ghosting and
rendition that have since become rampant in
Limited Construction of
Torture and Applicability of CID
The Department of Justice also bears
significant responsibility for the acts of torture and other legal violations by
virtue of the extreme and narrow legal views it has adopted. These are set forth in an August 1, 2002
memo setting forth an inappropriately narrow definition of torture and in Mr.
Gonzales=s January 2005 confirmation hearing
testimony on the jurisdictional reach of bans on CID.
An August 1, 2002 Department of Justice memo
addressed to then-White House Counsel Gonzales creates a definition of torture
that is contrary to international law, domestic law, and legislative intent.[628] The memo claims that torture consists
of Aextreme acts@ under
However, 18 U.S.C. ' 2340-2340A, the federal law executing the
U.N. Convention Against Torture,[630]
does not use the word Aextreme@ or otherwise suggest the conclusion that
Athose acts must be of an extreme nature to
rise to the level of torture within the meaning of Section 2340A and the
Convention.@ [631] Instead, the law provides:
(1) Atorture@ means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) Asevere mental pain or suffering@ means the prolonged mental harm caused by or resulting from - (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.@[632]
There is nothing in this definition that
requires the sensation of either organ failure or death, or a level of mental
harm rising to a disorder, to invoke the law=s protections.
Mr. Gonzales has followed up this position
on torture by taking the position at his confirmation hearing that the ban on
Cruel, Inhuman and Degrading treatment only applies to detainees held within the
However, Attorney General Gonzales has
argued that the limitation was categorical and not definitional. He believes that only those individuals
covered by the 8th Amendment would receive protection against cruel, inhuman or
degrading treatment. If so, this
means that all of those foreign nationals held overseas will be stripped of
protection against CID.
Mr. Gonzales=s argument has been rejected by numerous
groups and scholars and has been refuted by countless groups outside of the
Administration.[635] For example, the following groups have
publicly objected to this new and unfounded interpretation: Human Rights First, the American Civil
Liberties Union, Amnesty International,
Personal Approval of Torture
and Other Illegal Actions
In terms of Secretary Rumsfeld, first, he
approved treatment in violation of the Geneva Conventions for individuals held
in
We know about his approval of unlawful
tactics because, according to a letter from William Haynes to Secretary
Rumsfeld, on November 27, 2002, Mr. Rumsfeld signed the Haynes action memo,
which requested approval of counter-resistance techniques, and actually asked
for harsher techniques.[638] These tactics were created for the
express purpose of Aenhancing [military] efforts to extract
additional information@ from detainees and included removal of
detainee clothing, use of hoods and dogs.[639] The most egregious of these tactics
are collectively referred to as ACategory III,@ and include the Ause of scenarios designed to convince the
detainee that death or severely painful consequences for him and/or his family
are imminent.@[640]
The memo notes that such a tactic could easily be construed as a death
threat, which constitutes infliction of mental pain and suffering under the
Torture Convention.[641]
The memo also notes that another Category III tactic - use of a
Awet towel and dripping water to induce the
misperception of suffocation,@[642] could also be construed as a violation
of the Torture Convention since it was likely to inflict mental harm.[643]
We also know that Mr. Rumsfeld had to have
appreciated that these tactics would migrate to
Further, Larry Wilkerson, former Chief of
Staff to former Secretary of State Colin Powell, charged that a cabal of senior
Administration officials issued directives that led to the abuse of prisoners by
that there was a visible audit trail from the vice president=s office through the secretary of defense down to the commanders in the field that in carefully couched terms B I=ll give you that B that to a soldier in the field meant two things: we=re not getting enough good intelligence and you need to get that evidence B and oh, by the way, here=s some ways you probably can get it.[647]
Moreover, we now know that Secretary
Rumsfeld was put on notice by the International Committee of the Red Cross that
these techniques he was exporting to Iraq were considered to be Aan intentional system of cruel, unusual and
degrading treatment and a form of torture.@[648]
These warnings began in 2003, soon after invasion, and were made to
military leadership at least as high as Deputy Defense Secretary Paul
Wolfowitz.[649] Secretary Rumsfeld stated by his own
admission before the House Armed Services Committee on May 7, 2004, Athese events occurred on my watch. As Secretary of Defense, I am
accountable for them. I take full
responsibility.@[650]
Command
Responsibility
There is substantial evidence that not only
did Secretary Rumsfeld know the conditions for abuse being set and know abuse
was taking place, but also that he did very little to prevent or punish the
illegal activity. Specifically, it
appears that Secretary Rumsfeld was well aware of or should have known the
following:
· That detainees in Iraq were being tortured, or treated in a cruel, inhuman and degrading way as the International Committee of the Red Cross reported over 250 allegations of abuse to military officials in 2003 alone, [651] that according to former Secretary of State Colin Powell, Secretary Rumsfeld personally kept the President Afully informed of the concerns that were being expressed@ by the ICRC,[652] and that there were no less than 14 public accounts of detainee abuse after the spring of 2002 and before the 60 Minutes II airing of the Abu Ghraib photos.[653]
· That, as confirmed by Army Gen. Paul Kern in testimony before the Senate Armed Services Committee, detainees were kept hidden from the International Committee of the Red Cross on numerous occasions and Athe number [of ghost detainees] is in the dozens, perhaps up to 100.@[654]
Although it is clear by now that Secretary
Rumsfeld either knew or should have known about the illegal practices at
detention facilities in
While a number of low-level individuals were
punished, such a response appears to be insufficient in two important
respects: the acts of torture have
not been punished with the severity that is truly necessary to deter others from
engaging in such conduct; and high-level officials who have encouraged or
permitted the behavior in the first place have not been punished at
all.
First, Human Rights First and Amnesty
International estimate from publicly-available information that those who were
actually punished were usually given no more than a slap on the wrist. A full 70 percent of those sanctioned by
the military were give non-judicial, administrative punishments.[655] The longest sentenced meted out for the
death of a detainee was only three years.[656] While we can confirm that there have
been no less than 410 criminal investigations as of June 2005 B almost all including more than one offender
and more than one victim B only 74 soldiers have been criminally
charged.[657]
Further, it appears that Secretary Rumsfeld
has chosen not to investigate or to punish officials high in the chain of
command. There has been nearly unanimous critique of the military investigations
by groups advocating the abolition of torture and cruel treatment, such as Human
Rights First, which notes that, Amonths after the Abu Ghraib photos were
published B and nearly two years after the first
abuse-related deaths in U.S. custody in the >war on terror= B we are still not in a position to say that
we know how to ensure that such abuses never happen again.[658] Amnesty International expresses similar
critiques of the military investigations, explaining that Aevidence of torture and other ill‑treatment
by US forces in the >war on terror= continues to mount, but no
Ghosting and Removal of
Detainees
We also have an admission that George Tenet
specifically approved the ghosting in
Q: Mr. Secretary, I'd
like to ask why last November you ordered the
SEC.
RUMSFELD: With respect to the ‑‑ I
want to separate the two.
The CIA transferred Mr. Rashul to an
undisclosed location outside
General Sanchez then issued his own order to
implement Secretary Rumsfeld=s order. A media report on the Sanchez order
describes that it Aaccepts custody and detains Hiwa Abdul
Rahman Rashul, a high-ranking Ansar al-Islam member;@ orders that he Aremain segregated and isolated from the
remainder of the detainee population;@ A[o]nly military personnel and debriefers
will have access to the detainee. . . . Knowledge of the presence of this
detainee will be strictly limited on a need-to-know basis.@
AAny reports from interrogations or
debriefings will contain only the mininum [sic] amount of source information . .
.@.[666]
Mr. Rashul was detained at
After media reports began circulating in
June 2004 as to the existence of an unregistered detainee, Mr. Rashul was
finally registered. This occurred
more than eight months after he was turned over to the military and almost a
year after his initial capture and detention.[670]
Further, in his statement to investigators,
Col. Thomas M. Pappas, the top military intelligence officer at Abu Ghraib,
stated that in September 2003, the CIA requested that the military intelligence
officials Acontinue to make cells available for their
detainees and that they not have to go through the normal in processing
procedures.@[671] And, as Army General Paul Kern testified
before the Senate Armed Services Committee in September of 2004, the
In addition, Secretary Rumsfeld confirmed
that the ghosting of detainees occurred on his watch on many
occasions:
Q: But then why wasn't the ‑‑ why wasn't the Red Cross told, and there are other such prisoners being detained without the knowledge of the Red Cross?
SEC. RUMSFELD: There are ‑‑ there are instances where that occurs. And a request was made to do that, and we did.[673]
"It's slime and
defend . . .@
-----October 2, 2003, Republican aide on
Capitol Hill, describing the White House's effort to raise questions about Mr.
Wilson's motivations and its simultaneous effort to shore up support in the
Republican ranks.[674]
Inevitably, information began to seep out
exposing the many falsehoods and deceptions concerning the
a. The
The most well-known example of the Bush
Administration=s efforts to cover up its misdeeds and exact
revenge against its critics is its response to Ambassador Joseph
Wilson=s statements regarding the forged
Beginning in the Summer of 2003, with the
public disclosures concerning the Niger forgeries and the Bush
Administration=s apparent foreknowledge of them, members of
the Administration initiated a concerted campaign to coverup their own misdeeds
and taint Ambassador Wilson. The
record reflects that (i) members of the Bush Administration were highly
concerned about the disclosures to the point of obsession and, as a result,
obtained classified information regarding Ambassador Wilson and his wife that
they leaked to the press, in apparent violation of administrative requirements
and non-disclosure agreements (if not criminal laws); (ii) the leak was not only
in apparent retribution against the Wilsons, but also was damaging to national
security; and (iii) the investigation into the leak was delayed by members of
the Bush Administration, beset by conflicts of interest, and accompanied by
numerous misstatements and falsehoods.[675] The leak story culminated in the federal
criminal indictment, issued by Special Counsel Patrick Fitzgerald, of I. Lewis
(AScooter@) Libby, Vice President Cheney=s Chief of Staff (the ALibby Indictment@).[676]
According to the Libby Indictment, numerous
media stories and inquiries into the Administration=s use of faulty intelligence led to this
consternation in the White House.
Articles were published in The New York Times,[677]
The Washington Post,[678]
and The New Republic,[679]
among others.[680]
Clearly, this media onslaught B aimed directly at one of the Bush
Administration=s principal rationales for the war and
challenging its veracity B caused considerable turmoil in the White
House. For example, after he
finished a discussion on this issue with Matthew Cooper on July 11, 2003, Karl
Rove expressed alarm over the damage this line of inquiry could cause the
President, writing in an e-mail to Deputy Security Advisor Stephen Hadley: AWhen [Cooper] finished his brief heads-up he
immediately launched into
According to White House sources, Libby
became enraged over
Instead of responding to these charges in an
above board and factual manner, officials in the Bush Administration chose to
cover up their earlier deceptions by using their positions of authority to
obtain classified information to undermine and attack Ambassador Wilson and his
wife. According to the Libby
Indictment and other sources, this was done in apparent violation of relevant
administrative requirements, non-disclosure agreements, and potentially the
criminal laws.
The Libby Indictment makes clear that Mr.
Libby obtained classified information about Ambassador Wilson=s trip, and his wife, from at least six
sources within the government, including Vice President Cheney himself. This began on May 29, 2003, when Libby
sought information concerning
Significantly, Libby was not the only
individual in the White House soliciting or receiving information about
Ambassador Wilson=s wife in the wake of the disclosures about
possible Bush Administration wrongdoing and misstatements. The record indicates that numerous
additional officials, including Vice President Cheney,[692]
Secretary of State Powell,[693]
and Political Director Rove,[694]
were also obtaining access to classified information concerning
Once these various high-ranking
Administration officials obtained this information that they believed would help
with damage control on the embarrassing
Even more significantly, although Mr. Libby
and the other members of the Administration had to know the information was
classified (the Libby indictment includes numerous references that make it clear
that Valerie Plame=s employment at the CIA is classified),[700]
they nevertheless widely shared this damaging information with the press. Thus, for example, before
Novak=s column ran, at least four Administration
officials (Mr. Libby, Mr. Rove, and two still as of yet unknown
Administration officials) called at least five
· Washington Post Assistant Managing Editor Bob Woodward testified that yet another senior Administration official told him about CIA operative Valerie Plame and her position as early as May 2005, one month before her name was disclosed.[701]
·
AOn
or about June 23, 2003, Libby met with New York Times reporter Judith
Miller. . . . In discussing the
CIA=s
handling of
·
On July 8, Libby discussed with Miller
·
On or about July 10 or 11, the indictment states
that Karl Rove was one of the sources who had confirmed to Robert Novak that
Ambassador Wilson=s
wife worked for the CIA: AOn
or about July 10 or July 11, 2003, Libby spoke to a senior official in the White
House (AOfficial
A@)
who advised Libby of a conversation Official A [subsequently identified as Karl
Rove] had earlier that week with columnist Robert Novak in which Wilson=s
wife was discussed as a CIA employee involved in Wilson=s
trip. Libby was advised by Official
A that Novak would be writing a story about
·
On July 11, in the morning, Karl Rove had a short
conversation with Time magazine reporter Matthew Cooper. Rove told Cooper that
·
On July 12, in the afternoon, Libby spoke by
telephone to Matthew Cooper, who asked whether Libby had heard that
·
AOn
or about July 12, 2003, in the late afternoon, Libby spoke by telephone with
Judith Miller of the New York Times and discussed
· On July 12, according to press reports, an administration official who has not been identified returned a call from Walter Pincus of The Washington Post. The official Aveered off the precise matter we were discussing and told me . . . [Ambassador Wilson=s trip] was a boondoggle set up by his wife,@ Pincus has written.[708]
Contrary to the arguments of many in the
Bush Administration, these disclosures to the media do not appear to have been
inadvertent or merely confirming in nature. For instance, in reference to the two
senior Administration officials who provided him with Valerie Plame
Wilson=s status as a covert operative, Bob Novak
later admitted AI didn=t dig it out, it was given to me. . . They thought it was significant, they
gave me the name and I used it.@[709]
Mr. Novak also stated on December 14, 2005, that he would be Aamazed@ if the president didn't know the source's
identity and that the public should "bug the president as to whether he should
reveal who the source is.@[710]
Also, as noted above, another administration official actually
Aveered@ at the subject at hand to bring up
Ambassador Wilson=s trip and complain that it Awas a boondoggle set up by
There is also significant evidence that, in
addition to leaking this classified information to deflect criticism from the
President and Vice-President for their false uranium and other nuclear claims,
the Bush Administration was motivated by revenge and retribution. First, we have the stunning admission,
by a Republican congressional aide, that the White House strategy with
respect to Ambassador Wilson=s charges was to Aslime and defend.@[713]
We also have the statement by the host of
MSNBC=s Hardball, Chris Matthews: AI just got off the phone with Karl Rove who
said your wife is fair game.@[714]
We also have the statement by a senior Bush Administration official that
A[the leak] was meant purely and simply for
revenge.@[715]
Asked about the motive for describing the leaks, the senior official said
the leaks were Awrong and a huge miscalculation, because
they were irrelevant and did nothing to diminish
There are numerous additional sources who
have indicated that revenge was a motivating factor behind the series of
leaks. Vince Cannistraro, a former
Chief of Operations and Analysis for the CIA=s
The Los Angeles Times reported that the Aintensity with which Libby reacted to
These leaks of classified information by
Bush Administration officials have damaged national security.[721] At his press conference on October
28, 2005, Fitzgerald stated that the leaks were Aa serious breach of the public
trust,@ and he said the disclosure of Ms.
Wilson=s status were a set-back to the Central
Intelligence Agency and its employees, at minimum as a deterrent to the
recruiting of new officers.[722] Numerous ex-CIA agents also have
confirmed the damaging nature of these politically motivated disclosures. For example, Arthur Brown, who retired
in February as the CIA=s Asian Division chief and is now a senior
vice president at the consultancy firm Control Risks Group, declared that
A[c]over and tradecraft are the only forms of
protection one has and to have that stripped away because of political scheming
is the moral equivalent to exposing forward deployed military units.@[723]
Many Republicans tried to minimize the
damage by challenging Mrs. Wilson's status as a covert agent.[724] For example, on July 17, House
Republican Whip Roy Blunt (R-MO) read from the Republican talking points and
stated, A[Y]ou know, this was a job that the
ambassador=s wife had that she went to every day. It was a desk job. I think many people in
However, many former CIA agents were
critical of Republican efforts to dismiss Ms. Plame=s job as a non-covert desk job. Larry Johnson, a former CIA analyst, and
ten other former intelligence officers wrote to congressional leaders calling
the disclosure of her name a Ashameful event in American
history.@[726]
Citing statements by Republican allies, they stated: A[I]ntelligence officers should not be used
as political footballs. In the case
of Valerie Plame, she still works for the CIA and is not in a position to
publicly defend her reputation and honor.@[727]
At a Democratic hearing on the leak, former intelligence officers
reiterated their plea that Republicans cease their attacks on Mrs. Wilson.[728]
iii. Delays, Conflicts, and
More Lies
Once it became clear that someone in the
Bush Administration had leaked classified information for political gain, rather
than move quickly to identify and dismiss and, if necessary, prosecute the
responsible parties B as had been initially promised B the Administration did the opposite. The record shows that members of the
Bush Administration delayed and encumbered the investigation and engaged in even
more lies and misstatements. In
fact, from the very outset, the Bush Administration=s handling of the leak has been rife with
political and procedural irregularities.
The Department of Justice caused serious
delays to the investigation by failing to pursue the allegations and by failing
to obtain waivers from White House personnel in a timely manner. Initially, the Department failed to open
an investigation into the leak.
Immediately after Mr. Novak=s piece was published, the CIA contacted the
Justice Department four times in the span of three weeks to (1) notify it that
the disclosure of
Unfortunately, the Department=s handling of the case was subject to
further delays and conflicts of interest.
For example, the Department waited three days before notifying the White
House of the investigation, and the then-White House Counsel Gonzalez in turn
waited eleven hours before asking all White House staff to preserve any
evidence. (Gonzales claimed that
this day was approved by the Department of Justice).[731] Moreover, any evidence employees turned
over was and continues to be screened for Arelevance@ by White House counsel, perhaps filtering
out critical information.[732] One reason given for these delays was
that the Department was Agoing a bit slower on this one because it is
so high-profile,@[733] according to FBI sources.
In addition to causing delay, other aspects
of the Department=s handling of the investigation are of
concern. For example, law
enforcement officials close to the investigation have indicated that
then-Attorney General Ashcroft was personally and privately briefed on FBI
interviews of Karl Rove, then a senior advisor to the President and now the
Deputy White House Chief of Staff.[734] At the time of these events, Mr.
Ashcroft had personal and political connections to Mr. Rove B Mr. Rove was an adviser to Mr.
Ashcroft during the latter=s political campaigns, earning almost
$750,000 for his services.[735]
Finally, on December 30, 2003, these
conflicts led the Attorney General to recuse himself from the
investigation. Then-Deputy Attorney
General James Comey became the acting Attorney General for the matter and
simultaneously appointed Patrick Fitzgerald, the U.S. Attorney for the Northern
District of Illinois, as a special counsel to lead the investigation.[736]
However, even Mr. Fitzgerald=s appointment did not stop the
Administration=s efforts to delay the investigation. Mr. Fitzgerald encountered numerous
problems, including Administration officials= failure to execute waivers of
privilege. For example, Mr.
Libby=s initial failure to execute a clear and
unequivocal waiver of privilege to Judith Miller significantly delayed and
impeded Mr. Fitzgerald=s investigation.[737] Indeed, in a March 2005 filing with the
court hearing the case, Mr. Fitzgerald stated he could not close the matter
because of Ms. Miller=s inability to testify about conversations
with senior government officials.[738] Looking back at the investigation
on the day the grand jury expired, Mr. Fitzgerald noted that witnesses had not
been able to testify when subpoenas were issued in August 2004, lamenting that
Awe would have been here in October 2004
instead of October 2005.@[739]
Members of the Bush Administration also have
sought to coverup their own misdeeds through a series of lies and
misstatements. First, the White
House Press Secretary repeatedly provided false information to the American
people about the leak and the investigation. At a minimum, this occurred in exchanges
on September 29, 2003,[740]
and on October 7, 2003,[741]
which together contain at least eight falsehoods by Mr.
McClellan.
With regard to Karl Rove being Ainvolved@ in the leak, Mr. McClellan asserted (i)
that it was a Aridiculous suggestion@; (ii) that Ait=s not true@; (iii) Athat he was not involved@; and (iv) Athere=s no truth to the suggestion that he
was.@
With regard to whether Scooter Libby, Karl Rove, or Elliot Abrams
Awere the leakers,@ Mr. McClellan also claimed (v) it was a
Aridiculous suggestion@; (vi) Ait is simply not true@; (vii) AI=ve said its not true@; and (viii) Athere is simply no truth to that
suggestion. And I have spoken with
Karl about it.@
In addition to Mr. McClellan=s false statements, Mr. Rove also made
direct misstatements to the public.
Asked on September 29, 2003 whether he had Aany knowledge@ of the leak or whether he leaked the name
of the CIA agent, Rove answered ANo.@[742]
There is also clear evidence that Vice
President Cheney Amisspoke@ on national television when he denied any
knowledge of who sent Mr. Wilson to
The President himself appears to have
mislead the American people regarding this cover-up when, among other things, he
revoked his pledge to dismiss any and all leakers from his Administration. On September 30, 2003, when President
Bush was asked about the matter and Rove=s involvement in it, the President flatly
declared: AListen, I know of nobody B I don=t know of anybody in my administration who
leaked classified information. . . .
If somebody did leak classified information, I=d like to know it, and we=ll take the appropriate action. And this investigation is a good
thing.@[745]
The President was even more definitive on
June 10, 2004, in the middle of his re-election campaign:
Q.
Do you stand by your pledge to fire anyone found to have done
so?
THE PRESIDENT: Yes.[746]
Despite these promises, on July 18, 2005, as
it became increasingly clear that senior White House officials played a role in
the leak, the President made it far less likely that the leakers would be
subject to administrative discipline.
At a press conference with the Prime Minister of India, President Bush
stated, Aif someone committed a crime, they will no
longer work in my administration,@[747] a stunningly low threshold for ethics.[748]
b. Other
Instances of Bush Administration Retribution Against its Critics
AThe White House press office is under new
management and has become slightly more aggressive about contacting
reporters.@[749]
-----July 16, 2003, Conservative Blogger
Matt Drudge, describing how the Bush Administration gave him information in
order to out a reporter as gay who had interviewed United States troops
frustrated with the Iraq War.
Beyond the Asliming@ of Ambassador Wilson, the Bush
Administration appears to have engaged in a coordinated assault against numerous
individuals and institutions that dared to challenge the
Administration=s assertions and conclusions about the
The list of persons who have suffered this
fate is long, ranging from former General Shinseki, who was Asidelined for questioning the
administration=s projections about needed troop strength in
i. Former
General Eric Shinseki and Others in the Military
Former General Eric Shinseki, Chief of Staff
of the United States Army, was punished and undermined for contradicting Donald
Rumsfeld=s pre-war assessment of troop needs in
This, however, was very different from what
the Defense Department had been telling Congress and the American public, as it
had put the figure for occupation troop needs closer to 100,000 troops. Deputy Defense Secretary Paul Wolfowitz
called Shinseki=s estimate Awildly off the mark@ and said AI am reasonably certain that
General Shinseki refused to back down from
his honest B and ultimately correct B
estimate. A spokesman for
the General, Col. Joe Curtin, stated, AHe was asked a question and he responded
with his best military judgment.@[758]
And, in another congressional hearing, General Shinseki stated that the
number Acould be as high as several hundred
thousand. . . . We all hope it is
something less.@[759]
In the end, General Shinseki=s comments, and his willingness to say them
publicly, cost him his job worth and status. In revenge for his comments, Defense
Department officials leaked the name of Shinseki=s replacement 14 months before his
retirement, rendering him a lame duck commander and Aembarrassing and neutralizing the
Army=s top officer.@[760]
As one person who engaged in high-level planning for both wars said,
AThere was absolutely no debate in the normal
sense. There are only six or eight
of them who make the decisions, and they only talk to each other. And if you disagree with them in public,
they=ll come after you, the way they did with
Shinseki.@[761]
Shinseki Adared to say publicly that several hundred
thousand troops would be needed to occupy
A situation similar to that of General
Shinseki was the retaliation against Major General John Riggs. Major General Riggs gave an interview
with The Baltimore Sun saying the army needed at least another 10,000
soldiers because it was being stretched too thin between
Another victim of the
Administration=s attacks was Army Spc. Thomas Wilson, a
31-year-old member of a Tennessee National Guard unit. After asking Donald Rumsfeld why vehicle
armor was still scarce nearly two years after the start of the war, Mr. Wilson
was trashed as an insubordinate plant of the Aliberal media.@[768]
ii.
Former Secretary of Treasury Paul O=Neill and Economic Adviser
Lawrence Lindsey
Former Secretary of Treasury Paul
O=Neill was punished twice by the
Administration, once for opposing Bush=s tax policy, for which he was forced to
resign in January 2003,[769]
and later for providing a first hand account of the Administration=s decision-making process in the lead up to
the Iraq war. In AThe Price of Loyalty,@ written by former Wall Street
Journal reporter Ron Suskind, O=Neill recounts how the Administration was
discussing plans for going to war in
Before the book was published, Donald
Rumsfeld called Secretary O=Neill and tried to persuade his longtime
friend not to go through with the project.
Rumsfeld labeled it a Asour grapes@ book.[773] But when Mr. O=Neill went through with the book, the
Administration sought to discredit him by launching an investigation into his
use of classified documents and whether he shared them with 60 Minutes in
his interviews.[774] As Paul Krugman of The New York
Times points out, the Administration Aopened an investigation into how a picture
of a possibly classified document appeared during Mr. O'Neill's TV interview.[775]
The investigation did not uncover any
improprieties.[776] The Treasury Department=s inspector general reported that although
O=Neill received the classified material after
his resignation, the lapse was the fault of the department, not O=Neill.[777] It is noteworthy now sharply this
contrast with evident lack of concern when a senior administration official,
still unknown, blew the cover of a C.I.A. operative because her husband had
revealed some politically inconvenient facts.@[778]
The Administration also sought to minimize
O=Neill=s role as a high-level official and painted
him to be completely out of step with reality. As one writer observed, AO=Neill's revelations have not been met by any
factual rebuttal. Instead, they
have been greeted with anonymous character assassination from a >senior official=:
>Nobody listened to him when he was in
office. Why should anybody
now?=@[779]
Press Secretary Scott McClellan said
AWe appreciate his service, but we are not in
the business of doing book reviews. . . .
It appears that the world according to Mr. O'Neill is more about trying
to justify his own opinion than looking at the reality of the results we are
achieving on behalf of the American people.@[780]
Another senior Administration official stated, AThe Treasury Secretary is not in the
position to have access to that kind of information, where he can make
observations of that nature . . . This is a head‑scratcher."[781]
The Administration also went after former
senior White House economic adviser Larry Lindsey. Mr. Lindsey angered the White House in
September 2002 when he made a prescient prediction that a war with
The Administration personally attacked
Richard Clarke, the former counterterrorism czar, for publishing a book in which
he recounted how the Bush Administration was fixated on invading
Clarke also stated that his team
substantively examined whether there was a connection between
Because of these revealing accounts, the
Bush Administration went into attack mode in an attempt to discredit and smear
Clarke. Dan Bartlett, White House
communications director, dismissed Clarke=s accounts as Apolitically motivated,@ Areckless,@ and Abaseless.@[789]
Scott McClellan, President Bush=s spokesman, portrayed Clarke as a
disgruntled former employee:
AMr. Clarke has been out there talking about
what title he had . . . He wanted
to be the deputy secretary of the Homeland Security Department after it was
created. The fact of the matter is,
just a few months after that, he left the administration. He did not get that position. Someone else was appointed.@[790]
National Security Adviser Condoleezza Rice alleged that: ADick Clarke just does not know what he is
talking about. He wasn't involved
in most of the meetings of the Administration.@[791]
Vice President Cheney stated that Clarke Awasn=t in the loop, frankly, on a lot of this
stuff . . . It was as though he
clearly missed a lot of what was going on.@[792]
Even Republican Majority Leader Bill Frist went after Clarke, saying
A[i]n his appearance before the 9/11
commission, Mr. Clarke=s theatrical apology on behalf of the nation
was not his right, his privilege or his responsibility. In my view it was not an act of
humility, but an act of supreme arrogance and manipulation.@[793]
The Bush Administration=s smear campaign against Clarke was widely
discussed. As Joe Conason, a
political commentator and journalist, stated, A[A]dministration officials have been
bombarding him with personal calumny and abuse. They have called him an embittered
job-seeker, a publicity-seeking author, a fabricator, a Democratic partisan and,
perhaps worst of all, a friend of a friend of John Kerry.@[794]
Sidney Blumenthal noted, AThe controversy raging around
Clarke=s book B and his testimony before the 9/11
commission that Bush ignored warnings about terrorism that might have prevented
the attacksBrevolves around his singularly unimpeachable
credibility. In response, the Bush
administration has launched a full-scale offensive against him: impugning his
personal motives, claiming he is a disappointed job-hunter, that he is publicity
mad, a political partisan . . . as well as ignorant, irrelevant and a
liar.@[795]
The Administration=s attacks were seriously questioned by those
who were aware of Clarke=s qualifications. One journalist described the White
House=s attacks as Adesperate@ because Afor the first time since the September 11
attacks, Bush=s greatest accomplishments have been
credibly recast as his greatest failures.@[796]
Cindy Sheehan, founder of Gold Star Families
for Peace, is the mother of Casey Sheehan, a church group leader and honor roll
student who enlisted in 2000 before the September 11 attacks. At the age of 24, on April 4, 2004,
Casey died in a rescue mission with six other soldiers in
After the death of her son, Ms. Sheehan
became an active leader and participant in protesting the
Instead of meeting with Sheehan,[798]
the Administration and other conservative media outlets began to attack
Sheehan. Columnist Maureen Dowd
noted that the ABush team tried to discredit >Mom= by pointing reporters to an old article in
which she sounded kinder to W. If
only her husband were an undercover C.I.A. operative, the Bushies could out
him. But even if they send out a
squad of Swift Boat Moms for Truth, there will be a countering Falluja Moms for
Truth.@[799]
The attacks continued as Fred Barnes of
Fox News labeled Sheehan a Acrackpot.@[800]
Conservative blogs then started talking about Sheehan=s divorce. AThe right-wing blogosphere quickly spread
tales of her divorce, her angry Republican in-laws, her supposed political
flip-flops, her incendiary sloganeering and her association with known
ticket-stub-carrying attendees of >Fahrenheit 9/11.=
Rush Limbaugh went so far as to declare that Ms. Sheehan=s >story is nothing more than forged documents
- there=s nothing about it that=s real.=@[801]
The President also joined in on the attack
by criticizing Sheehan as unrepresentative of most military families he
meets. He labeled anti-war
protestors as dangerous isolationists and stated that they advocated policies
that would embolden terrorists.
AAn immediate withdrawal of our troops in
Commenting on these typical administration
smear tactics, journalist Ahmed Amr wrote the following:
Karl Rove has let the dogs out. A vicious campaign to maul Citizen Sheehan is in play. Instead of answering her questions ‑ the right wing media hacks are focusing on her motives, her mental health, her ideology and her family. These are standard and classic Rovian tactics used to smear administration critics. The predictable pundits at FOX have taken the lead by portraying Sheehan as a treasonous >crackpot= who is exploiting the death of her son to gain fame and fortune and advance the extremist political agenda of leftist >anti‑American= groups. Hate radio stations across the nations are assailing Cindy=s integrity and questioning her patriotism.[803]
Jeffrey Kofman, an ABC reporter, was
Aouted@ by the Administration after giving voice to
frustrated soldiers in
The White House retaliated, using Matt
Drudge and his Drudge Report website as the vehicle. Drudge=s website contained the headline: AABC News Reporter Who Filed Troops Complaint
Story B Openly Gay Canadian.@[808]
When asked about the story, Drudge pointed to the White House as his
source, telling Lloyd Grove of The
It had become standard Administration
practice to discredit the messenger rather than refute the message. As columnist Frank Rich aptly stated,
Athe >outing= of Mr. Kofman (who turned out to be openly
gay) almost simultaneously with the outing of Ms. Plame points to a pervasive
culture of revenge in the White House and offers a clue as to who might be
driving it. Joshua Green reported
in detail in The Atlantic Monthly last year, a recurring feature of Mr.
Rove=s political campaigns throughout his career
has been the questioning of an >opponent=s sexual orientation.=@[811]
vi. International
OrganizationsBthe Organization for the
Prohibition of Chemic Weapons and the IAEA
Jose Bustani, a Brazilian diplomat and
former director of the Organization for the Prohibition of Chemical Weapons
(OPCW), which oversees the destruction of two million chemical weapons and
two-thirds of the world=s chemical weapon facilities, was attacked
and ultimately ousted by the Bush Administration for failing to cooperate with
the Administration=s decision to attack Iraq. Bustani began serving as director of
OPCW in 1997 and was reelected to the position of Director-General in May 2000
for the 2001-2005 term by a unanimous vote.[812]
In early 2001, Bustani sought to convince
Saddam Hussein to sign the chemical weapons convention, hoping that he would
eventually be able to send chemical weapons inspectors to
When Bustani refused,
wanted.@[817]
The Bush Administration went public with its
campaign in March 2002, moving to terminate Bustani=s tenure. On the eve of an OPCW Executive Council
meeting to consider the dismissal, Bolton personally met Bustani in
The Bush Administration also called an
unusual, special session of the OPCW member states in April 2002. Addressing the delegates, Bustani
pleaded that the conference must decide whether genuine multilateralism
Awill be replaced by unilateralism in a
multilateral disguise.@[820]
To strongarm the member nations, the
The Bush Administration also sought to
undermine the IAEA and its Director-General. After Jacques Baute, the head of the
IAEA=s
Beginning in late 2004, the White House made
a push to oust ElBaradei from the agency.
The Administration=s retaliation campaign included a complete
halt of intelligence-sharing with the agency, recruitment of potential
replacements and eavesdropping on his calls in search of ammunition to use
against ElBaradei and the IAEA.[824] As The New York Times noted,
ATensions [between the United States and the
IAEA] were so sharp that agency officials said they suspected their phones,
including Dr. ElBaradei=s, were being wiretapped by American
intelligence agencies.@[825]
Further:
For
most of the last year (2004), the Bush administration had tried to block Dr.
ElBaradei from assuming a third term as chief of the agency, a part of the
United Nations . . . The roots of the disagreement stretch back beore the
invasion of Iraq, when Dr. ElBaradei was openly skeptical of the Bush
administration=s
accusations that Saddam Hussein had rebuilt a nuclear program. No weapons of mass destruction have
since been found in
Mohamed ElBaradei and the IAEA were easily
vindicated by the international community and ElBaradei recently won the 2005
Nobel Peace Prize for his longstanding efforts.[827]
Bunnatine Greenhouse was the chief
contracting officer at the Army Corps of Engineers, the agency that has managed
much of the reconstruction work in
On June 27, 2005, Ms. Greenhouse testified
before Congress, detailing that the contract award process was compromised by
improper influence by political appointees, participation by Halliburton
officials in meetings where bidding requirements were discussed, and a lack of
competition.[830] She stated that the Halliburton
contracts represented "the most blatant and improper contract abuse I have
witnessed during the course of my professional career."[831] Days before the hearing, the acting
general counsel of the Army Corps of Engineers paid Ms. Greenhouse a visit
and reportedly let it be known that it would not be in her best interest to
appear voluntarily.[832]
On August 27, 2005, the Army demoted Ms.
Greenhouse, removing her from the elite Senior Executive Service and
transferring her to a lesser job in the corps' civil works division.[833] As Frank Rich of The New York
Times described the situation, A[H]er crime was not obstructing justice but
pursuing it by vehemently questioning irregularities in the awarding of some $7
billion worth of no‑bid contracts in
viii. The Central Intelligence
Agency and its Employees
The Bush Administration also appears to have
undermined and used the CIA and its analysts as a scapegoat for it=s own failings. In the article The Secret Way to
War, Mark Danner describes the Administration=s approach: A[Administration] officials now explain their
misjudgments in going to war by blaming them on >intelligence failures=Bthat is, on the intelligence that they
themselves politicized.@[836]
Among other things, the White House blamed
the CIA and George Tenet for the
After
Tenet=s
hedged statement about the
The CIA was also undermined when it resisted
immediate endorsement of the Administration=s theories about
In addition, when Porter Goss replaced
George Tenet as Director of the CIA, he began what one recently retired CIA
official called a Apolitical purge@ of analysts in the CIA=s Directorate of Intelligence.[843]
Several senior analysts who wrote dissenting papers were among those
purged. One former CIA official
said, AThe White House carefully reviewed the
political analyses of the DI so they could sort out the apostates from the true
believers.@[844]
We also have received information of Bush
Administration retaliation against two CIA officials who sought to provide
accurate information regarding the Administration=s inappropriate reliance on the Iraqi
defector known as ACurveball@[845] and his alleged statements regarding mobile
chemical weapons laboratories. The
first is AJerry,@ who led a CIA unit that went to
Back home . . . Jerry was Aread the riot act@ and accused of Amaking waves@ by his office director, according to the presidential commission. He and his colleague ultimately were transferred out of the weapons center. The C.I.A. was Avery, very vindictive,@ Kay said. Soon after, Jerry got in touch with Michael Scheuer . . . AJerry had become kind of a nonperson,@ Scheuer recalled of their meeting. AThere was a tremendous amount of pressure on him not to say anything. Just to sit there and shut up.@[846]
A CIA spokeswoman confirmed the account but
declined to comment further. Jerry
still works at the CIA and could not be contacted for this report. His former supervisor, reached at home,
said she could not speak to the media.
AWhat was done to them was wrong,@ said a former Pentagon official who
investigated the case for the presidential commission.[847]
Another victim was David Kay, head of the
Iraq Survey Group, which found the Bush Administration=s WMD claims to be inaccurate, including its
reliance on Curveball:
In
December 2003, Kay flew back to C.I.A. headquarters. He said he told Tenet that Curveball
was a liar and he was convinced
Finally, others in the CIA have suffered
retaliation for criticizing the Administration or calling into question the
validity or wisdom of the war. For
example, in spring 2001, Aan informant told the CIA that
c.
Ongoing Lies, Deceptions and
Manipulations
Another means by which the Bush
Administration has sought to cover up and obscure its initial misstatements
about the Iraq war is through additional and ongoing misinformation and
manipulation concerning the status of the war,[853]
including the efficacy of the occupation, the costs of the war to our nation,
and the war=s impact on terrorism.
The Bush Administration has even sought to
alter its justification for the war after the fact, and to assert that weapons
of mass destruction have been found in
From the very outset, the Bush
Administration sought to convince the American public that the
In addition, the Bush Administration has
consistently underestimated the size, intensity and strength of the Iraqi
insurgency, and overestimated the abilities of the Iraqis to defend
themselves. Thus, for example on
June 18, 2003, when asked at a Pentagon press conference about the Iraqi
resistance, Defense Secretary Rumsfeld described it as Asmall elements@ of 10 to 20 people, not large military
formations or networks of attackers, and observed that Ain those regions where pockets of
dead-enders are trying to reconstitute, Gen. [Tommy] Franks and his team are
rooting them out. In short, the
coalition is making good progress.@[855]
More than two years later, on June 20, 2005, Vice President Cheney
stated, in a CNN interview, AThe level of activity that we see today from
a military standpoint, I think, will clearly decline. I think
they=re in the last throes, if you will, of the
insurgency.@[856]
With regard to Iraqi troop capabilities, on
March 14, 2004, Donald Rumsfeld stated: AWe=re making very good progress with respect to
the Iraqi security forces.
We=re up to over 200,000 Iraqis that have been
trained and equipped, and are deployed and out providing
security . . . [t]he essential service work is going
forward, and so, too, the governance.@[857]
As recently as October 4, 2005, the President emphasized progress in
Iraqi troop preparation and claimed there were about A30 Iraqi battalions in the
lead.@[858]
The reality is far different. On June 1, 2003, former Army Secretary
James White said defense officials are Aunwilling to come to grips@ with the scale of
There
has been poor strategic thinking in this . . . [t]here has been poor operational
planning and execution on the ground.
And to think that we are going to >stay
the course,=
the course is headed over
A recently retired four-star general
admitted that A[w]e=re good at fighting armies, but we
don=t know how to do this. We don=t have enough intelligence analysts working
on this problem.@[862]
As for the number of combat-ready Iraqi
troops, less than a week before the President=s speech stating there were 30 Iraqi
battalions, his own commanders testified that the number of Iraqi battalions
capable of fighting unaided had dropped from 3 to 1.[863] Moreover, according to The New York
Times, a recently Adeclassified Pentagon assessment@ explained that Ahalf of
The Bush Administration has even gone so far
as to repeatedly take credit for killing or capturing al-Zarqawi=s second in command when, in reality,
ANew York's Daily News would quickly report,
the man in question >may not even be one of the top 10 or 15
leaders.=
By one analysis, 33 so-called >top lieutenants= of Abu Musab al-Zarqawi who have been
captured, killed or identified in the past two and a half years, with no
deterrent effect on terrorist violence in
The Bush Administration has also repeatedly
taken to highlighting turning points in the occupation, which unfortunately has
never proved true. AWe have long since lost count of all the
historic turning points and fast-evaporating victories hyped by this
president. The toppling of Saddam's
statue, >Mission Accomplished,= the transfer of sovereignty and the purple
fingers all blur into a hallucinatory loop of delusion. One such red-letter day, some may dimly
recall, was the adoption of the previous, interim constitution in March 2004,
also proclaimed a >historic milestone= by Mr. Bush. Within a month after that
fabulous victory, the insurgency boiled over into the war we have today, taking,
among many others, the life of Casey Sheehan.@[866]
At the same time, the Bush Administration
has over-promised the extent and benefits of Iraqi reconstruction. For example, in 2003, the Bush
Administration asked Congress to appropriate over $20 billion for Iraqi
reconstruction efforts and promised the funds would be used to restore oil
production to pre-war levels, increase electricity production substantially
above pre-war levels, and provide drinking water to 90% of Iraqis.[867]
Again, the reality has proven starkly
different. Representative Waxman
has found that A[o]il production remains below pre-war
levels, electricity production is unreliable and well below the goal of 6,000
megawatts of peak electricity output, and a third of Iraqis still lack access to
potable water. Billions of taxpayer dollars have been spent, but there is little
to show for the expenditures in
An analysis by USA Today, based in part on an Office of Special Inspector General for Iraq Reconstruction Report also found rampant waste, fraud and diversion of reconstruction funds:
Congress
appropriated $ 18.4 billion for
In its headlong efforts to convince
Americans of the occupation=s success, the Bush Administration has taken
several steps to insure that only positive stories come out of
Also, on October 12, 2005, the Bush
Administration went so far as to pre-stage and pre-script an event with 10
American soldiers to tout the occupation=s successes, including a soldier whose
responsibility included public affairs and press.[872] According to press accounts, Allison
Barber, Deputy Assistant to the Secretary of Defense for Internal Communication,
could be heard asking one soldier before the start:
[T]he president is going to ask you some questions. And he may ask all six of them, he may ask three of them, he might have such a great time talking to you, he might come up with some new questions . . . So what we want to be prepared for is to not, not stutter. So if there=s a questions that the president comes up with that we haven=t drilled through today, and I=m expecting the microphone to go right back to you, Captain Kennedy and you to handle.[873]
On November 30, 2005, The LA Times
first reported that the
This Pentagon propaganda program has its
roots in the Pentagon=s AOffice of Strategic Influence,@ formed in the Pentagon after the September
11 attacks, which was disbanded in February 2002 after it was planning
Ato provide news items, possibly even false
ones, to foreign news organizations.@[879]
Later in 2002, Secretary Rumsfeld told the media he gave them a
Acorpse@ by closing the Office of Strategic
Influence, but he intended to Akeep doing every single thing that needs to
be done.@[880]
As Mr. Rumsfeld predicted, the Pentagon has
continued to engage these controversial foreign propaganda activities,
outsourcing to groups such as the Lincoln Group,[881]
the Rendon Group, and Ahmad Chalabi=s INC Information Collection Program (which
provided false information regarding
Beginning November 30, 2005, and continuing
through the date of this report, President Bush has given a series of speeches
outlining the plan to win the Iraq War.
The speeches included several falsehoods and half truths. For example, Mr. Bush claimed Iraqi
troops control major areas of
ii. Cost of the War
and Occupation
The Bush Administration is also guilty of
severely underestimating the costs of the war and occupation, in terms of lives
expenditures, and in its impact on our armed forces. For example, in December 2002,
administration officials estimated the cost of the war to be in the range of $50
to $60 billion.[886] In fact, in 2003, Deputy Defense
Secretary Paul D. Wolfowitz said Iraq=s oil revenues Acould bring between $50 and $100 billion
over the course of the next two or three years . . . [w]e=re dealing with a country that can really
finance its own reconstruction, and relatively soon,@ he told a House committee.[887]
In terms of financial costs, the reality
goes well beyond the more than $277 billion already appropriated for the war.[888] When taking into account weapon
replacement costs, veterans= benefits and deficit financing, one budget
expert pegged the costs as $1 trillion.[889] Basic running costs of the current
conflicts are $6 billion a month.
Factors keeping costs high include almost exclusive reliance on expensive
private contractors, costs for military personnel serving second and third
deployments, extra pay for reservists and members of the National Guard, as well
as more than $2 billion a year in additional foreign aid to reward cooperation
in
iii. Ongoing Deceptions
Regarding Weapons of Mass Destruction and the Decision to Go to
War
The Bush Administration has also
disseminated a series of confusing if not outright deceptive statements
concerning why the nation went to war and the status of
For example, on June 15, 2005, when asked
about the veracity of the July 23, 2002 Downing Street Minutes, President Bush
argued, ANothing could be farther from the truth . .
. Both of us didn't want to use our military. Nobody wants to commit military into
combat. It's the last
option.@[892]
As noted above, the President has refused to
respond to a letter from Representative Conyers and 121 other Members of
Congress, and more than 500,000 Americans, asking him to respond to the charges
inherent in the
The Bush Administration also stubbornly
insisted that there were weapons of mass destruction even though none were found
in
The truth of course is that no weapons of
mass destruction have been found.
The Iraq Survey Group has concluded that it was unlikely that chemical or
biological stockpiles existed prior to the war. As Dr. David Kay testified: AI'm personally convinced that there were not
large stockpiles of newly produced weapons of mass destruction. We don't find the people, the documents
or the physical plants that you would expect to find if the production was going
on.@[897]
The Bush Administration also untruthfully
claimed that there was no disagreement as to whether
The Bush Administration also sought to
convince the American public that its rationale for war was the existence of
weapons of mass destruction Aprograms,@ despite the fact that before the war the
Administration was claiming the justification was B links to the September 11 attacks and
weapons of mass destruction. Thus,
after he could no longer credibly assert that weapons of mass destruction were
in
The Bush Administration later sought to drop
the weapons of mass destruction rationale entirely and substitute entirely new
justifications. As The
Washington Post summarized, AAs the search for weapons in
The Bush Administration=s hurried B and incorrect B claims regarding alleged Iraqi mobile
chemical weapons laboratories found in April and early May 2003 is
illustrative. At that time, the CIA
and DIA issued a report stating that the trailers were for making biological
weapons and dismissed claims by senior Iraqi scientists that the trailers were
used to make hydrogen for the weather balloons that were then used in artillery
practice.[906] Although intelligence experts disputed
the purpose of these trailers, senior administration officials, including Colin
Powell, repeatedly asserted that the trailers were mobile biological weapons
laboratories. On May 22, 2003,
Secretary Powell said, ASo far, we have found the biological weapons
vans that I spoke about when I presented the case to the United Nations on the
5th of February, and there is no doubt in our minds now that those vans were
designed for only one purpose, and that was to make biological
weapons.@[907]
The reality is, in August 2003, The New
York Times reported that a majority of engineers from the DIA concluded in
June that the vehicles were likely used to chemically produce hydrogen for
artillery weather balloons, as the Iraqis had claimed.[908] Their work had not been completed at the
time of the CIA/DIA paper.
[A] government official from a different agency said the issue of the trailers had prompted deep divisions within the Defense intelligence Agency. The official said members of the engineering team had been angry that the agency issued the joint white paper with the CIA before their own work was completed.[909]
The analysts of other agencies had also come
to this conclusion. A former senior
intelligence official reported that Aonly one of 15 intelligence analysts
assembled from three agencies to discuss the issue in June endorsed the white
paper conclusion.@[910]
An official British investigation has also
concluded that the trailers were not mobile germ warfare laboratories, but were
actually for the production of hydrogen gas.[911] The Iraq Survey Group confirmed these
accounts, according to Dr. Kay=s January 28, 2004, testimony: A[T]he consensus opinion is that when you
look at these two trailers, while [they] had capabilities in many areas, their
actual intended use was not for the production of biological
weapons.@[912]
Dr. Kay also explained that the trailers Awere actually designed to produce hydrogen
for weather balloons, or perhaps to produce rocket fuel.@[913]
In their comprehensive investigation
concerning chemical weapons claims in
AThe equipment was singularly inappropriate@ for biological weapons, he said. AWe were in hysterics over this. You=d have better luck putting a couple of dust bins on the back of the truck and brewing it in there.@[919] The trucks were built to generate hydrogen, not germs, he said. But the CIA refused to back down. In March 2004, Killip quit, protesting that the CIA was covering up the truth. Rod Barton, an Australian intelligence officer and another bio-weapons expert, also quit over what he said was the CIA=s refusal to admit error.[920]
The Bush Administration also continues to
refuse to accept responsibility for false claims regarding aluminum tubes and
links between al Qaeda and
As for the proposed meeting between Mohammed
Atta and Iraqi intelligence, Vice President Cheney refused to acknowledge his
misstatements. In June 2004, he
stated that Awe just don=t know whether the meeting took
place.@[923]
Similarly, when Gloria Borger interviewed the Vice President on CNBC
about his earlier claim, Mr. Cheney denied three times that he had ever said it
had been Apretty well confirmed,@[924] even though he had used those precise words
on Meet the Press, on December 9, 2001.[925]
The President has also attempted to assert
that notwithstanding the Administration=s unique access to intelligence information,
it was not alone in believing
The truth, however, is that the
Administration has access to far greater information than Congress B including the President=s daily brief B and Congress is totally reliant on the
Administration for intelligence manipulation, much of which cannot be
discussed. As for the charges about
the Clinton Administration and foreign governments, the information provided to
President Clinton regarding Iraq would have been several years out of date;
while foreign governments not only had differing information, but this
information was completely at odds with what the Bush Administration was
saying. As The New York
Times wrote,
Mr.
Clinton looked at the data and concluded that inspections and pressure were
working - a view we now know was accurate.
As for the assertions of exoneration by
independent reviews, the Senate Intelligence Committee has not yet conducted a
review of pre-war intelligence information, while Judge Silberman wrote as
follows when he issued his report:
AOur executive order did not direct us to
deal with the use of intelligence by policymakers, and all of us were agreed
that that was not part of our inquiry.@[929]
iv. Impact of the
The Bush Administration has also attempted
to convince the American public that the
Again, the reality is far different. As a matter of fact, there have been
twice as many terrorist attacks outside
5. Thwarting
Congress and the American Public: The Death of Accountability under the Bush
Administration and the Republican-Controlled Congress
Both the Bush Administration and the
Republican-controlled Congress have made it difficult if not impossible for
Democrats or the American people to obtain meaningful information or oversight
concerning the various abuses and misuse of power described in this
Report.
a.
Determination to Go to War Without Congressional
Authorization
AThe decline of oversight hearings on Capitol
Hill reflects what many of the commentators called a loss of institutional pride
in Congress. Majority Republicans see themselves first and foremost as members
of the Bush team -- and do not want to make trouble by asking hard
questions.@
-----September 4, 2005, David
With regard to the charges that the Bush
Administration made a decision to go to war well before seeking congressional
authorization, the Administration and congressional Republicans have rejected or
ignored every request to obtain information on this matter. This includes efforts to obtain
information by letter, through hearings, and by way of Resolution of Inquiry.[935]
Numerous letter requests have been ignored
by the Administration. For example,
on May 5, 2005, Representative Conyers and 89 other Members wrote to the
President asking him five questions:
1.
Do you or anyone in your Administration dispute the accuracy of the
leaked
document?
2.
Were arrangements being made, including the recruitment of allies, before
you sought Congressional authorization [to] go to war? Did you or anyone in your Administration
obtain
3.
Was there an effort to create an ultimatum about weapons inspectors in
order to help with the justification for the war as the minutes
indicate?
4.
At what point in time did you and Prime Minister Blair first agree it was
necessary to invade
5.
Was there a coordinated effort with the
To date, no response has been received.[937] In addition to the congressional
letter, on June 16, 2005, more than 500,000 citizens joined in this request for
information from the President, which Representative Conyers and several
other Members hand delivered to the White House. Again, there has been no response.
Also, on May 31, 2005, Representative
Conyers wrote a letter to Secretary of Defense Rumsfeld requesting a response to
reports that British and
In addition, Democrats submitted a request
for hearings to the various committees of jurisdiction to seek oversight of
these serious charges. On June 30,
2005,
52 members formally requested that the House Committees on Judiciary, Armed
Services, International Relations, and the Permanent Select Committee on
Intelligence commence hearings on the Downing Street Minutes.[940] None of the committee chairs responded to
this letter. Similarly, on June 22,
2005, Senator Kerry and other Senators urged the
Senate Select Committee on Intelligence to investigate pre-war intelligence
failures, noting that the Acommittee=s
efforts have taken on renewed urgency given recent revelations in the United
Kingdom regarding the apparent minutes of a July 23, 2002, meeting between Prime
Minister Tony Blair and his senior national security advisors.@[941] In a convoluted response, Senator Pat
Roberts indicated that Athe
opinions of a British government official as expressed in the >Downing
Street Memo=
are not pertinent to the Committee=s
inquiry on
The
Administration has also been elusive in response to Democratic attempts to
obtain answers through the Freedom of Information Act. On June 30, 2005, Representative
Conyers and 51 other members of Congress submitted several FOIA requests to the
Administration, seeking any and all documents and materials concerning the
Downing Street Minutes and the lead up to the
Democrats have also proposed seeking
information via a non-binding request for information known as a AResolution of Inquiry.@
Congresswoman Barbara Lee and 26 cosponsors filed a resolution requiring
the White House and State Department to Atransmit
all information relating to communication with officials of the
b.
Manipulation of the Intelligence to Justify the War
The Administration has failed to address the
most important questions regarding the manipulation of intelligence to justify
the war in
Democrats first sought answers by writing
letters to the Administration.
Representative Waxman, for example, has sent numerous letters seeking
information about officials= knowledge of false nuclear claims and any
efforts to mislead the public, including two to National Security Advisor
Condoleezza Rice,[947]
one to Secretary of State Colin Powell,[948]
and two to the President.[949]
In general, the Administration=s responses to these letters, or lack
thereof, have been wholly inadequate.[950]
Democrats have also asked for independent
reviews. For example, on February
2, 2004, House Minority Leader Pelosi, Senate Minority Leader Daschle, Senators
Rockefeller and Lieberman and Representative Waxman called for a congressionally
appointed commission to examine the intelligence used to justify the
In addition, Democrats
have sought meaningful congressional oversight, particularly once it became
apparent that the Senate Intelligence Committee under Chairman Roberts did not
intend to investigate whether the Bush Administration used and exaggerated the
faulty intelligence.[952]
In response, Democrats wrote several letters demanding the investigation
take place. For example, Senator
Jay Rockefeller, Ranking Member on the Intelligence Committee, said in a
statement that he expected Phase II to be completed: AThe Chairman agreed to this investigation
and I fully expect him to fulfill his commitment.@[953] And Senator Feinstein wrote a letter to
Senator Roberts in July 2005, stating: AI am increasingly dismayed by the delay in
completing the Committee=s >Phase II= investigation into intelligence prior to
the Iraq War.@[954]
However,
it was not until Senator Reid forced a closed session of the Senate on November
1, 2005 B a
tactic not employed for six years B
that Senator Roberts finally agreed to complete Phase II of the investigation,
although it is still unclear whether the review will be meaningful.[955]
In the House, Representative Jane Harman,
Ranking Member of the Permanent Select Committee on Intelligence, sought a
formal investigation into the following aspects of pre-war intelligence: (1) the pressure felt by intelligence
professionals to conform their analysis to policy judgments of the
Administration; (2) the presentation of competing, differing, or dissenting
views; (3) the conduct of intelligence professionals in response to statements
by policymakers that purported to characterize intelligence; and (4) the
development of public presentations purported to be based on intelligence.[956] During a press conference on November
10, 2005 and in a letter on that same date, Chairman Peter Hoekstra flatly
rejected Harman=s request to commence an investigation into
the manipulation of pre-war intelligence.[957]
Democrats have also requested hearings. Congressman Henry Waxman, for example,
requested hearings in the Government Reform Committee[958]
and the Intelligence Committee[959]
concerning issues of intelligence manipulation. Similarly, Congressman Nadler requested
hearings in the Judiciary Committee to discuss whether the Administration
manipulated intelligence in order to make a case for war.[960] These requests have been ignored by all
three Republican Chairmen.
Democrats have also attempted to gain
information by use of Privileged Resolutions and Resolutions of Inquiry. Leader Pelosi offered a Privileged
Resolution in early November that called for Athe Republican Leadership and Chairmen of
the committees of jurisdiction to comply with their oversight responsibilities,
demand[ed] they conduct a thorough investigation of abuses relating to the Iraq
War, and condemn[ed] their refusal to conduct oversight of an Executive Branch
controlled by the same party, which is in contradiction to the established rules
of standing committees and Congressional precedent.@[961]
Pelosi explained that the resolution was necessary because the House was
faced with, among other things, a ARepublican Leadership and Committee Chairmen
[who] have repeatedly denied requests by Democratic Members to complete an
investigation of pre-war intelligence on
In
addition, Representatives
Hinchey, Waxman, and Conyers introduced a resolution on November 10, 2005, that
would require the White House to provide Congress with all drafts and documents
related to the crafting of the State of the Union address.[964] The resolution also sought drafts and
related documents surrounding the October 2002 speech given by President Bush in
which he discussed a possible mushroom cloud from an Iraqi nuclear weapon.[965] The Resolution was referred to the
Committee on International Relations and was considered on December 9,
2005. The Committee deadlocked in a
24-to-24 tie vote when one Republican, Representative Leach of
c. Encouraging
and Countenancing Torture
In May 2004, the world was shocked when
photos of torture and humiliation of Iraqi detainees in Abu Ghraib prison were
leaked to the press. Since then,
Democrats have been trying to obtain information through requests for hearings
and documents, requests for independent reviews and commissions, and Resolutions
of Inquiry. Democrats, however,
have been stonewalled at every turn.
Democrats began by asking the relevant
committee chairmen to conduct hearings and investigations. After it became
apparent that the House Armed Services Committee would not conduct a full and
complete investigation, on June 17, 2004, Congressman Conyers and other
Democratic Members of the House Judiciary Committee wrote to Chairman
Sensenbrenner asking that the Committee Aformally request from the Administration all
executive branch memoranda, orders, and rules analyzing and implementing the
Geneva Conventions, the 1994 Convention Against Torture, customary international
law on torture, and federal torture statutes as they apply to detainees in
Afghanistan, Iraq, and Guantanamo Bay.@[967]
Chairman Sensenbrenner did not reply. In addition, Representative Waxman
requested that the Government Reform Committee hold hearings about allegations
that private contractors participated in torture of Iraqi detainees.[968] No response was
received.
After Democrats were rebuffed by the
relevant committees, the Ranking Members of six committees wrote a letter to the
President requesting that he provide assistance in obtaining key documents
concerning torture and other alleged abuse.[969] In the letter, Democrats listed 35 items
of documents that are needed to conduct a full and transparent
investigation. The President never
responded.
With regard to requests for independent
commissions and reviews, Democrats have written to both Attorneys General
Ashcroft and Gonzales on May 20, 2004 and May 12, 2005, respectively, asking for
the appointment of a special counsel to investigate whether there had been
violations of the War Crimes Act or the Anti-Torture Act.[970] The DOJ denied both requests with little
in the way of explanation. It was
not until July 11, 2005, over a year after the original letter, that the
Department of Justice responded to the Ashcroft request.[971]
In addition, Democrats asked for the
creation of an independent commission.
On November 4, 2005, Senator Levin and others introduced an amendment to
the National Defense Authorization Act that would have established a national
commission on policies and practices on the treatment of detainees since
September 11, 2001.[972] The amendment was defeated on the Senate
floor by a vote of 43-55.[973] In the House, Representative Waxman,
Democratic Leader Pelosi, and other senior Democrats twice introduced similar
legislation to establish an independent commission. The first resolution, H. Res.
690,[974]
was introduced in June 2004, and the second, H.R. 3003,[975]
was introduced in June 2005.
Neither of these pieces of legislation ever received a hearing or a vote
on the House floor.
Democrats have also attempted to obtain
information by introducing Resolutions of Inquiry. In June 2004, Congressman Conyers and 47
other Members of Congress introduced resolutions to gather information regarding
the treatment of prisoners or detainees in
Other Democratic members have also tried to
use Resolutions of Inquiry to obtain information on torture. For example, on May 12, 2004,
Congressman Bell introduced H. Res. 640, which requested the Secretary of
Defense to provide Aany picture, photograph, video,
communication, or report produced in conjunction with any completed Department
of Defense investigation conducted by Major General Antonio M. Taguba relating
to allegations of torture or allegations of violations of the Geneva Conventions
of 1949 at Abu Ghraib prison in Iraq or any completed Department of Defense
investigation relating to the abuse or alleged abuse of a prisoner of war or
detainee by any civilian contractor working in Iraq who is employed on behalf of
the Department of Defense.@[979]
The Resolution was referred to the Committee on Armed Services and was
voted down.[980]
Democratic efforts have been particularly
important given the fact that the Bush Administration=s purported investigations into the
allegations of torture have been largely non-responsive. While there have been a number of
investigations into the treatment of Iraqi prisoners, each one has been limited
to distinct areas of the military chain of command, which has prevented any
inquiry into the accountability of anyone in the administration.[981] Nor were they tasked with investigating
how ideas and direction for abuse moved amongst different units, and between
entire theaters of combat. The
Administration maintains these are all Aisolated@ events. Indeed, by setting up a dozen discrete
investigations that ignore any connections between behavior, the abuse, at first
blush, will of course continue to look like isolated events.[982]
d. Post-War
Cover-Ups and Retribution and More Deceptions
The Administration has also retaliated
against and publicly smeared those who have dared to speak out against the war
in
Congressional Democrats have written
numerous letters to the Administration regarding the Plame leak that remains
unanswered. Soon after Valerie
Plame was exposed to the public as a covert CIA operative, Democrats sought
President Bush=s assurance that White House officials would
cooperate with any investigation and would address reports that certain
officials were refusing to cooperate.[983] In addition, when it became clear that
Karl Rove may have been involved in the leak of Plame=s name, Congressman Conyers wrote a letter
to Mr. Rove asking him to resign.[984] Later, a similar letter was sent
to President Bush asking him to require Mr. Rove to explain his role in the leak
or resign.[985] To date, Rove has not been asked or
required to explain his role, and there has been no discussion of his
resignation.[986]
After Scooter Libby was indicted on October
26, 2005 for perjury and obstruction of justice for his role in the leak,
Representatives Conyers, Waxman and Hinchey wrote to Vice President Cheney and
requested that he Amake [himself] available to appear before
Congress to explain the details and reasons for [his] office=s involvement B and [Cheney=s] personal involvement B in the disclosure of Valerie
Wilson=s identity as a Central Intelligence Agency
(CIA) operative.@[987]
To date, Vice President Cheney has failed to
respond.
Congressman Conyers also asked President
Bush to pledge not to pardon anyone involved in the Plame leak because of a
concern that the Administration=s Alow ethical standards foreshadow future
actions on [the Administration=s] part that will allow individuals
responsible for this breach of national security to evade
accountability.@[988]
Furthermore, senior Senate Democrats, including Senators Reid, Durbin,
Stabenow and Schumer, asked President Bush to pledge not to pardon anyone
convicted in connection with the leak investigation.[989] The President has not responded to
either of these requests.
Democrats have also written letters to the
Administration in an attempt to obtain information about others who have
suffered similar retaliation efforts by the Administration. For example, on August 29, 2005,
Representative Waxman sent a letter to Secretary of Defense Rumsfeld requesting
that the Department of Defense investigate the removal of Bunnatine Greenhouse
from her position as Principal Assistant for Contracting for the Army Corps of
Engineers. Representative Waxman
wrote that A[t]he decision to remove Ms. Greenhouse from
her position and demote her appears to be retaliation for her June 27, 2005
testimony before Congress.@[990]
Mr. Waxman received a response to this letter on September 27, 2005;
however, the letter is unpersuasive because it asserts that there was a
sufficient record to determine whether Greenhouse was properly removed because
General Strock's staff put together a memo. Of course, Greenhouse's allegations
specifically involved Gen. Strock and his people.[991]
In addition, in a letter dated January 14,
2004, Mr. Waxman asked Condoleezza Rice to explain Ainconsistencies in how the Administration
handles allegations regarding the release of sensitive information.@[992]
Specifically, Mr. Waxman highlighted the immediate response and
retaliation against Paul O=Neill=s television interview (where he voiced
criticism of the Administration) and contrasted it with the
Administration=s delayed handling of the Plame Leak.[993] Mr. Waxman also noted the very different
treatment given to Mr. O=Neill and Bob Woodward, whose book,
ABush at War,@ cites notes taken during more than 50
meetings of the National Security Council and both classified and unclassified
written materials. Ms. Rice never
responded to this letter.
Finally, Representative Conyers wrote a
letter to the President expressing concerns that the Department of Defense is
Aunder-reporting casualties in
Just as Administration officials ignored and
evaded Democratic efforts to reveal the truth, Congressional Republicans have
similarly blocked Democratic requests for investigative hearings. On October 30, 2003, House Judiciary
Committee Democrats wrote to Chairman Sensenbrenner asking him to hold hearings
to investigate the Plame leak.[996] After it became apparent that Karl Rove
was almost certainly involved in the leak in some capacity, Committee Democrats
asked to hold hearings a second time in a letter dated July 14, 2005.[997] Democrats never received responses to
these requests. Representative
Waxman also pursued committee hearings, requesting investigative oversight in a
letter to House Government Reform Chairman Davis on September 29, 2003.[998] Mr. Waxman tried again on October 8,
2003,[999]
December 11, 2003,[1000]
and then again July 11, 2005,[1001]
in light of mounting evidence of Rove=s involvement in the Plame outing. On October 28, 2005[1002]
and November 16, 2005,[1003]
Mr. Waxman made his fifth and sixth requests for the Government Reform Committee
to hold hearings on the Plame leak.
To date, Chairman Davis has either denied or ignored all of these
requests.
In addition to oversight into the Plame
leak, Democrats have also attempted to gain information about and hold the
Administration accountable for activities occurring in
Democrats also pursued Resolutions of
Inquiry. On July 29, 2005,
Congressman Holt, along with other Members of Congress, attempted to request the
Administration to provide information about the identity of the source of the
Plame leak.[1006] The Resolutions were referred to four
Committees, including the Judiciary Committee, the International Relations
Committee, the Armed Services Committee and the Intelligence
Committee.
The Republicans voted all of the Resolutions
down, arguing that there was an ongoing criminal investigation into the matter
and the resolutions competed with that investigation.[1007] This argument would seem to be
disingenuous given that there are numerous precedents for congressional
committees investigating concurrently with the Justice Department and with other
matters under criminal review by the Executive Branch[1008]
Bmost notably many concurrent investigations
by the Republican Congress involving the Clinton
Administration.
II. Unlawful Domestic
Surveillance and the Decline of Civil Liberties Under the Administration of
George W. Bush
A. Chronology: Democracy Without Checks and
Balances
“I
don't email, however. And there's a reason. I don't want you reading my personal
stuff. There has got to be a certain sense of privacy. You know, you're entitled
to how I make decisions. And you're entitled to ask questions, which I answer. I
don't think you're entitled to be able to read my mail between my daughters and
me.”
-----April 14, 2005, President George W.
Bush, responding to questions at an American Society of Newspaper Editors
conference in
In the days and weeks after the horrific
attacks of September 11, members of both political parties recognized the need
to insure that law enforcement had the tools and resources to respond to
terrorist threats, while at the same time respecting our Nation’s core
constitutional principles. With
that goal in mind Judiciary Committee Chairman F. James Sensenbrenner and
Ranking Member John Conyers introduced legislation that would both enhance law
enforcement while providing for necessary safeguards to protect civil
liberties.[1010] Their legislation passed the usually
contentious Judiciary Committee by a unanimous vote of 36-0 on October 3,
2001.[1011]
Unfortunately – and ominously – the Bush
Administration reneged on the bipartisan compromise and chose to go its own
route by substituting a 342-page Administration draft. The Administration’s substitute was
inserted in the middle of the night and brought to the House floor a few hours
later on October 12 with no amendments permitted. Final legislation passed the House on
October 23, in the midst of an anthrax scare while most Members and staff were
locked out of their offices and in no position to read, let alone understand,
the legislation.[1012]
Among the more controversial sections of the
PATRIOT Act added or expanded by the Bush Administration were provisions
concerning: (i) “sneak and peak”
warrants lowering the standard for the FBI to enter an individual’s home and
take property without notification;[1013]
(ii) business records permitting the FBI to obtain any record, including
medical, and library and bookstore reading information, with recipients “gagged”
from informing others they received the request;[1014]
(iii) National Security Letters (NSL’s), permitting the FBI to mandate that
businesses (including Internet and telecommunications companies) turn over
specific financial, telephone, internet and other consumer records with no
judicial oversight or approval, with recipients again “gagged” from informing
others they received the request;[1015]
and (iv) material support, permitting immigrants to be deported for donating
funds to groups they did not know had terrorist ties and by criminalizing
vaguely defined aspects of “material support” for terrorism.[1016] (Eventually, the National Security
Letter provision was held to violate the First and Fourth Amendments by two
separate courts,[1017]
while, the material support provisions were held to violate both the First
Amendment right to freedom of speech and advocacy and the Fifth Amendment right
to due process.[1018])
The enactment of the PATRIOT Act was
followed by a series of unilateral actions taken by the Bush Administration that
raised significant civil liberties and constitutional issues. For example, in the fall of 2001, the
Administration elected to close many deporatation proceedings to the public, a
practice, the Sixth Circuit held violated the First Amendment, by “seeking to
uproot people’s lives, outside the public eye, and behind a closed door. Democracies die behind closed doors.”[1019] Also, in late 2001, the Justice
Department indefinitely detained more than 1,200 individuals in the
On May 30, 2002, then Attorney General
Ashcroft unilaterally announced that the Department had made major revisions to
the guidelines that governed how it conducted investigations, removing a number
of safeguards that had been included in the guidelines adopted by Attorney
General Edward H. Levi in the wake of the Watergate and COINTELPRO surveillance
scandals.[1023] Concerning the new guidelines,
conservative columnist William Safire wrote that the Administration “gutted
guidelines put in place a generation ago to prevent the abuse of police power by
the federal government.”[1024] This in turn, contributed to a series of
instances in which the Bush Administration began investigating innocent
Americans for engaging in constitutionally protected activities, such as
protesting the war and protecting the environment.[1025] By late fall of 2002, reports began to
circulate concerning the misuse and abuse of the material witness laws, with the
principal targets again being individuals of Arab and Muslim descent.[1026]
In February, 2003, the Administration began
circulating its so-called “PATRIOT II” legislation. This bill would have, among other
things, authorized secret arrests, permitted the construction of detailed
government databases based on information concerning innocent Americans, allowed
the secret revocation of citizenship, and expanded the government’s ability to
search homes and tap phones without a warrant.[1027]
Throughout this period and his entire
presidency, George W. Bush has unilaterally claimed the authority to disregard
hundreds of laws duly passed by Congress.
The Boston Globe reported that
as of April, 2006, President Bush has “claimed the authority to disobey more
than 750 laws enacted since he took office asserting that he has the power to
set aside any statute passed by Congress when it conflicts with his
interpretation of the Constitution.[1028] Among the laws Mr. Bush asserts he can
ignore are torture bans, provisions requiring reports to Congress regarding the
implementation of the PATRIOT Act, laws against using illegally obtained
evidence, whistle-blower protections, and affirmative action requirements.[1029] Reacting to this unprecedented use of
signing statements to ignore laws passed by Congress, Phillip Cooper, a legal
expert on executive power stated, “there is no question that this administration
has been involved in a very carefully thought-out, systematic process of
expanding presidential power at the expense of other branches of government.”[1030]
There is no better illustration of the
full-blown constitutional crisis inherent in these unilateral actions taken by
the Bush Administration than the series of circumstances concerning both the
warrantless wiretapping of Americans by the Bush Administration and their
creation of a database comprised of the calls of millions of innocent citizens
(the focus of this Part of the Report).
The National Security Agency’s (NSA) warrantless wiretapping activities
were initially disclosed on December 16, 2005, by The New York Times.[1031] This disclosure raised an obvious
conflict with both the Foreign Intelligence Surveillance Act (FISA), which
applies to the “interception of international wire communications to or from any person (whether or not a
Attorney General Gonzales has asserted that
pursuant to the program, the NSA intercepts the contents of communications where
there is a “reasonable basis to believe” that a party to the communication is “a
member of al Qaeda, affiliated with al Qaeda, or a member of an organization
affiliated with al Qaeda or working in support of al Qaeda.”[1036] General Hayden, the Principal Deputy
Director for National Intelligence, has stated that the judgment of whether to
target a communication is made by operational personnel at the NSA using the
information available to them at the time,[1037]
and that judgment is made by two people, signed off only by a shift
supervisor.[1038]
In early 2004, Jack Goldsmith, the head of the DOJ
Office of Legal Counsel raised concerns with James Comey, the Deputy Attorney
General, about the legality of the program.[1039] Mr. Comey was acting as Attorney General
while John Ashcroft was in the hospital.
Mr. Comey reportedly agreed with Mr. Goldsmith that the program raised
serious legal and constitutional concerns and refused to reauthorize it. As a result, Andrew Card, then White
House chief of staff, and Albert Gonzales, then-White House Counsel, visited Mr.
Ashcroft in the hospital in a further unsuccessful effort to persuade him to
reverse his deputy.[1040] These refusals reportedly led to the
temporary shut down of the program and eventually the creation of a secret audit
of the program examining several cases to determine how the NSA was running the
program and to review the parameters for determining reasonable belief. Thereafter, DOJ and NSA are reported to
have developed a checklist to follow in determining whether “reasonable belief”
existed.[1041]
The Administration and the Department of
Justice also encountered resistance from the FISA court. Judge Colleen Kollar-Kotelly complained
that information obtained under the program was being improperly used as the
basis for FISA wiretap warrant requests.[1042] Judge Royce Lamberth, the U.S. District
Court judge who preceded Kollar-Kotelly as the head of the FISA court, also
raised doubts regarding the program.
According to government sources, “[b]oth judges expressed concern to
senior officials that the president’s program, if ever made public and
challenged in court, ran a significant risk of being declared unconstitutional .
. . . Yet the judges believed they did not have the authority to rule on the
president’s power to order the eavesdropping . . . and focused instead on
protecting the integrity of the FISA process.”[1043] As a result, in early 2002 the FISA
court and DOJ reportedly reached a compromise, by which in any case involving
warrantless surveillance where the government subsequently sought an official
FISA warrant was to be “tagged” as such, and that a FISA warrant would only be
sought based on independently gathered information presented to the presiding
judge.[1044] However, by 2004, James Baker, DOJ’s
liaison to the FISA court, was forced to acknowledge to the court that NSA was
not providing DOJ with the information needed to implement the tagging system,
and as a result, Judge Kollar-Kotelly complained to Attorney General Ashcroft,
which also reportedly helped lead to the program’s suspension.[1045] Eventually, the Department agreed that a
high-level official would certify that the information provided to the FISA
court was accurate, or face possible perjury charges.[1046] Once the program was disclosed to the
public, another judge on the court, James Robertson, became so concerned about
the program’s legality he resigned his position in protest.[1047]
After initially attempting to downplay the
significance of disclosure of the domestic spying program, the Bush
Administration realized it had a major controversy on its hands and crafted a
full-scale legal and public relations offensive. The Department of Justice was called
upon to issue an ever-expanding set of after-the-fact legal rationales – on
December 22, 2005, they wrote a four- page letter to the House and Senate
Intelligence Committees;[1048]
on January 19, 2006 they issued a 42-page “White Paper;”[1049]
and on January 27, 2006, the Department issued a 27-point “Myth vs. Fact”
memorandum.[1050]
The domestic spying program has engendered
widespread opposition, including from a number of Republicans, conservatives,
and non-partisan groups. Those who
have raised questions or challenged the legal and constitutional underpinnings
of the NSA program include: Senate
Judiciary Chairman Arlen Specter (R-PA), Senators Chuck Hagel (R-NE), Olympia
Snowe (R-ME), Richard Lugar (R-IN), Susan Collins (R-ME), John Sununu (R-NH),
Larry Craig (R-ID), Lindsey Graham (R-SC), and John McCain (R-AZ); former GOP
Congressman Bob Barr; conservative activists Grover Norquist, David Keene, and
Paul Weyrich; former Republican
officials such as Judge and former Reagan FBI Director William Sessions, former
Reagan Associate Deputy Attorney General Bruce Fein and former Nixon White House
Counsel John Dean; conservative legal scholars such as CATO’s Robert Levy and
University of Chicago Professor Richard Epstein, noted conservative columnists
William Safire, George Will, and Steve Chapman; the American Bar Association,
the Congressional Research Service, and numerous current and former members of
the Bush Administration. Among
other things, Senator Specter
stated that the Administration’s legal interpretation “just defies logic and
plain English,”[1051]
and David S. Kris, the former Associate Deputy Attorney General at the
Department of Justice for national security, issued a 23-page legal analysis
finding that the Administration’s arguments were “weak” and unlikely to be
supported by the courts.[1052]
It has also been reported that senior
members of the Bush Administration specifically sought and obtained information
from the NSA concerning the identity of American citizens who were swept up in
the warrantless surveillance program.
Newsweek reported the “NSA
received – and fulfilled – between 3,000 and 3,500 requests from other agencies
to supply the names of U.S. citizens and officials …that initially were deleted
from raw intercept reports… .About one third of such disclosures were made to
officials at the policymaking level.”[1053] One case involved John Bolton, the then
Under Secretary of State for Arms Control, who stated at his April, 2005
confirmation hearing for U.N. Ambassador that in the last four years he had
obtained from the NSA the names of American citizens on numerous occasions, in
apparent violation of NSA rules requiring the blacking out of such names when
intelligence reports are distributed. [1054]
On May 11, 2006, another aspect of the domestic spying
scandal erupted. USA Today reported that according to
individuals with first-hand knowledge, “[t]he NSA has been secretly collecting
the phone call records of tens of millions of Americans.”[1055] The newspaper reported that “[t]he NSA
program reaches into homes and businesses across the nation by amassing
information about the calls of ordinary Americans – most of whom aren’t
suspected of any crime.”[1056] According to individuals familiar with
the program, “[i]t’s the largest database ever assembled in the world,” and the
NSA’s goal is “to create a call of every call ever made” in the U.S.[1057] The NSA database program was reportedly
developed in the fall of 2001, with the cooperation of three telecommunications
companies – AT&T, Verizon, and BellSouth – under the direction of then NSA
Director General Michael Hayden.[1058] Under the program the various telephone
numbers as well as the time and destination of the calls, known as “call detail
records” are turned over to the NSA.
While the program apparently does not include specific names or
addresses,[1059]
there is little doubt the government can ascertain this information through
access to commercial databases and other sources.[1060]
The basic contours of the NSA domestic
database program have been confirmed – either directly or indirectly – by a
number of sources beyond those relied on by USA Today in their May 11 article. First and foremost, is the fact that
Qwest has provided a specific statement that they rejected the NSA’s request in
the fall of 2001.[1061] Second, although neither the President
nor his staff would officially confirm or deny the domestic database story, The New York Times reported on May 12
that “[o]ne senior government official who was granted anonymity to speak
publicly about the classified program confirmed that the N.S.A. had access to
records to most telephone calls in the
About one week after the USA Today story broke, both BellSouth
and Verizon sought to distance themselves from the NSA program in somewhat
qualified terms.[1068] However, as The New York Times noted, “the
statement by Verizon left open the possibility that MCI, the long-distance
carrier it bought in January, did turn over such records – or that the unit,
once absorbed into Verizon, had continued to do so.”[1069] With respect to the BellSouth denial, The Washington Post noted “BellSouth did
not address whether it might have provided such records outside of a contract or
to an agency other than the NSA.”[1070] Skepticism regarding these denials were
further fueled by a report in Business
Week that some companies are willing to serve as intermediaries between
telephone companies and the government,[1071]
and the disclosure of a May 5 presidential memorandum permitting the NSA to
authorize corporations to conceal activities concerning national security
without violating the securities laws.[1072]
A number of prominent conservatives and
Republicans have also expressed reservations about the NSA data base
program. Former GOP Speaker Newt
Gingrich declared, “I’m not gong to defend the indefensible.”[1073] Senator Charles Grassley (R-IA) asked
“why are the telephone companies not protecting their customers” privacy,”[1074]
and House Majority Leader John Boehner stated, “... I'm not sure why it would be
necessary to keep and have that kind of information.” [1075]
Beyond this series of disturbing events in
the
1. Domestic
Surveillance: Spying On Innocent
Americans without Court Approval and Outside of the Law
“If the lickspittle lawyer [defending the
program] thinks all this is legal, ‘he’s smoking Dutch
Cleanser.’”
-----February 7, 2006, Senate Judiciary
Chairman Arlen Specter, during an interview with The Washington Post.[1082]
As a result of our review, we have been able
to make a number of preliminary findings and determinations based on the facts
we are aware of. First, we have
found that the warrantless wiretapping program is clearly unlawful, that the
massive domestic database created by the NSA also appears to violate several
statutes, and that the limited Congressional briefings surrounding these
programs contravened the National Security Act. Just as dangerously, the legal
justifications used by the Administration to justify the warrantless wiretap
program could establish a legal precedent which provides for no meaningful
limitation on executive branch authority.
Third, in attempting to justify the programs, President Bush and other
members of the Bush Administration appear to have made a number of misleading
statements. Also, we have found
that while there is little evidence that the programs have been beneficial in
the war against terror, there is however a considerable risk they will
affirmatively harm terrorism prosecutions.
Finally, the NSA programs appear to have been implemented in a manner
designed to stifle legitimate concerns within the Administration.
a. The
warrantless wiretap program violates FISA and the Fourth Amendment, the NSA
database program appears to violate the Stored Communications Act and the
Communications Act of 1934, and the programs have been briefed in violation of
the National Security Act
The Bush Administration has laid out a
number of arguments to defend the warrantless wiretapping program disclosed by
The New York Times in December: first they claim that the program does
not violate FISA because the September 11 Use of Force Resolution authorized the
surveillance program; second, they argue that the program falls within the
President’s inherent authority as Commander-in-Chief; and third they claim that
the Fourth Amendment warrant requirement does not apply to the programs. The Bush Administration has not directly
sought to specifically defend the NSA database program, but that program appears
to be unlawful as well. They also
offer a number of non-legal justifications for the programs; namely that the
FISA procedures are too cumbersome; the NSA programs could have prevented the
9/11 attacks; and that both President Carter and
i. September
11 Use of Force Resolution
The Bush Administration has put forth four
separate legal justifications for the proposition that the so-called
Authorization for the Use of Military Force (AUMF)[1083]
authorizes warrantless wiretapping within the
Our review indicates that the overwhelming
weight of legal authority contravenes each and every one of these
assertions. First, with regard to
the claims that the AUMF resolution directly authorized warrantless wiretapping
or other surveillance in the U.S., Tom Daschle, the Senate Majority Leader at
the time the AUMF was enacted, has stated the Senate rejected a last minute
request from the White House that the AUMF authorize “all necessary and
appropriate force in the United States and against those nations, organizations
or persons [the President] determines planned, authorized, committed or aided”
the attacks of Sept. 11th.[1090] Senator Daschle explains that “this
last-minute change would have given the president broad authority to exercise
expansive powers not just overseas – where we all understood he wanted authority
to act – but right here in the United States, potentially against American
citizens.”[1091]
Republican Senator Sam Brownback (R-KS) has
concurred with Senator Daschle, stating, “I do not agree with the legal basis on
which [the Administration] are basing their surveillance – that when the
Congress gave the authorization to go to war that gives sufficient legal basis
for the surveillance.”[1092] Senate Judiciary Chairman Arlen Specter
(R-PA) has stated that “I do not think that any fair, realistic reading of the
September 14 resolution gives you the power to conduct electronic
surveillance,”[1093]
while Senator Lindsey Graham (R-SC) declared, “I will be the first to say when I
voted for it, I never envisioned that I was giving to this President or any
other President the ability to go around FISA carte blanche.”[1094] Senator John McCain (R-AZ) has stated,
“I think it’s probably clear we didn’t know we were voting for [domestic
warrantless surveillance].”[1095] Significantly, in a 44-page memorandum,
the nonpartisan Congressional Research Service has concluded that based on their
review of the law, “it appears unlikely that a court would hold that Congress
has expressly or impliedly authorized the NSA electronic surveillance operations
here under discussion.”[1096]
Moreover, it is difficult for the
Administration to credibly claim that the AUMF authorizes warrantless
wiretapping, when they have also acknowledged that Congress was not supportive
of such a proposal.[1097] On December 19, 2005, Attorney
General Gonzales stated that “[w]e
have had discussions with Congress in the past [after the September 11 attacks]
– certain members of Congress – as to whether or not FISA could be amended to
allow us to adequately deal with this kind of threat, and we were advised that
would be difficult, if not impossible.”[1098] As conservative columnist George Will
has written, “Administration supporters incoherently argue that the AUMF
authorized NSA surveillance – and that if the Administration had asked, Congress
would have refused to authorize it.”[1099] The Administration’s tepid response in
this area – they have admitted they never even bothered to inquire about the
possibility of amending FISA with Members on the Judiciary Committee which has
jurisdiction over FISA[1100]
– may in part be due to the fact that this argument was apparently developed
well after the fact.[1101] It is also imformative that efforts to
further modify FISA were either dropped because they were too controvarisal
(such as the PATRIOT II proposal)[1102]
or shot down by the Administration itself (such as the a proposal by Senator
DeWine to require only reasonable suspicion for FISA warrants).[1103]
Second, the Administration’s contention that
the Hamdi decision supports the
proposition that the AUMF authorizes the President to engage in warrantless
wiretapping is contradicted by the fact that the majority of the Court found
that Mr. Hamdi has a right to due process and that the U.S. was not permitted to
detain him for an indefinite period of time, writing, “indefinite detention for
the purpose of interrogation [of enemy combatants] ... is not authorized.”[1104] In addition, the Hamdi decision itself is limited to
operations abroad and to enemy combatants of the
Third, in its White Paper, the
Administration goes to great pains to claim that FISA contemplated exceptions to
it, and that those who dispute their interpretations are somehow arguing that
one Congress can bind a future Congress.[1107] Clearly, one Congress cannot bind a
future Congress, however that is not in dispute. The problem for the Bush Administration
is that when Congress enacted FISA in 1978, it went to great lengths to state
that FISA was the exclusive authority concerning electronic surveillance, that
the only exceptions to that law were some “technical activities,” such as
so-called “trap and trace” monitoring, and that it was intended that any future
exemptions should be clear and specific, not vague and general as is the case
with the Administration’s AUMF assertion.
As the House Committee explained in legislative history, FISA “carries
forward the criminal provisions of chapter 119 [of Title 18, U.S.C.] and makes
it a criminal offense for officers or employees of the United States to
intentionally engage in electronic surveillance under color of law except as
specifically authorized in chapter 119 of title III [of the Omnibus Crime
Control and Safe Streets Act of 1968] and this title [concerning pen register
activities].”[1108] In reviewing this legislative history,
the Congressional Research Service observed, “the legislative history appears to
reflect an intention that the phrase “authorized by statute” was a reference to
chapter 119 of Title 18 of the U.S. Code (Title III) and to FISA itself, rather
than having a broader meaning, in which case a clear indication of Congress’s
intent to amend or repeal it might be necessary before a court would interpret a
later statute as superceding it.”[1109]
Thus, while FISA certainly is subject to
amendment, it is clear that the AUMF does not come close to meeting the
standards of precision contemplated by Congress.[1110] In the present case, not only did the
AUMF not explicitly amend FISA as Congress intended, it is not even clear the
AUMF constitutes a “statute” within the meaning of FISA. As Professor Turley explained in the
House Democratic Hearing, “the Force Resolution is not a statute for the purpose
of Section 1809 [of FISA].”[1111]
The Department’s fourth assertion -- that
the cannon of constitutional avoidance should lead to an implicit statutory
repeal of FISA -- is also not legally sustainable. The case law holds such repeals by
implication can be established only by “overwhelming evidence” – which is
clearly not the case with regard to the NSA domestic wiretapping program. A 2001 Supreme Court decision held that
“the only permissible justification for a repeal by implication is when the
earlier and later statutes are irreconcilable;”[1112]
while another 2001 Supreme Court case found that “the canon of constitutional
avoidance has no applications in the absence of statutory ambiguity.”[1113] The interpretational rule which does
apply in the present case is the doctrine that specific statutes prevail over
general statutes when there is a possible conflict.[1114] Accordingly, as Judge Sessions and other
legal scholars explained, “[c]onstruing FISA and the AUMF according to their
plain meanings raises no serious constitutional questions regarding the
President’s duties under Article II . . .[c]onstruing the AUMF to permit
unchecked warrantless wiretapping without probable cause, however, would raise
serious questions under the Fourth Amendment.”[1115]
ii. Inherent
Authority as Commander-In-Chief
As an alternative to its statutory authority
argument, the Administration also claims it has authority to conduct domestic
warrantless wiretapping by virtue of the President’s “inherent” constitutional
authority as Commander-in-Chief.[1116] The Bush Administration has developed
three rationales to support this claim.
First, the Administration asserts the founding fathers intended that the
executive branch be “cloathed with all the powers requisite” to protect the
Nation,[1117]
and compares the current executive surveillance program to the intelligence
methods of President George Washington, who intercepted mail between Britain and
Americans in the revolutionary war; President Woodrow Wilson, who in WWI
intercepted cable communication between the U.S. and Europe; and President
Franklin Roosevelt, who intercepted mail after the bombing of Pearl Harbor.[1118] Second, the Administration relies on
Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer,[1119]
to argue that the President’s wartime authority to act is at it’s “zenith” with
respect to warrantless surveillance.”[1120] Third, the Administration repeatedly
cites a passage in the In re Sealed Case
that “[w]e take for granted that the President does have [inherent wiretap
authority] and, assuming that it is so, FISA could not encroach on the
President’s constitutional power,”[1121] which case in turn refers to three
earlier circuit court decisions.[1122]
The Administration’s contention that the
intent of the founding fathers supports their inherent authority argument belies
any viable understanding of the founding of the
The argument that warrantless surveillance
has been going on since as early as General George Washington does not appear to
be legally or constitutionally credible.
Not only did some of the “precedents” cited by the Administration occur
before the Constitution, Bill of Rights, or Fourth Amendment was in place, but
the cited actions by President Woodrow Wilson and Franklin Roosevelt occurred
before the Supreme Court held in 1967 that the Fourth Amendment applies to
electronic surveillance,[1128]
before FISA was enacted in 1978, and before Congress repealed a provision of law
deferring to the President with respect to foreign intelligence information.[1129]
The Administration’s argument that the Youngstown Steel decision supports the
claim of inherent authority is also legally tenuous. The holding of Youngstown Steel rejected the idea that
President Truman had inherent presidential authority to seize steel mills during
the Korean military conflict, with the Supreme Court finding that such important
questions as the authority to seize private property “is a job for the Nation’s
lawmakers, not for its military authorities.”[1130]
Properly understood, the Youngstown Steel
case severely undermines, rather than supports the Administration’s
position. In his critical
concurring opinion, Justice Jackson explained that “the presidential powers are
not fixed, but fluctuate, depending upon their disjunction or conjunction with
those of Congress,”[1131]
and that when the President defies “the expressed or implied will of Congress,”
his authority is “at its lowest ebb” and “Presidential power [is] most
vulnerable to attack and in the least favorable of possible constitutional
postures.”[1132]
In the present case, there appears to be
little doubt that the warrantless wiretapping program disclosed by The New York Times is operating against
the express as well as the implied will of Congress, and that the President is
therefore at his “lowest ebb” in terms of constitutional authority. The legislative history of FISA makes it
abundantly clear that Congress intended to and indeed did “express its will” and
“occupy the field” with respect to the area of surveillance impacting
Americans.[1133]
Thus, when Congress approved FISA in 1978, it refused to provide an exception to
enable the President to conduct warrantless surveillance involving Americans[1134]
and, as noted above, explicitly repealed the provision which the executive
branch had previously relied upon in claiming inherent presidential authority
for warrantless surveillance. [1135]
The legislative history from the House,
Senate, and Conference Report all supports this understanding. The House Report provides, “[e]ven if
the President has the inherent authority in the absence of legislation to
authorize warrantless electronic surveillance for foreign intelligence purposes,
Congress has the power to regulate the
conduct of such surveillance by legislating a reasonable procedure, which then
becomes the exclusive means by which such surveillance may be conducted.”[1136] The Senate Judiciary Committee was also
clear on this point, finding FISA “constitutes the exclusive means by which
electronic surveillance ... may be conducted.”[1137]
The Conference report – the final and most
definitive explanation of Congress’s legislative intent – firmly reiterates that
Congress intended to occupy the field regarding domestic warrantless
surveillance: “The intent of the conferees is to apply the
standard set forth in Justice Jackson’s concurring opinion in the Steel Seizure
case: ‘When a President takes measures incompatible with the express or implied
will of Congress, his power is at the lowest ebb, for then he can rely only upon
his own constitutional power minus any constitutional power of Congress over the
matter.’”[1138]
Although the Bush Administration attempts to
assert that contemporaneous statements of the Carter Administration indicate
their support for warrantless surveillance,[1139]
the legislative history is also quite clear that at the time of its passage, the
executive branch understood and accepted that the FISA law would occupy the
field. Testifying before the House
Intelligence Committee in 1978, Attorney General Griffin Bell stated, “I would
particularly call your attention to the improvements in this bill over a similar
measure introduced in the last Congress.
First, the current bill recognizes
no inherent power of the President to conduct electronic surveillance. Whereas the bill introduced last year
contained an explicit reservation of Presidential power for electronic
surveillance within the
The Bush Administration’s reliance on
language in In re Sealed Case and the
three court of appeals decisions noted therein is not persuasive for several
reasons. The actual statement in
the In Re Sealed Case is dicta – the issue before the FISA court
was whether the new “significant purpose” test for FISA warrants enacted
pursuant to the PATRIOT Act complied with the Fourth Amendment, not whether
warrantless domestic surveillance was constitutional.[1141] Also, all three court of appeals
decisions cited by the Administration were decided prior to the enactment of the
1978 FISA law and are easily distinguishable [1142] After reviewing these cases, the
non-partisan Congressional Research Service concluded, “[i]n the wake of FISA’s
passage, the Court of Review’s reliance [in the In re Sealed Case] on these pre-FISA
cases or cases dealing with pre-FISA surveillance as a basis for its assumption
of the continued vitality of the President’s inherent authority to authorize the
warrantless electronic surveillance for the purpose of gathering foreign
intelligence information might be viewed as somewhat undercutting the persuasive
force of the Court of Review’s statement.”[1143]
Even if the Administration is able to
establish that warrantless domestic wiretapping was statutorily or otherwise
legally authorized – which does not appear to be the case – in order to be
lawful it must also be shown to comply with the Fourth Amendment’s warrant
requirement (which has been definitively held to apply to electronic
surveillance[1144]). For its part, the Bush Administration
argues that the NSA program should be considered reasonable, both under a
general “balancing of interests” test under the Fourth Amendment[1145]
and pursuant to a “special needs” exception to the Fourth Amendment set forth in
various court decisions.[1146]
The Administration’s contention that the
domestic wiretapping program complies with the Fourth Amendment fails for
several reasons. First, the cases
cited by the Justice Department can be easily distinguished, and are either
pre-FISA or include mitigating factors that are not present in the Bush
Administration’s warrantless surveillance program.[1147] As the letter signed by former FBI
Director Sessions, Professor Van Alstyne and other scholars and officials
explained:
the NSA spying program has none of the safeguards found critical to
upholding “special needs” searches in other contexts. It consists not of a minimally intrusive
brief stop on a highway or urine test, but of the wiretapping of private
telephone and email communications.
It is not standardized, but subject to discretionary targeting under a
standard and process that remain secret.
Those whose privacy is intruded upon have no notice or choice to opt out
of the surveillance. And it is
neither limited to the environment of a school nor analogous to a brief stop for
a few seconds at a highway checkpoint.
Finally, and most importantly, the fact that FISA has been used
successfully for almost thirty years demonstrates that a warrant and probably
cause regime is not impracticable for
foreign intelligence surveillance.[1148]
Second, the essential test set forth by the
Bush Administration for conducting warrantless wiretapping– an NSA determination
that there is a “reasonable basis to believe” that a party to the communication
is a member of al Qaeda, affiliated with al Qaeda, or a member of an
organization affiliated with al Qaeda or working in support of al Qaeda.” – is
inconsistent with the Fourth Amendment’s probable cause requirement. Although the Attorney General has
attempted to argue that “it’s the same standard,”[1149]
George Washington Law School Professor Jeffrey Rosen has observed, “[I]t’s not
the same standard: Probable cause is clearly more demanding.”[1150] Another legal expert, President Bush’s
Chief of the FBI’s national security law unit, Michael J. Woods, explained that
this lower legal threshold may be the reason the Administration decided to opt
out of FISA to begin with.[1151]
Third, and in any event, it does not appear
that the surveillance being performed under the NSA program can meet even the
Administration’s lower self-imposed “reasonable basis” standard, which would
need to be applied by a court and not the Administration. According to government sources, and as
noted at greater length below, the NSA program had little discernible impact on
the government’s ability to prevent terrorist plots by Al Qaeda.[1152] It has been reported by official sources
that fewer than ten U.S. persons per year have aroused sufficient suspicion
during warrantless surveillance to warrant seeking a full fledged FISA warrant.
[1153] Accordingly, both national security
lawyers working for and outside the Bush Administration have stated that this
low “washout” rate make it doubtful the program could be deemed “reasonable” and
pass muster under the Fourth Amendment.[1154]
A government lawyer who has closely examined
the NSA wiretapping program has stated that the minimum conceivable definition
of “reasonable basis” would require that evidence derived from the eavesdropping
would be “right for one out of every two guys at least.”[1155] This individual stated that the
individuals who developed the program “knew they could never meet that standard
– that’s why they didn’t go through” the FISA court.[1156] Michael J. Woods has reiterated that
even the Administration’s own “reasonable basis” standard would necessitate, as
a constitutional matter, evidence “that would lead a prudent, appropriately
experienced person” to believe the American was a terrorist agent, and if the
program returned “a large number of false positives, I would have to conclude
that the factor is not a sufficiently reliable indicator and thus would carry
less (or no) weight.[1157]
iv. NSA Domestic
Database Program
Our review indicates that creating a massive
NSA database program first disclosed by USA Today has also resulted in apparent
legal violations. These include
ongoing civil violations of the Stored Communications Act and the Communications
Act, and potentially criminal violations as well.[1158] The Stored Communications Act of 1986[1159]
(SCA) prohibits the knowing disclosure of customer telephone records to the
government unless pursuant to subpoena, warrant[1160]
or a National Security Letter (or other Administrative subpoena);[1161]
with the customer’s “lawful consent;”[1162]
there is a business necessity;[1163]
or there is an emergency involving danger of death or serious physical injury.[1164] None of these exceptions apply to the
circumstances described in the USA
Today story.
Qwest has already stated that with regard to
the subpoena or warrant, “no such authority had been granted.” As the program is being run through the
NSA, not the FBI, no NSL’s would have been issued to obtain the data.[1165] There is also no colorable argument of
business necessity; if anything, releasing the records was deleterious to the
phone companies’ business. With
regard to customer consent,[1166]
this would not seem applicable under the present circumstances because the
provision is analogous to the consent exception of the closely related Federal
Wiretap Act,[1167]
requiring that “the user actually agreed to the action, either explicitly or
implicitly based on the user’s decision to proceed in light of actual notice,
and there is no indication such opt-in notice was provided.”[1168] As for the “emergency” exception, there
is no indication either the post-2006 (“the provider, in good faith, believes
that an emergency involving danger or death, or serious physical injury to any
person”), or pre-2006 (the provider “reasonably believed that there was an
immediate danger of death or physical injury”) statutory language was in any way
intended by Congress to exempt wholesale requests by the NSA for entire
databases on an ongoing basis.
Moreover, given that the NSA database program has been operating
continuously for nearly five years – through a range of color-coded threats – it
would seem to be an impossible task to claim for the government to claim that at
all times and in all regions there was an “immediate danger” to life.[1169]
Section 222 of the Communications Act[1170]
prohibits the disclosure of telephone customer information to any third party
except as required by law; [1171]
with the approval of the customer;[1172]
or for other specific business exigencies.[1173] Again, none of these exceptions
apply in the present situation.
There has been no court approved warrant or subpoena issued and none of
the identified business exigencies apply.
With respect to the customer consent argument, this would again require
affirmative opt-in by millions of customers, as required by the analogous
Federal Wiretap Act, as well as the applicable regulations.[1174]
The NSA would have separately violated the
criminal law if it obtained the customer information on a “real time” basis,
through so-called “trap and trace” or “pen register” mechanisms. This is a concern given that a former
intelligence official has stated, “[t]his is not about getting a cardboard box
of monthly phone bills in alphabetical order. The N.S.A. is getting real time and
actionable intelligence.”[1175] The Pen Register and Trap and Trace
Statute (18 U.S.C. Sec. 3121)
prohibits the installation of any pen register or trap and trace device
without first obtaining a court order under FISA or under the general criminal
wiretap law.[1176] Again, in the present circumstances
there is no indication that a request for a warrant was made by the Justice
Department under either FISA or the criminal wiretap laws. As a result, both the Center for
Democracy and Technology (CDT) and the Center for National Security Studies have
concluded that the Administration’s actions were likely unlawful. CDT wrote, “[i]f the program involved
real-time interception, it probably violated both the Foreign Intelligence
Surveillance Act and the statute on interception of call detail information in
criminal cases.”[1177] Kate Martin, the Director of the Center
wrote “[i]f the NSA used a pen register or trap and trace device in real time,
it was required to obtain an order from the FISA court, either under the
specific pen register provisions .... or under the provisions for electronic
surveillance generally.”[1178]
Finally, although the Supreme Court held in
1979 in Smith v. Maryland[1179]
by a 5-4 vote that the use of a pen register recording numbers from a specific
phone is not considered a “search” for Fourth Amendment purposes, there are some
indications that the decision may not have continued viability given changes in
technology over the years. As
Professor Tribe wrote of the 1979 decision, “[u]convincing then, those words
ring hollow today, now that information technology has made feasible the NSA
program whose cover was blow [in May].
That program profiles virtually every American’s phone conversations,
giving government instant access to detailed knowledge of the numbers, and thus
indirectly the identities, of whomever we phone; when and for how long; and what
other calls the person phoned has made or received. As Justice Stewart recognized in 1979, a
list of numbers called ‘easily could reveal ... the most intimate details of a
person’s life.”[1180] If Professor Tribe is correct, the NSA
database program would also constitute a violation of the Fourth Amendment as
well as the above referenced statutory prohibitions.
v. Additional
Non-Legal Justifications
The Bush Administration has also propounded
a number of non-legal justifications for the NSA surveillance programs. First, they have argued that it is
impractical and cumbersome for the Administration to comply with FISA, which
they assert needs to be “modernized.”[1181] Second, Vice President Cheney, General
Hayden and others have asserted that had warrantless domestic spying programs
been in place in the early part of 2001, they would have been able to prevent
the September 11 attacks – by intercepting the communications involving two of
the 9/11 hijackers (Nawaf Alhazmi and Khalid Almidhar);[1182]
or their co-conspirator Zacarias Moussaoui.[1183] Third, members of the Bush
Administration,[1184]
the Republican National Committee[1185]
and their allies have asserted that Presidents Jimmy Carter and Bill Clinton
authorized comparable forms of surveillance programs during their
administrations through Executive Orders and Project
Echelon.
The Bush Administration’s contention that
FISA is too “cumbersome and burdensome”[1186]
and has not been “modernized” is belied by the fact that FISA clearly permits
the Attorney General to conduct emergency surveillance so long as they obtain
court approval within three days.[1187] The Bush Administration has never
adequately explained why this three-day retroactivity requirement was not
appropriate for their needs, other than to say that processing FISA applications
requires significant manpower and resources.[1188] However, we are not aware of any request
by the Administration to obtain the necessary personnel or resources to allow
them to comply with the law.
FISA itself has been updated on numerous
occasions to respond to concerns regarding its “agility.” Soon after the September 11 attacks,
Congress amended FISA to extend its emergency exemption from 24 to 72 hours.[1189] The PATRIOT Act included some
twenty-five separate updates to FISA[1190]
including: (i) expanding the scope of
FISA pen register authority;[1191]
(ii) lowering the standard for FISA pen-traps;[1192]
(iii) lowering the legal standard for FISA surveillance;[1193]
(v) extending the duration of FISA warrants;[1194]
(vi) expanding the scope of business records that can be sought with a FISA
order;[1195]
(vii) allowing for “John Doe” roving wiretaps;[1196]
(vii) requiring the intelligence community to set FISA requirements and assist
with dissemination of FISA Information;[1197]
(ix) immunizing those complying with FISA orders;[1198]
(x) lowering the standard for National Security Letters;[1199]
and (xi) expanding NSL approval authorities.[1200] Subsequent to the passage of the PATRIOT
Act, Congress has again at the Administration’s request broadened FISA to allow
surveillance of “Lone Wolf” terrorists.[1201]
Moreover, The Washington Post has reported that
“[s]everal FISA judges said they ... remain puzzled by Bush’s assertion that
the court was not ‘agile’ or ‘nimble’ enough to help catch terrorists. The court had routinely approved
emergency wiretaps 72 hours after they had begun, as FISA allows, and the
court’s actions in the days after the Sept. 11 attacks suggested that its judges
were hardly unsympathetic to the needs of their nation at war.”[1202] Indeed, the ease of use of both the
standard warrant and the emergency provisions is illustrated by the fact that
between 1979 and 2004 the FISA court approved 18,748 warrants and rejected only
five applications,[1203]
while from 2001- April 1, 2003, DOJ had successfully employed the emergency FISA
provisions 170 times – nearly four times as much as it has been used by all
previous administrations combined.[1204]
In addition, the FISA court has specifically
acceded to adopting new procedures to streamline the FISA warrant
process. On September 12, 2001, one day after the
attacks, when FBI Director Robert Mueller and other Justice officials asked
then-FISA presiding judge Lamberth to allow for expedited FISA procedures, he
immediately agreeded. According to
an informed government official:
“The requirement for detailed paperwork was greatly eased, allowing the
NSA to begin eavesdropping the next day on anyone suspected of a link to al
Qaeda, every person who had ever been a member or supporter of militant Islamic
groups, and everyone ever linked to a terrorist watch list in the United States
or abroad.”[1205] Even former Secretary of State Colin
Powell acknowledged, that it would not have been “that hard” for the Bush
Administration to obtain warrants to comply with FISA requirements.[1206]
The Administration’s claims that the NSA
programs could have prevented the September 11 attacks also do not appear to
comport with the facts. With
respect to Nawaf Alhazmi and Khalid Almihdhar, the September 11th
Commission found the government had already compiled significant information on
these individuals prior to the attacks, writing, “[o]n May 15, [2001], [a CIA
official] reexamined many of the old cables from early 2000, including the
information that Mihdhar had a U.S. visa, and that Hazmi had come to Los Angeles
on January 15, 2000. The CIA
official who reviewed the cables took no action regarding them.”[1207] Under FISA, the Administration could
have used the information to seek permission to monitor the suspects’ phone
calls and e-mails without risking any disclosure of the classified
information. It is also not at all
clear that warrantless surveillance would have been useful in averting the 9/11
attacks, since the Administration was unable to locate where the two suspects
were living in the
As for the Administration’s claims regarding
Zacarias Moussaoui, a 2003 Senate Judiciary Committee Report found that the
evidence gathered against him would have met the standard for acquiring a FISA
warrant, and that FBI personnel “failed miserably” in its attempts to secure
approval for a warrant.[1210] More recently, FBI Agent Harry Samit,
who had interrogated Mr. Moussaoui before the September 11 attacks, testified he
had warned his superiors more than 70 times, and as recently as September 10,
2001, that he believed that Moussaoui was a terrorist involved in a plot to
hijack an airplane, but the warnings were ignored by the FBI’s Bin Laden unit.[1211] It also has been reported that the FBI
ignored warnings it received from Phoenix FBI Agent Kenneth Williams, that he
had uncovered a scheme by al Qaeda to send terrorists to the
Third, it is not factually correct to assert
that either Presidents Carter or Clinton authorized surveillance comparable to
President Bush’s NSA programs. In
attempting to divert attention from President Bush’s conduct, the Republican
National Committee asserted that both Presidents Carter and Clinton had
authorized comparable forms of “search [or] surveillance without court
orders.”[1213] However, the RNC misstated the impact of
a Clinton Executive Order; EO 12949 merely clarified the existing FISA authority
for warrantless surveillance in emergency situations.[1214] The RNC left out the requirement,
included in the same sentence of the Executive Order, that any warrantless
search not involve “the premises, information, material or property of a
With regard to the argument that under
President Clinton Project Echelon was comparable to the Bush Administration’s
domestic database program, that program was premised on court-approved warrants.
Thus, then CIA Director George Tenet, in his April 12, 2002 testimony before the
Senate Intelligence Committee stated that Project Echelon utilized the warrant
process: “We do not target [the phone calls of U.S. residents] for collection in
the United States unless a FISA warrant has been obtained from the FISA Court by
the Justice Department.”[1217]
vi. Intelligence
Briefings In Violation of the National Security Act
Members of the Bush Administration have
repeatedly pointed to the value and significance of their briefing certain
members of House and Senate Leadership and the Chairs and Ranking Members of the
House and Senate Intelligence Committees regarding the domestic spying
programs.[1218] The NSA briefings concerning both the
warrantless wiretap and domestic database programs were conducted by the
Administration as so-called “Gang of Eight” briefings – which included the
Speaker and Minority Leader of the House, the Majority and Minority Leaders of
the Senate, and the Chairmen and Ranking Members of the Congressional
Intelligence Committees.[1219]
Briefings of this nature would appear to be
in violation of the National Security Act of 1947,[1220]
which governs the manner in which Members of Congress are to be briefed on
intelligence activities. The law
requires the President to keep all Members of the House and Senate Intelligence
Committees “fully and currently informed” of intelligence activities.[1221] Only in the case of a highly classified
covert action (when the
In the report, “Statutory Procedures Under
Which Congress Is To Be Informed of U.S. Intelligence Activities, Including
Covert Actions” the Congressional Research Service concludes that “[b]ased upon
publicly reported descriptions of the program, the NSA surveillance program
would appear to fall more closely under the definition of an intelligence
collection program, rather than qualify as a covert action program as defined by
statute.”[1226] Under this characterization,
according to Congressional Research Service, “limiting congressional
notification of the NSA program to the Gang of Eight . . . would appear to be
inconsistent with the law.”[1227]
It is also disingenuous for members of the
Bush Administration to assert that the briefings themselves somehow gave the
warrantless or domestic database programs enhanced legitimacy or legality,[1228]
as those Members who were briefed were constrained from taking actions to
preempt the program. Suzanne
Spaulding, former legal counsel for both Republican and Democratic leaders on
the House and Senate Intelligence Committees explained the inherent limitations
of the “gang of eight” briefings:
“They are provided only to the leadership of the House and Senate and of
the intelligence committees, with no staff present. The eight are prohibited from saying
anything about the briefing to anyone, including other intelligence panel
members. The leaders for whom I
worked never discussed the content of these briefings with me. It is virtually impossible for
individual members of Congress, particularly members of the minority party, to
take any effective action if they have concerns about what they have heard in
one of these briefings. It is not
realistic to expect them, working alone, to sort through complex legal issues,
conduct the kind of factual investigation required for true oversight and
develop an appropriate legislative response.”[1229] Intelligence Committee Ranking Democrat
Jane Harmann agreed, writing “Gang of Eight briefings do not provide for
effective oversight. Members of the
Gang of Eight cannot take notes, seek the advice of counsel, or even discuss the
issues raised with their committee colleagues.”[1230]
b. The legal
justifications used to justify the NSA programs threaten to establish a
constitutionally destabilizing precedent
“To borrow from Justice Robert Jackson’s
dissent in Korematsu v.
-----January 26, 2006, former Reagan
Associate Deputy Attorney General Bruce Fein, testifying at House Democratic
Hearings on NSA wiretap scandal.[1231]
One of the most problematic aspects of the
domestic wiretapping program is the after the fact legal rationales developed by
the Justice Department to justify the program to the public. By articulating far-fetched and
extravagant legal justifications, the Bush Administration has compounded the
initial problem by asserting a legal precedent without any meaningful limitation
on executive authority, and which sends a signal that the president considers
himself to be above the law.
As Barron’s Magazine Associate Editor
Thomas G. Donlan wrote, the existence of the NSA wiretapping program “was
worrisome on its face, but in justifying their actions, officials have made a
bad situation much worse:
Administration lawyers and the president himself have tortured the
Constitution and extracted a suspension of the separation of powers.”[1232] Similarly, Jonathan Schell noted that
“if [the president] can suspend FISA at this whim and in secret, then what law
can he not suspend? What need is
there, for example, to pass or not pass the Patriot Act if any or all of its
provisions can be secretly exceeded by the President? [and] If abuses of power
are kept secret, there is still the possibility that, when exposed, they will be
stopped. But if they are exposed,
and still permitted to continue, then every remedy has failed, and the abuse is
permanently ratified. In this case
what will be ratified is a presidency that has risen above the law.”[1233] In a similar vein, during the Senate
Judiciary Committee hearings, Republican Senator Lindsey Graham told the
Attorney General, “[r]eally, Mr. Attorney General, you could use the inherent
authority argument of a Commander-in-Chief at a time of war to almost wipe out
anything Congress wanted to do.”[1234]
The Administration’s response to this
concern has been somewhat inconsistent and contradictory. When asked about the limits of executive
power during an interview on January 31, 2006 on CBS News, the President
responded that he believed his power had limits even in wartime: “I don’t think a president can order
torture, for example. I don’t think
a president can order the assassination of a leader of another country with
which we’re not at war ... There are clear red lines.”[1235] However, the president has not
articulated where these “clear red lines” are derived from, if not the types of
statutory and constitutional limitations that were ignored in connection with
the warrantless surveillance program itself. Moreover, Attorney General Gonzales has
contradicted the president’s statements about what those limitations may
be. When Senator Graham asked if it
was lawful for the Congress to tell the executive that he cannot physically
abuse a prisoner of war, he stated, “I am not prepared to say that Senator. I think that is– I think you can make an
argument that is part of the rule the Government … .”[1236] In addition, the President’s assertions
of limitations are undermined by his own signing statement that he was not bound
by the recently enacted congressional limitations on torture.[1237]
Many observers have seen through the
Administration’s arguments, and found real danger in the breadth and brazenness
of their legal contentions. New York Times columnist Bob Herbert has
explained that by operating independently of the courts, the Bush Administration
is jeopardizing the principal of “separation of powers, which is the absolutely
crucial cornerstone of our form of government – our bulwark against
tyranny. An elaborate system of
checks and balances (you need a warrant from a court to wiretap, for example)
prevents the concentration of too much power in any one branch, or any one
person. Get rid of the checks and
balances and you’ve gotten rid of the
Web commentator Glen Greenwald has observed
that the same dangerous and limitless legal argument appeared in the now
infamous “Bybee Memo” justifying torture in contravention of applicable
international treaties and legal structures. Just as in the case of domestic spying,
the Bybee Memo contended, “it must be admitted, as a necessary consequence that
there can be no limitation of that
authority, which is to provide for the defense and safety of the community, in any matter essential to its efficacy
. . . . The Constitution’s sweeping grant vests in the President an unenumerated Executive power . . . The
Commander in Chief Power and the President’s obligation to protect the Nation imply the ancillary powers necessary to
their successful exercise.”[1240] U.S. News & World Report recently
reported that soon after the September 11, 2001 terror attacks, lawyers in the
White House and the Justice Department argued that the same legal authority that
allowed warrantless electronic surveillance inside the
Fears that the legally expansive rationales
behind the warrantless wiretapping program would be used to justify other
unilateral actions which may impinge on our citizens’ civil liberties have been
validated during the limited hearings held by the Senate and House Judiciary
Committees. At the Senate Judiciary
hearing on February 6, 2006, Attorney General Gonzales refused to respond to
Senator Schumer’s question as to whether the Administration had entered the
homes of any American citizens without warrants.[1242] Morever, subsequent to the hearing, the
Attorney General wrote an ominous letter, creating the impression that there
were indeed additional top secret programs using such authority outside of the
domestic spying program. The Washington Post wrote, “Attorney General
Alberto R. Gonzales appeared to suggest yesterday that the Bush administration’s
warrantless domestic surveillance operations may extend beyond the outlines that
the president acknowledged in mid-December.”[1243]
Other examples of the dangerous nature of
the legal precedent set by the warrantless surveillance program can be
illustrated by the response to questions submitted by Members of the House
Judiciary Committee. Among other
things, the Department of Justice made clear that even if Congress passed
legislation restricting the domestic warrantless wiretapping program and the
president signed it and agreed to it, the president was subsequently free to
ignore these restrictions under the inherent authority argument.[1244] Of particular concern, at the House
Judiciary hearings, the Attorney General essentially admitted that under the
inherent authority argument, the Administration would also have the legal
authority to intercept purely domestic communications between American citizens
without a court approved warrant.
In response to a question from Rep. Adam Schiff (D-CA), Mr. Gonzales
stated, “I’m not going to rule it out.”[1245]
c. President Bush
and other high ranking members of the Bush Administration appear to have made a
number of misleading statements concerning the NSA programs
“Now, by the way, any time you hear the
-----April 20, 2004, President George W.
Bush, Buffalo, NY, in a speech discussing the enactment of the
As part of the efforts to justify the NSA
surveillance programs, it appears that President Bush and members of his
Administration made a number of inaccurate statements. These include statements to the effect
that domestic wiretapping was being done according to court approved warrants,
indicating that no purely domestic communications were intercepted, that the
government was not monitoring U.S. calls on a widespread basis, and
mischaracterizing the extent and nature of concerns raised by Members during the
course of classified briefings.
i. Statements
that the government was only intercepting communications involving American
citizens pursuant to court approved warrants.
Separate and apart from the question of the
legality of the warrantless wiretapping program, it appears that Members of the
Bush Administration misled Members of Congress and the American people when
discussing this issue before the December, 2005 New York Times disclosure of the
program. The public record reveals
that on numerous occasions prior to this disclosure, President Bush and others
in his Administration indicated that wiretapping of Americans would only occur
pursuant to a court order:
·
On
September 10, 2002, then Associate Attorney General David Kris testified before
the Senate Judiciary Committee that “both before and after the PATRIOT Act, FISA
can be used only against foreign powers and their agents, and only when there is
at least a significant foreign intelligence purpose for the surveillance. Let me repeat for emphasis, we cannot
monitor anyone today whom we could not have monitored at this time last year.”[1247]
·
On
April 19, 2004, President Bush stated, “law enforcement uses so-called roving
wiretaps to investigate organized crime. You see, what that meant is if you got
a wiretap by court order -- and, by the way, everything you hear about requires
court order, requires there to be permission from a FISA court, for example.”[1248]
·
On
April 20, 2004, President Bush stated: “Now, by the way, any time you hear the
·
On July
14, 2004, the President stated, “[f]irst of all, any action that takes place by
law enforcement requires a court order. In other words, the government can't
move on wiretaps or roving wiretaps without getting a court order.”[1250]
·
On
January 6, 2005, in response to Senator Feingold asking “does the President, in
your opinion, have the authority, acting as Commander in Chief, to authorize
warrantless searches of American’s homes and wiretaps of their conversations in
violation of the criminal and foreign intelligence surveillance statutes of this
country,” Mr. Gonzalez
responded, “it’s not the policy or
the agenda of this President to authorize actions that would be in contravention
of our criminal statutes.”[1251] When Senator Feingold followed up by
asking if Mr. Gonzales would “commit to notify Congress if the President makes
this type of decision and not wait two years until a memo is leaked about it,”
he replied, “I will commit to advise the Congress as soon as I reasonably can,
yes, sir.”[1252]
·
On June
9, 2005, President Bush stated, “Law enforcement officers need a federal judge’s
permission to wiretap a foreign terrorists phone, a federal judge’s permission
to track his calls, or a federal judge’s permission to search his property.”[1253] Similarly, on July 20, 2005, President
Bush stated: “Law enforcement officers need a federal judge’s permission to
wiretap a foreign terrorist's phone, or to track his calls, or to search his
property.”[1254]
These statements do not comport with the
Administration’s responsibility to be careful and forthright in their statements
to the Congress or the American people.
The principal defense offered by President Bush is that “I was talking
about roving wiretaps, I believe, involving the PATRIOT Act. This is different from the NSA
program.”[1255] This defense is incomplete at best, and
misleading at worst.
First, the blanket defense does not apply to
the many misleading statements made by members of the Bush Administration. Thus, on September 10, 2002, when
Associate Attorney Kris stated, “we cannot monitor anyone today whom we could
not have monitored at this time last year,” this would seem false by any
construction. The context of the
statement indicates that with our without the PATRIOT Act, checks and balances –
in the form of court-approved surveillance – are in place. It is also clearly misleading, when in
January 2005, Attorney General Gonzales, who was integrally involved in the
creation of the domestic spying program, told Senator Feingold that warrantless
surveillance was not occurring, and pledged to let him know if such a program
was initiated (which he never did).
The Attorney General’s response was in no way limited to PATRIOT Act
authorities.
With regard to the President’s statements,
while they were made in speeches during which the PATRIOT Act was discussed, it
is not at all clear that the President was intending to limit his remarks –
which did not include specific qualifications – to the PATRIOT Act. Read in context it would seem the more
reasonable interpretation of the statements is as part of an overall effort to
convince the public that the Justice Department was not over reaching in their
investigations. This
construction is supported by the fact that most investigations involve a variety
of authorities, some under the PATRIOT Act, and some under other
authorities. For example, the
so-called “roving wiretaps” referred to by the president in his defense exist
under both the PATRIOT Act and general criminal law.[1256]
ii. Statements that
no purely domestic communications were intercepted under the warrantless
wiretapping program
On numerous occasions, members of the Bush
Administration have asserted that the NSA warrantless wiretapping program does
not include purely domestic communications. For example, on January 25, 2006,
President Bush stated, the NSA program was limited to international calls,
stating, “[i]n other words, one end of the communication must be outside the
These statements do not appear to be
accurate. Government sources and
other media reports indicate that purely domestic communications have been
intercepted in connection with the warrantless wiretapping program, and that
this occurs by virtue of the program accidently capturing domestic to domestic
cell phone and other communications and by intentionally capturing
communications by Americans as part of an expanding chain of intercepts which
may have began abroad.
First, government officials have
specifically indicated that the eavesdropping program “has captured what are
purely domestic communications.”[1261] According to Robert Morris, a former
senior scientist at the NSA, it is “difficult, even for the NSA, to determine
whether someone is inside or outside the
That there is little question that purely
domestic communications have been at least inadvertently captured can be seen by
the fact that at Judiciary Committee hearings, the Justice Department indicated
that such communications are destroyed when they are identified.[1265] It is also telling that the
Administration has not responded to charges that the program may have
specifically targeted American citizens.
For example, NBC implied in an interview with James Risen information
that CNN’s chief international correspondent, Christiane Amanpour, was targeted
by the NSA domestic surveillance program.[1266] In the interview, Andrea Mitchell asked
Mr. Risen, “You don't have any information, for instance, that a very prominent
journalist, Christiane Amanpour, might have been eavesdropped upon?” The transcript from the interview was
posted on the MSNBC.com website, but NBC later redacted the portion of the
transcript concerning the line of questioning on the wiretapping of Amanpour.[1267] Mr. Conyers and 27 other Members asked
President Bush to respond to this charge, in a letter dated January 5, 2006,[1268]
however, we have never received a response to this letter.[1269]
Second, there is evidence the NSA
warrantless wiretapping program includes purely domestic communications by
individuals located in the
The Washington Times confirmed the nature of
this ever expanding chain pulling in domestic to domestic communications based
on their discussions with law enforcement officials:
The [law enforcement] sources provided
guidelines to how the administration has employed the surveillance program. They said the National Security Agency
in cooperation with the FBI was allowed to monitor the telephone calls and
e-mails of any American believed to be in contact with a person abroad suspected
of being linked to al Qaeda or other terrorist groups. At that point the sources said, all of the
communications of that American would be monitored, including calls made to
others in the
Current and former government officials as
well as private sector sources have confirmed the basic outlines on the program,
and its impact on purely American communications. On February 5, 2006, The Washington Post
wrote:
The program has touched many ...
Americans... . Surveillance takes place in several stages, officials said, the
earliest by machine.
Computer-controlled systems collect and sift basic information about
hundreds of thousands of faxes, e-mails and telephone calls into and out of the
In the May 29 issue of the New Yorker, Seymour Hersh confirmed that
the Bush Administration was using this technique known as “chaining” to
eavesdrop on domestic calls without a warrant:
The N.S.A. also programmed computers to map
the connections between telephone numbers in the
iii. Statements that the
government is not monitoring telephone calls and other communications within the
The President and other members of the Bush
Administration have also made a number of statements to the effect that the
Administration was not monitoring calls or other domestic communications. For example, on December 27, 2005, White
House spokesman Trent Duffy stated that the NSA program was “a limited
program. This is not about
monitoring phone calls designed to arrange Little League practice or what to
bring to a potluck dinner.”[1277] On May 8, 2006, when Intelligence
Director John Negroponte declared the Bush Administration was “absolutely not”
monitoring domestic calls without warrants and added, “I wouldn’t call it
domestic spying.”[1278] On the day of the USA Today disclosure of the domestic
database scandal, President Bush said, “[t]he privacy of ordinary Americans is
fiercely protected in all our activities.
We’re not mining or trolling through the personal lives of millions of
innocent Americans.”[1279]
In light of the USA Today disclosure it was incomplete
at best, and misleading at worst for Mr. Duffy and Mr. Negroponte to state that
U.S. calls were not being monitored, given that, as the article makes clear
“[t]he NSA has been secretly collecting the phone call records of tens of
millions of Americans” and the “NSA program reaches into homes and businesses
across the nation by amassing information about the calls of ordinary Americans
– most of whom aren’t suspected of any crime.”[1280]
President Bush’s statement that his
Administration is not “mining or trolling through the personal lives of millions
of Americans” also appears difficult to defend in light of the USA Today story. Even beyond the
article’s disclosure of the existence of the NSA database program, there is
ample evidence the Bush Administration monitors the domestic communications of
innocent Americans and maintain data bases of numerous aspects of our personal
lives. Consider the following revelations which were disclosed independently of
the May 11 USA Today article:
·
In
October 2002, then Senate Intelligence Chairman Bob Graham stated that “briefers
told him in Cheney’s office … that Bush had authorized the [NSA] to tap into
[domestic telephone] junctions .... and allowed the NSA to intercept,
‘conversations ... that went through a transit facility inside the
·
In
October 2002, NSA Director General Michael Hayden testified, “I have met
personally with prominent corporate executive officers. (One senior executive
confided that the data management needs we outlined to him were larger than any
he had previously seen). […] And last week we cemented a deal with another
corporate giant to jointly develop a system to mine data … .”[1282]
·
In
November 2002, The New York Times
reported that the Pentagon was developing a tracking system called Total
Information Awareness (TIA) which would have been capable of searching countless
public and private databases and combining the information to find patterns and
associations, peering into the lives of 300 million Americans.[1283] Although Congress eliminated funding for
the controversial project in September 2003,[1284] TIA has been replaced by a number of
programs, including: (i) the NSA’s “Advanced Research and Development Activity”
(ARDA)(the National Journal reported
that research under TIA was moved to ARDA); [1285]
(ii) the Pentagon’s “Threat and Local Observation Notice” (TALON) Program[1286]
(a memo obtained by Newsweek shows
that the deputy Defense secretary admitted that TALON reports likely contain
information on innocent U.S. citizens and groups);[1287]
(iii) the Department of Homeland Security’s “Analysis, Dissemination,
Visualization, Insight, and Semantic Enhancement” (ADVISE) Program (designed to
assemble a database by linking information from blogs, e-mail and government
records); [1288] and (iv) the Pentagon’s Counter
Intelligence Field Activity (CIFA) (which was found to have “failed to follow
policies regarding the collection and retention of information about U.S.
persons”).[1289] In May 2004, the GAO issued a report
confirming that the Bush Administration was engaged in “199 data mining efforts
... [of which] 122 used personal information.”[1290] According to the GAO, the data mining
included personal information from private and government sources.[1291]
·
On
December 23, 2005, The New York Times
reported that according to government officials, “the NSA has gained the
cooperation of American telecommunications companies to obtain backdoor access
to streams of domestic and international communications”[1292]
and the leading telecommunication companies “have been storing information on
calling patterns and giving it to the federal government … .”[1293] The Times further reported that according to
a telecommunications industry source, “efforts to obtain call details go back to
early 2001, predating the 9/11 attacks” and the “the NSA approached
·
On
January 20, 2006, Congressman Conyers sent letters to twenty companies –
including telephone companies, cable companies, and internet service providers
concerning their involvement in data mining and surveillance of American
citizens.[1295] While several companies said that they
would not support government surveillance except pursuant to a compulsory
order,[1296]
the responses of AT&T and Verizon appear to have been drafted to leave open
the possibility that they had provided access and information without a court
order or subpoena.[1297]
·
On
January 31, 2006, the Electronic Frontier Foundation filed a lawsuit alleging
that AT&T gave the NSA access to massive databases of telephone and email
messages. The lawsuit was supported by affidavits filed by Mark Klein who stated
that in 2003 the NSA set up a “secret room” at AT&T’s
iv. Statements that
Members of Congress briefed by the Bush Administration had not questioned the
legality or appropriateness of the NSA Programs.
Members of the Bush Administration have
claimed that during the various Congressional briefings, members of Congress did
not raise any objections regarding the programs.[1299] For example, White House Counselor Dan
Bartlett declared, that lawmakers who have been briefed on the NSA wiretapping
program “believed we are doing the right thing,” and that if Democrats “briefed
on these programs would be screaming from the mountaintops,” if they thought the
program was illegal.[1300] With respect to the NSA domestic
database program, White House Deputy Press Secretary Dana Perino stated that
“all appropriate Members of Congress had been briefed.”[1301] We have found, however, that numerous
Members who were briefed about the spying programs did express concerns
regarding both the scope of the briefing and the substance of the
programs.
For example, in 2003, the Ranking
Democrat on the Senate Intelligence Committee, Senator Rockefeller (D-WV)
handwrote a letter to Vice President Cheney expressing serious reservations
about NSA warrantless wiretapping operations, noting “[c]learly, the activities
we discussed raise profound oversight issues”[1302]
and that “[w]ithout more information and the ability to draw on any independent
legal or technical expertise, I simply cannot satisfy lingering concerns raised
by the briefing we received.”[1303] Nancy Pelosi (D-CA) stated that when she
was the Ranking Member of the House Intelligence Committee, she forwarded a
letter to the National Security Agency in October 2001 indicating that because
of President Bush’s “overly broad interpretation” of the terms “‘classified or
sensitive law enforcement information,’ it has not been possible to get answers
to my questions,”[1304]
and that “[u]ntil I understand better the legal analysis regarding the
sufficiency of the authority which underlies your decision on the appropriate
way to proceed on this matter, I will continue to be concerned.”[1305] Bob Graham, the former Chairman of the
Senate Intelligence Committee, also expressed concerns with these briefings,
noting that “his recollection from an initial briefing in late 2001 or early
2002 was that there had been no specific discussion that the program would
involve eavesdropping on American citizens.”[1306]
Former Senator Democratic Leader Tom Daschle
has stated that the White House “omitted key details about the surveillance
programs related to the war on terrorism during classified briefings with
lawmakers.”[1307] He added, “[t]he presentation was quite
different from what is now being reported in the press. I would argue that there were omissions
of consequence.”[1308] Current Majority Leader Reid (D-NV) also
indicated that he received only “a single, very short briefing” and “key details
about the program apparently were not provided to [him].”[1309] Also, with regard to the briefings on
the NSA’s domestic data base program, House Minority Leader Pelosi stated, “she
hadn’t been told all of the information included in the USA Today story. And all but a handful
of lawmakers learned of the program for the first time in the news account.”[1310]
d. There is
little indication the domestic spying programs have been beneficial in the war
against terror, while there is a significant risk the programs may be
affirmatively harming terrorism prosecutions and tying up law enforcement
resources
“[The leads provided by the NSA wiretapping
program] were ‘viewed as unproductive, prompting agents to joke that a new bunch
of tips meant more calls to Pizza Hut’”
-----January 17, 2006, Statement of FBI
Field Supervisor to The New York Times[1311]
We have found little, if any evidence, that
the domestic spying programs have led to significant leads in the war against
terror, and there is a very real risk that the existence of the programs may
jeopardize terrorism prosecutions.
In December 2005, law enforcement officials
told the media that the warrantless wiretapping program had not led to the
detention of any al Qaeda agents in the
FBI officials have indicated scepticism
regarding the importance of the streams of NSA intelligence and complained that
they were overloaded with tips gathered from the NSA electronic
surveillance. One official source
acknowledged, “[i]t affected the FBI in the sense that they had to devote so
many resources to tracking every single one of these leads, and, in my
experience, they were all dry leads,” and that the program “led to dead ends or
innocent Americans.”[1317] In response to complaints by the FBI,
the NSA “began ranking its tips on a three-point scale, with three being the
highest priority and one the lowest.”[1318] Even after the NSA began using this
ranking system, according to an official that supervised FBI field agents, the
leads continued to be “viewed as unproductive, prompting agents to joke that a
new bunch of tips meant more calls to Pizza Hut.”[1319]
Because of legal and constitutional concerns
with the domestic wiretap program, there is a risk that it will undermine
pending and completed terrorism prosecutions. As First Amendment attorney Martin
Garbus predicted, every defendant in a terrorism case will use the existence of
the program to challenge evidence being used against them.[1320] Terror prosecutions in
Numerous additional terrorism cases
involving FISA warrants may also have been threatened, even though, as noted
above, the FISA court laid down strict requirements to insure that the
information obtained pursuant to warrantless surveillance does not taint
subsequent warrants or criminal prosecutions.[1324] According to two sources, at least twice
in the last four years, James A. Baker, the counsel for intelligence policy in
the Justice Department’s Office of Intelligence Policy and Review, was forced to
disclose to the FISA court that such information may have been wrongfully used
to obtain FISA warrants.[1325]
There is also little evidence the NSA’s
domestic data base program has aided in the apprehension of terrorists. For
example, on May 22, 2006, Newsweek
reported that “administration officials [they] interviewed … questioned whether
the fruits of the NSA [database] program – which they doubted, though not
publicly at the risk of losing their jobs – have been worth the cost to
privacy.”[1326] One Pentagon consultant admitted, “[t]he
vast majority of what we did with the [NSA] intelligence was ill-focused and not
productive. It’s intelligence in real time, but you have to know where you’re
looking and what you’re after.”[1327] When Senate Majority Leader Bill Frist
(R-TN) was interviewed by Wolf Blitzer on May 14, 2006, Mr. Frist , while
defending the program’s lawfulness, refused to identify or even knowledge any
specific successes against terrorism, even though he was asked three separate
times whether “there has been one success story that you can point to.”[1328]
e. The NSA programs appear to have been
implemented in a manner designed to stifle objections and dissent within the
Administration
“Miffed that [Deputy Attorney General James]
Comey, a straitlaced, by-the-book former US attorney from New York, was not a
‘team player’ on this and other issues, President George W. Bush dubbed him with
a derisive nickname, ‘Cuomo,’ who vacillated over running for president in the
1980's.”
-----Feb. 6, 2006, Statement of government
source to Newsweek[1329]
Defenders of the Administration have
contended that even if the warrantless surveillance programs are unlawful, the
Administration engaged in the programs in good faith.[1330] However, it is difficult to confirm such
a claim when the Administration refuses to turn over the secret legal opinions
and related material involved in the NSA programs initial approval,[1331]
and will not even disclose the names of those individuals involved in the
initial authorization of the programs.[1332]
At the same time, the public record appears
to show that the warrantless wiretapping programs were created in a manner
specifically designed to facilitate its approval. Thus, officials within the Bush
Administration told Time that when
the warrantless wiretapping program was created, “the ‘lawyers group,’ an
organization of fewer than half a dozen government attorneys the National
Security Council convenes to review top-secret intelligence programs, was
bypassed. Instead, the legal
vetting was given to Alberto Gonzales, then the White House counsel.”[1333] Similarly, Newsweek reported, “[t]he eavesdropping
program was very closely held, with cryptic briefings for only a few
congressional leaders ... .. [then counsel to the Vice President David]
Addington and his allies made sure the possible dissenters were cut out of the
loop.”[1334] Among others, the Vice President himself
“played a direct role in the controversial surveillance program.”[1335] Incredibly, then Deputy Attorney General
Larry Thompson, who had been involved in nearly all of the Administration’s
classified counterterrorism activities, was not involved or otherwise given
access to the program.[1336]
We have also identified a pattern by which
senior members of the Bush Administration appear to have sought retaliation
against those individuals who have expressed concerns regarding the warrantless
wiretapping program. The most
notable example of this retribution comes in the form of the Justice
Department’s “leak” investigation into the whisteblowing activity that led to
the disclosure of the NSA program.[1337] This was specifically referred to by
President Bush who claimed it was “a shameful act for someone to disclose this
very important program in a time of war.
The fact that we’re discussing the program is helping the enemy.”[1338] In an apparent effort to make sure there
was no doubt that the “aggressive and fast moving”[1339]
legal reaction by the Bush Administration was noted, the Department of Justice
took the highly unusual step of publicly announcing that it had commenced an
investigation on December 30, 2005.[1340]
Of course, when asked what possible fallout
could come from disclosing the rather unexceptional fact that terrorists might
be subject to surveillance, the only argument the Administration could muster
was that it somehow “reminded” the terrorists to be careful.[1341] As George Will noted, “surely
The few attorneys at Justice willing to
voice legal concerns regarding the wiretapping program also faced severe
criticism and threats from high ranking officials within the Administration,
according to current and former DOJ officials.[1344] This led to Deputy Attorney General
James Comey to state in his farewell speech at DOJ, “the people committed to
getting it right – and to doing the right thing ... know who they are. Some of them did pay a price for their
commitment to right.”[1345] These individuals included former
Assistant Attorney General in charge of the Office of Legal Counsel, Jack
Goldsmith and Patrick Philbin, a national security aide to the Deputy Attorney
General, both of whom raised questions regarding the NSA program.[1346] According to sources, although Philbin
“had been the in-house favorite to become deputy solicitor general . . . his
chances of securing any administration job [were] derailed when [David]
Addington who had come to see him
as a turncoat on national-security issues, moved to block him from promotion,
with Cheney’s blessing.”[1347] Newsweek further reported that within
the Justice Department those who raised questions regarding the program “did so
at their peril; [they were] ostracized ... denied promotions, while others
left . . . . Some went so far
as to line up private lawyers in 2004, anticipating that the president’s
eavesdropping program would draw scrutiny from Congress, if not prosecutors.”[1348]
When Mr. Comey himself registered concerns
with the NSA wiretapping program, which led to a secret audit of the program,
the displeasure went all the way up to the President. The New York Post reported that as a result
of this disloyalty, President Bush began referring to Mr. Comey as “Cuomo,”
after former New York Democratic Governor Mario Cuomo who was considered not to
be a “team player.”[1349] Newsweek also confirmed that “[m]iffed
that Comey, a straitlaced, by-the-book former US attorney from New York, was not
a “team player” on this and other issues, President George W. Bush dubbed him
with a derisive nickname, ’“Cuomo,’ who vacillated over running for president in
the 1980's.”[1350]
With respect to the domestic data base
program, there is also evidence that it was set up in a manner designed to
eliminate dissent and avoid scrutiny by attorneys at the Justice Department.
Intelligence historian Matthew Aid explained, “it does seem clear that the
Justice Department was excluded from all of this, or at least the parts of the
Justice Department that would normally have some oversight over this… .They kept
the number of people within the Justice Department who had knowledge of the
program to a small number of people. I think they feared that if they passed it
down to other departments that might have some purview over the program they
might have encountered a stream of objections.”[1351]
There are also reports the Bush
Administration applied inappropriate pressure on Qwest in an effort to force
them to participate in the NSA database program. USA Today reported that according its
sources, after Qwest refused to voluntarily participate, “the agency
suggested that Qwest’s foot-dragging might affect its ability to get future
classified work with the government. Like other big telecommunications
companies, Qwest already had classified contracts and hoped to get more.”[1352]
2. Continued
Stonewalling of Congress and the American People
“When the President does it, that means it’s
not illegal.”
-----May 20, 1977, President Richard Nixon
explaining his interpretation of executive privilege in an interview with David
Frost.[1353]
As we learned when reviewing the deceptions
and manipulations associated with the Downing Street Minutes and the War in
First, the Administration spurned attempts
to have an independent special counsel review the legality of the NSA programs,
even though such a review would clearly meet the criteria set forth in the
regulations.[1355] When Rep. Zoe Lofgren (D-CA) and 17
other Members requested a special counsel regarding the warrantless wiretapping
program, the White House Press Secretary, stated that there was not any basis
for appointing a special counsel and that Members “ought to spend their time on
what was the source of the unauthorized disclosure of this vital and critical
program.”[1356] After USA Today revealed the existence of a
massive NSA data base program, Rep. Lofgren and 53 other Members of Congress
extended the request to include all of the domestic surveillance programs.[1357] There has been no response to this
letter. Rep. Conyers asked the
Attorney General about the Department’s record of having failed to appoint a
single special counsel during the entire Bush Administration, Mr. Gonzales
appeared to not even appreciate that he had the authority to appoint a special
counsel pursuant to DOJ regulations.[1358]
Democrats have also been rebuffed in their
efforts to obtain an independent review outside of the special counsel
regulations, with both the Department of Justice Inspector General[1359]
and the Department of Defense Inspector General[1360]
claiming they did not have jurisdiction to consider the matters. Although in February 2006, the DOJ
Office of Professional Responsibility (OPR) did initially agree to investigate
whether Department attorneys had violated any ethical rules in approving the
warrantless wiretap program,[1361]
by May, the Bush Administration had squashed this investigation as well by
denying OPR attorneys security clearances needed to review DOJ’s role in the
program.[1362] Requests by the House Democratic
Leadership to conduct hearings and create an independent panel to examine the
programs have also been ignored by the Republican Leadership,[1363]
as have been efforts by Sen. Byrd in the Senate and Rep. Conyers in the House to
have a blue ribbon commission review the programs.[1364]
Second, the Senate and House Judiciary
Committees were unsuccessful in obtaining meaningful information from the Bush
Administration regarding the domestic spying scandal. At the Senate hearings, in a break with
regular order, the Attorney General was not even sworn in.[1365] At the hearings, Members became so
exasperated by Mr. Gonzales’ failure to respond to their questions that Ranking
Member Leahy was forced to state, “[o]f course, I’m sorry, Mr. Attorney General,
I forgot; you can’t answer questions that might be relevant to this.”[1366] After initially raising no objection to
the Committee’s request that former Attorney General Ashcroft or former Deputy
Attorney General Comey testify – both of whom had first-hand knowledge regarding
the legal foundations for the warrantless wiretapping program – the Department
of Justice subsequently blocked them from testifying.[1367] The Bush Administration also killed an
effort by Senate Judiciary Chairman Arlen Specter to ask telephone executives to
testify regarding the NSA’s domestic database program.[1368]
The Department also failed to respond to the
vast majority of the written questions submitted by both Democrats and
Republicans on the House Judiciary Committee in advance of general oversight
hearings.[1369] This failure caused Chairman
Sensenbrenner to accuse the Department of “stonewalling”: “I think that saying that how the review
was done and who did the review is classified is stonewalling. And if we’re properly to determine
whether or not the program was legal and funded – because that’s Congress’s
responsibility – we need to have answers, and we’re not getting them.”[1370]
The GOP-controlled Senate and House
Intelligence Committees also have failed to fulfill their oversight
responsibilities. The Senate
Intelligence Committee initially appeared to be considering a meaningful
investigation of the NSA wiretapping program, however, after intense White House
lobbying, the Committee voted against such an investigation on a party-line
basis.[1371] After the Committee vote, Ranking
Democrat John Rockefeller (D-WI) declared, “[t]he committee is, to put it
bluntly, basically under the control of the White House.”[1372] The New York Times wrote, “[t]he [NSA]
program violates the law. Congress
knows it. The public knows it. Even President Bush knows it. (He just says the law doesn’t apply to
him.) In response, the Capitol Hill
rebels are boldly refusing to investigate the program - or any other warrantless
spying that is going on. . . .And meanwhile, they’ve created new subcommittees
to help the president go on defying the law.”[1373]
In addition, Senate Republicans introduced
two bills, one by Senator DeWine, and another by Senator Specter, both of which
would effectively ratify the practice of warrantless surveillance of innocent
Americans. The DeWine legislation
would “entirely remove intelligence gathering related to terrorism from the
[FISA] law;”[1374]
while the Specter legislation would “grant legal cover, retroactively, to the
one spying program Mr. Bush has acknowledged. It also covers any other illegal
wiretapping we don’t know about – including, it appears, entire programs that
could cover hundreds, thousands, or millions of unknowing people.”[1375] Rather than investigate the domestic
spying program, the Chairman of the Senate Intelligence Committee has proposed
new legislation to broaden the coverage of leaks, cracking down on the very
whistleblowers who have helped disclose the illegal NSA program.[1376]
The Republican Leadership has also blocked
legislative efforts to obtain further information about the NSA spying
programs. Representatives Lee,[1377]
Conyers,[1378]
Slaughter,[1379]
and Wexler,[1380]
have all introduced separate Resolutions of Inquiry to direct the Administration
to provide documents concerning the authorization of the warrantless wiretapping
program.[1381] The rejection of these resolutions by
the Majority has prevented Congress from obtaining copies of the original legal
opinions issued concerning the domestic surveillance programs.[1382] At the same time, on May 22, the
GOP-dominated FCC also rejected a request by Rep. Markey (D-MA) that they
investigate the legality of the NSA database program.[1383]
The Bush Administration has compounded the
oversight difficulties through misstating facts and their proclivity toward
secrecy. For example, while the
Bush Administration argues it has convicted hundreds upon hundreds of
individuals in terrorism cases, a careful review reveals that the vast majority
of these cases bear no relation to terrorism. Thus, in June 2005, The Washington Post reported that only
39 people – not the 200 implied by President Bush – have been convicted of
terrorism-related crimes since the September 11 attacks.[1384] Another independent review of cases
brought in 2003 by the Miami Herald,
found that the Justice Department claimed to have charged 56 people as
“terrorists,” however, 41 of these cases were found to have had nothing to do
with terrorism.[1385] The Daily Iowan also reported that where
numerous individuals who the Administration claimed convicted of terrorism were
found to have actually been implicated in far more minor offenses.[1386] A GAO Report found that in 2002, “at
least 132 of the 288 convictions ... were misclassified as terrorism-related.”[1387]
By making numerous changes to narrow FOIA,
expanding the classification rules, and repeatedly asserting the state secrets
doctrine, the Bush Administration has also unilaterally acted to make it far
more difficult for Congress, the media, and the American people to have access
to government documents concerning these abuses. (The notable exception to these sweeping
increases in secrecy is in cases where members of the Bush Administration have
chosen to selectively declassify documents for political purposes.[1388])
First, the Bush Administration significantly
narrowed the scope of the FOIA by providing that agencies are entitled to the
government’s full legal support for withholding information from the public.[1389] The GAO found that this led federal
agencies to significantly inhibit the release of previously public
information.[1390] Second, the Administration dramatically
expanded the use of the “state secret doctrine” to block access to government
documents.[1391] Among other things, the doctrine was
used by the Administration to block Sibel Edmonds, a FBI translator, from
seeking redress as an intelligence whistleblower,[1392]
to limit information concerning the case of Maher Arar, a Canadian citizen sent
to Syria where he was tortured,[1393]
to seek dismissal of suits challenging the NSA’s wiretapping program brought
against AT&T,[1394]
two suits challenging the legality of the NSA’s warrantless wiretap program brought by the ACLU and the Center for
Constitutional Rights,[1395]
20 lawsuits brought against telephone companies alledging that they had
improperly provided customer call data to the NSA[1396],
and a lawsuit alleging that the CIA had wrongfully imprisoned a German
citizen.[1397] Third, President Bush has eliminated the
presumption of disclosure when the federal government makes classification
decisions,[1398]
resulting in a significant increase in the number of documents classified each
year. [1399]
President Bush has also used presidential
signing statements in an effort to negate laws providing for congressional
oversight. This includes statements that he can ignore statutes requiring
reports on the use of national security wiretaps against American citizens;
disclosure of memorandums setting forth new interpretations of domestic spying
laws; reports on civil liberties, security clearance and border security;
reports on possible vulnerabilities in chemical plants and baggage screening at
airports; and notification regarding diversions of funds for secret “black
sites”[1400] Concerning this practice, NYU Law Professor
David Golove has warned, a “President who ignores the court, backed by a
Congress that is unwilling to challenge him can make the Constitution simply
disappear.”[1401]
Since Part I of this Report concerning
The Downing Street Minutes
and Deception, Manipulation, Torture, Retribution and Coverups in the
Determination to go to War Before
Congressional Authorization
·
On
February 3, the London Guardian
detailed the minutes of a White House meeting between President Bush and Prime
Minister Blair in which President Bush indicated on January 31, 2003 that he
would invade
Misstating and Manipulating the Intelligence
to Justify Pre-emptive War
·
On
January 18, The New York Times reported that a
high-level intelligence assessment by the Bush administration concluded in March
2002 that the sale of uranium from
·
On
February 2, Murray Waas of the National
Journal reported that a highly classified CIA memo issued on June 17, 2003
determined that "[w]e no longer believe there is sufficient" credible
information to “conclude that Iraq pursued uranium from abroad,” and that
"[s]ince learning that the Iraqi-Niger uranium deal was based on false documents
earlier this spring, we no longer believe that there is sufficient other
reporting to conclude that Iraq purchased uranium from abroad." Vice President
Cheney and his then-Chief of Staff Scooter Libby were personally informed of
these findings. (The Administration
did not withdraw or correct their misstatement until July 7, 2003, six months
after the President’s State of the Union speech.
·
On
February 10, in an article in the Journal “Foreign Affairs,” veteran CIA agent,
Paul Pillar, who oversaw intelligence assessments about the Middle East from
2000 to 2005, accused the Bush administration of “cherry-picking” intelligence
on
·
On
March 2, Murray Waas reported that two highly classified intelligence reports
delivered directly to President Bush before the war undermined important
assertions the Administration had made concerning WMD. In October, 2002, President Bush
personally received a one-page summary of a National Intelligence Estimate that
concluded that both the Energy and State Departments believed the aluminum tubes
being procured by
·
On
April 9, The Washington Post revealed
that in January 2003, the National Intelligence Council, the senior coordinating
body for the 15 agencies that then constituted the
·
On
April 13, The Washington Post
reported that a secret fact-finding mission including nine
·
On
April 23, Sixty Minutes interviewed
retired CIA Officer Tyler Drumheller, who headed up the CIA’s covert operations
in
·
On June
27, the Senate Democratic Policy Committee held informal hearings on pre-war
intelligence. Lawrence Wilkerson,
former Chief of Staff to Secretary of State Colin Powell, testified that “the
Vice President was using portions of the intelligence documents in ways that the
documents themselves did not seem to report …. [and that] [o]thers in the
Administration were participating in the distortion.” At the hearing, Wayne White, the former
Deputy Director of the State Department’s Office of Analysis for the Near East
and South Asia, testified that the most senior Administration officials involved
“did intervene in the process of intelligence analysis…
.”
Cover-ups and Retribution: The
·
On
April 6, Special Counsel Fitzgerald filed documents with the federal court
indicating that President Bush had authorized the Vice President’s former Chief
of Staff, Scooter Libby to leak classified information to the press in an effort
to undermine Ambassador Wilson.
Fitzgerald wrote that Libby “testified that he was specifically
authorized to disclose the key judgments of the classified NIE to [former New
York Times reporter Judith] Miller, and that “[defendant further testified that he at
first advised the Vice President that he could not have this conversation with
reporter Miller because of the classified nature of the NIE Defendant testified that the Vice
President later advised him that the President had authorized defendant to
disclose the relevant portions of the NIE.” The following day, White House Press
Secretary Scott McClellan responded to the leak by stating, “There is a
difference between providing declassified information to the public when it's in
the public interest and leaking classified information that involved sensitive
national intelligence regarding our security.”
·
In the
April 6 filing Mr. Fitzgerald further described a “concerted action” by
“multiple people in the White House” using classified information to “discredit,
punish or seek revenge against” Ambassador Wilson. He also found that the Vice President
and his staff perceived
·
On
April 9, 2006, The Washington Post
reported that what the Special Counsel did not mention was that “the evidence
Cheney and Libby selected to share with reporters had been disproved months
before.” At Cheney’s instruction,
Libby was to tell Miller some of the key judgments of the NIE “and that the NIE
stated that
·
On May
25, the National Journal reported
that on September 29, 2003, three days after it had become known that the CIA
had asked DOJ to investigate the outing of Valerie Plame, “Robert Novak
telephoned White House senior adviser Karl Rove to assure Rove that he would
protect him from being harmed in the investigation, according to people with
firsthand knowledge of the federal grand jury testimony of both men.” On the same day it was disclosed in a
court filing by Mr Fitzgerald that the Vice President was personally angered and
upset by Ambassador Wilson’s column.
·
On June
8, Murray Waas reported that Attorney General Ashcroft had been personally
briefed on the Valerie Plame investigation for a full two months in later 2003
prior to his recusal on December 30, 2003. These briefings occurred after Mr.
Ashcroft had been informed that Scooter Libby and Karl Rove were “trying to
mislead the FBI to conceal their roles in the leak, according to government
records and interviews.” According
to legal ethics expert Professor Stephen Gillers, the Attorney General should
have recused himself “once he learned the people professionally trained to draw
these inferences believed there was substantial reason that Rove and Libby were
involved in the leak.”
·
On July
11, Robert Novak finally acknowledged that Karl Rove had been one of the sources
for his column outing Valerie Plame as a CIA
operative.
Cover-ups and Retribution: Other Instances of Bush Administration
Retribution Against its Critics
·
On
February 16, Samuel J. Provance, an Army intelligence officer, testified that he
was demoted and stripped of his clearance after speaking out in 2004 about the
abuse of detainees at the Abu Ghraib prison. Provance stated, “[w]hen I made clear to
my superiors that I was troubled about what had happened [at Abu Ghraib] I was
shown that the honor of my unit and the Army depended on either withholding the
truth or outright lies.” He added
that his military career had been “derailed” and his duties in
·
On
February 7, 2006, Warren P. Strobel of Knight Ridder reported that a State
Department reorganization led by then Undersecretary of State John Bolton
targeted key career weapons experts.
A dozen State Department employees wrote that “the process has been
gravely flawed from the outset, and smacks plainly of a political vendetta
against career Foreign Service and Civil Service (personnel) by political
employees.”
Thwarting Congress and the American Public:
The Death of Accountability under the Bush Administration and the
Republican-Controlled Congress
· After Representative Conyers and 51 other Members of Congress sent the initial Freedom of Information Act request regarding the Downing Street Minutes on June 30, 2005 to the State Department and the Defense Department, and after two follow-up letters to the State Department (dated September 19, 2005 and April 19, 2006) and two follow-up letters to the Defense Department (dated July 28, 2005 and April 19, 2006), the State Department finally furnished some documents in a letter dated April 21, 2006. The 28 documents from the State Department include only written and publicly given statements by then-Secretary Powell, questions taken by a State Department spokesman, and press releases – all of the documents were simply taken from the State Department’s website. As of this date Rep. Conyers has not received a response from the Defense Department regarding his narrowed request for documents and request for a public interest fee waiver.
Unlawful
Domestic Surveillance and the Decline of Civil Liberties Under the
Administration of George W. Bush
·
On June 21, Salon reported that in addition to
maintaining a secret room in
·
On June 26, Jane
Mayer of The New Yorker wrote a
lengthy article detailing the extent Cheney advisor David Addington had excluded
key decision makers – including then Secretary of State Powell and National
Security Advisor Rice – from being able to raise questions concerning the
domestic wiretapping program and other controversial Administration
initiatives. Among other
direct quotes included in the article were Powell’s statement when he belatedly
learned about the NSA wiretap program that “[i]t’s Addington. He doesn’t care about the
Constitution;” former Reagan DOJ
official Bruce Fein’s statement that “the idea of reducing Congress to a
political cipher was already in play.
It was Cheney and Addington’s political agenda;” ex-Pentagon lawyer
Richard Shiffrin indication after a White House meeting that he was “left with
the impression that Addington ‘doesn’t believe there should be co-equal
branches,’” while another participant added, “if you favored international law,
you were in danger of being called ‘soft on terrorism’ by
Addington.”
·
On June 30, USA Today updated their story concerning
the NSA’s domestic database program based on discussions with numerous members
of the House and Senate Intelligence Committees. The paper reported that 19 lawmakers
confirmed the existence of the massive telephone database program; 5 members
confirmed that AT&T participated in the program; and 3 members confirmed
that while Verizon was not involved, its new subsidiary, long distance company
MCI did participate. USA Today also reported that 5 Members
informed them that BellSouth did not directly participate in the program, but
Senator Saxby Chambliss indicated BellSouth customers could be tracked through
long distance calls routed through AT&T. Another lawmaker acknowledged that
“[t]he database is not complete. We
don’t know if it works yet.”
·
On June 30, the
Supreme Court issued their landmark ruling in Hamdan v. Rumsfeld. As a matter of law the decision held
that President Bush’s order creating rules for military tribunals was
inconsistent with both federal law (in the form of the Uniform Code of Military
Justice) and international treaty obligations (in the form of Article 3 of the
Geneva Conventions). The majority opinion by Justice Stevens
reasoned “the Executive is bound to comply with the Rule of Law,” while Justice
Breyer and Kennedy wrote in concurring opinions that “Congress has not issued
the executive a blank check,” and “the Constitution is best preserved by
reliance on standards tested over time and insulated from the pressure of the
moment.” On July 11, the Pentagon
issued a memorandum acknowledging that all detainees held by the
·
More importantly,
the decision undercuts the Administration’s legal rationalization supporting
many of their other secret programs, including the NSA’s domestic warrantless
wiretap program. Harvard Law
Professor Tribe stated that the Administration’s legal argument for the NSA
program “is blown out of the water and is obliterated.” Even the principal legal architect of
many of the Administration’s program, former DOJ official John Yoo, admitted the
Hamdan decision “could affect detention conditions, interrogation
methods, the use of force” and other Administration
programs.
·
With regard to the
Administration’s argument that the AUMF authorized increased presidential
authority regarding tribunals, the Court wrote, “[T]here is nothing in the text
or the legislative history of the AUMF even hinting that Congress intended to
expand or alter” the Military Code of Justice statute. This holding should apply with
equal force against the Administration’s AUMF argument in the context of its
warrantless wiretapping program.
Justice Kennedy also rejected the Administration’s contention that the
President could act with greater authority than the applicable statute specified
during time of war, writing “[i]f the President has exceeded [the limits set by
statute], this becomes a case of conflict between the Presidential and
congressional action – a case within Justice Jackson’s third category [in the
Steel Seizure case where presidential authority is at its lowest ebb],
not the second or first.” The Court
also rebuffed any contention that
the President has “inherent authority” to act in a war time setting in
contravention of law, writing in a key footnote that “[w]hether or not the
President has independent power, absent congressional authorization, to convene
military commissions, he may not disregard limitations that Congress has, in
proper exercise of its own war powers, placed on his powers.”
·
On July 9, it was
revealed that the Chairman of the House Intelligence Committee, Peter Hoekstra
(R-MI), had written a letter to President Bush, charging the Administration with
possible violations of the National Security Act for failing to properly brief
the Committee concerning covert programs, stating, “the U.S. Congress simply
should not have to play Twenty Questions to get the information that it deserves
under our Constitution.” In his
letter, Mr. Hoekstra indicated that there were additional secret programs that
he had recently been apprised of a result of information provided by
whistleblowers and which had not yet been made
public.
A.
Determination
to go to War Before Congressional Authorization
Misleading Congress and the
American Public Concerning the Decision to go to War, Determination to Go to War
Before Congressional Authorization
Our investigation has found that President
Bush and members of his Administration made numerous public statements to the
effect that a decision had not been made to invade
Among other things, we have found: Immediately after the September 11
attacks, President Bush and members of his Administration displayed an immediate
inclination to blame Iraq B the President asked Richard Clarke to
determine if Hussein is Alinked in any way;@ White House officials instructed Wesley
Clark to state that the attack was Aconnected to Saddam Hussein;@ and Undersecretary of Defense Douglas Feith
proposed that the U.S. select Aa non al-Qaeda target like Iraq.@
The Downing Street Minutes provide unrebutted documentary evidence that
in the spring and summer of 2002 it was understood by the Blair government that
the Bush Administration had irrevocably decided to invade
Among other things, we have also found: The
Amarketing@ campaign for the war which included the
creation of the so-called AWhite House Iraq Group;@ the Arollout of speeches and
documents;@ the release of a white paper inaccurately
describing a Agrave and gathering danger@ of
Unauthorized War Actions and
Provocations
Our investigation has found that there is
evidence the Bush Administration redeployed military assets in the immediate
vicinity of
Among other things, we have found: A military commander told Senator Bob
Graham in February 2002 that A[w]e are moving military and intelligence
personnel and resources out of Afghanistan to get ready for a future war in
Iraq;@ and A[b]y the end of July [2002], Bush had
approved some 30 projects that would eventually cost $700 million.@
The bombing campaign engaged in by the U.S. and Great Britain in 2002 and
early 2003 involved more than 21,000 sorties and hundreds of thousands of pounds
of bombs, has been described as Aa full air offensive;@ and a former U.S. combat veteran stated
that based on what he had witnessed, A[t]he war had already begun.@
B.
Misstating
and Manipulating the Intelligence to Justify Preemptive
War
Links to September 11 and al
Qaeda
Our investigation has found that President
Bush and members of his Administration made numerous false statements regarding
linkages between
With regard to general linkages between Iraq
and al Qaeda, members of the Bush Administration ignored at least five separate
reports from within their own Administration, including
·
a
report shortly after September 11 prepared by Counterterrorism Coordinator
Richard Clarke finding no connection with
·
a
September 21, 2001 classified intelligence briefing that Athe
·
a June
21, 2002 CIA report which found Ano conclusive evidence of cooperation on
specific terrorist operations.@
·
the
October 2002 NIE, which gave a ALow Confidence@ rating to the notion of A[w]hether in desperation Saddam would share
chemical or biological weapons with Al Qa'ida.@
·
a
January, 2003 CIA report that the
AIntelligence Community has no credible
information that
The evidence that members of the Bush
Administration sought to manipulate and pressure intelligence officials on this
linkage includes Deputy Director of the CIA Richard Kerr=s report that people at the CIA have stated
they have been Apushed too hard@ on this point and felt Atoo much pressure;@ a CIA ombudsman who reported unprecedented
Ahammering@ on this issue; an FBI official who stated
that the ABush administration...was misleading the
public in implying there was a close connection [between Iraq and al
Qaeda];@ and former CIA Agent Paul Pillar’s
statement that “[i]ntelligence was misused publicly to justify decisions that
had been already made.”
We also have found evidence that Vice
President Cheney=s December 9, 2001 statement that the
meeting between Mohammed Atta and an Iraqi intelligence official in
Statements by President Bush on October 7,
2002 that AIraq has trained al Qaeda members in
bomb-making and poisons and deadly gases;@ and Secretary Powell on February 5, 2003,
Atrac[ing] the story of a senior terrorist
operative telling how Iraq provided training in these weapons to
Al-Quaeda;@ with both saying this relationship goes
back for Adecades@ were also false. Among other things, we have found that a
declassified Defense Intelligece Agency report from February 2002 indicated that
the source of this information, Ibn al-Shaykh al-Libi, Awas intentionally misleading the debriefers
in making these claims;@ that it was unlikely any relationship
between Iraq and al Qaeda went back decades since ASaddam=s regime is intensely secular and wary of
Islamic revolutionary movements;@ a classified CIA report found that Mr.
al-Libi was Anot in a position to know if any training
had taken place;@ and Administration officials knew or should
have known he fabricated his statements to avoid torture.
Resumed Efforts to Acquire
Nuclear Weapons
Our investigation has found that President
Bush and members of his Administration made false statements regarding
The Bush Administration appears to have
ignored numerous intelligence reports indicating that there was no credible
evidence of an ongoing nuclear program in
·
a 1999
IAEA report that there was Ano indication that
·
British
intelligence officials confirmation that
·
the
pre-2002 CIA NIE indicating that
There is also evidence that the Vice
President=s statement on August 26, 2002 that the
Administration has learned about Hussein=s efforts to reacquire nuclear weapons from
ASaddam=s own son-in-law,@ Hussein Kamel al-Majid, was knowingly or
recklessly false. This is first
because Kamel was killed in February, 1996, so he Acould not have sourced what
President Bush=s statement on September 7, 2002 that the
IAEA had issued a new report that
Aluminum
Tubes
Our investigation has found that President
Bush and members of his Administration made numerous false statements that
Members of the Bush Administration appear to
have ignored reports and information provided by at least five agencies and
foreign intelligence sources,
including:
·
several
reports by the Department of Energy which found that the tubes were Atoo narrow, too heavy, to long B to be of much practical use in a
centrifuge.@
·
the
State Department=s INR [Bureau of Intelligence and Research],
which Aconsiders it far more likely that the tubes
are intended for another purpose.@
·
the
Defense Department which found the tubes Awere perfectly usable for
rockets.@
·
British
Intelligence which found the tubes would require Asubstantial re-engineering@ to serve as
centrifuges.
·
The
International Atomic Energy Agency which found Aall evidence points to that this is for the
rockets@
·
a
one-page summary of National
Intelligence Estimate personally delivered to President Bush in October, 2002,
concluding that both the Energy and State Departments believed the aluminum
tubes were “intended for conventional weapons.”
Statements by the Vice President and Ms. Rice that they knew about
Iraq=s proposed use of the tubes for centrifuges
with Aabsolute certainty@ and that the tubes were Aonly really suited for nuclear weapons
programs@ are particularly questionable, since the
dispute within the Administration has been described as a Aholy war@ and Administration sources have stated that
Ms. Rice Awas aware of the differences of
opinion@ and that her statements were Ajust a lie.@
The evidence also shows that a September 8
lead article in The New York Times and a July 29, 2002 article in The
Washington Times included classified information leaked by Administration
officials. Among other things,
The New York Times article quoted Aanonymous@ Administration officials as stating that
AIraq has stepped up its quest for nuclear
weapons and has embarked on a worldwide hunt for materials to make an atomic
bomb;@ and The Washington Times article
stated, AU.S. intelligence agencies believe the
tubing is an essential component of Iraq=s plans to enrich radioactive uranium to the
point where it could be used to fashion a nuclear bomb.@
Special Prosecutor Fitzgerald has also filed documents detailing that
President Bush authorized the leaking of classified information to the press in
order to undermine Ambassador Wilson.
Acquisition of Uranium from
We have found that President Bush and
members of his Administration made numerous false statements that
There is evidence that members of the Bush
Administration, including the Vice President, have elevated intelligence
information which supports this claim without adequate scrutiny, and may have
applied undue pressure to intelligence officials to reach these
conclusions. Among other things, a
former high level CIA official has stated that when CIA personnel were unable to
verify these claims Cheney became dissatisfied and it Awas the beginning of what turned out to be a
year-long tug-of-war between the C.I.A and the Vice-President=s office;@ another senior official reported that CIA
analysts got Apounded on, day after day@ on these issues; two former CIA officials
explained that information on the charge was Apassed directly to Washington without
vetting them in the [U.S.] Embassy@ in Rome; and former CIA agent Tyler
Drumheller told 60 Minutes “[t]he war in Iraq was coming. And they [the Administration] were
looking for intelligence to fit into that policy.”
The Bush Administration ignored numerous,
contrary intelligence findings before making these false statements,
including:
·
Ambassador Wilson=s finding that Ano one had signed such a
document.@
·
the
CIA=s warning to to Ms. Rice directly that
Athe evidence is weak.@
·
the
State Department=s finding that the charges were Ahighly dubious.@
·
statements by French Intelligence
authorities that the story “doesn=t make any sense.”
·
the
conclusion of the National Intelligence Council, delivered to the White House in
January, 2003, that the
The President=s own statement in his State of the Union
that Athe British government has learned that
Saddam Hussein recently sought significant quantities of uranium from
Africa@ is particularly difficult to defend, given
that, among other things, the CIA had told the President=s staff before his October 7, 2002 speech
that the APresident should not be a fact witness on
this [Niger-Uranium] issue;@ the CIA Araised several concerns about the
fragmentary nature of the intelligence@ before the State of the Union; and after
the speech his Administration informed the UN it Acannot confirm [the uranium]
reports@ (which the IAEA quickly found to be
Anot authentic@).
Chemical and Biological
Weapons
Our investigation has found that President
Bush and members of his Administration have made numerous false statements
regarding
We have found evidence that members of the
Bush Administration made misleading statements regarding
Further, there is evidence of the misleading
nature of the Bush Administration=s misstatements regarding mobile chemical
weapons laboratories by virtue of the fact that they ignored numerous contrary
information provided by the German and British Intelligence, as well as CIA
officials. Among other things, German Intelligence informed the Administration
A[t]his [Curveball] was not substantial
evidence . . . [w]e made clear we could not verify the things he
said;@ British Intelligence officials informed the
CIA they are Anot convinced that Curveball is a wholly
reliable source;@ and shortly before Mr. Powell=s speech, the CIA doctor who had met with
Curveball noted that he Awas deemed a fabricator,@ only to be told by his superior that
Athis war=s going to happen regardless of what
Curveball said or didn=t say.@
Given the depth and credibility of these concerns, it is particularly
difficult to defend the President=s statement in his January 28, 2003 State of
the Union Address that as a result of information provided by defectors
Awe know that Iraq, in the late 1990s, had
several mobile biological weapons labs . . .designed to produce germ warfare
agents and can be moved from place to a place to evade inspectors.@
Finally in this regard, there is also
evidence that then Secretary of State Powell and President Bush also made
knowingly or recklessly false claims regarding
C.
Encouraging
and Countenancing Torture and Cruel, Inhuman, and Degrading
Treatment
Our investigation has found that there is
evidence that individuals within the Bush Administration have violated a number
of domestic laws and international treaty obligations concerning the
mistreatment of detainees, including the Anti-Torture Statute, 18 U.S.C.
' 2339; the War Crimes Act; 18 U.S.C.
' 2441; the Geneva and Hague Conventions; the
Convention Against Torture, Cruel, Inhuman, and Degrading Treatment; and the
legal principle of command responsibility.
Department of
Justice
We have identified evidence that then
Attorney General Ashcroft and then White House Counsel Gonzales may bear
responsibility for unlawful removal of detainees from
Then Attorney General Ashcroft also appears
to be responsible for approving a legal memorandum defining torture as acts
consisting of Aextreme acts@ inflicting Asevere pain,@ such as that accompanying Adeath or organ failure,@ which such standard is inconsistent with
the Anti-Torture Stature, 18 U.S.C. ' 2339.
Finally, there is further evidence that Attorney General Gonzales bears
responsibility for adopting a legal position that the ban on cruel, inhuman, and
degrading treatment (CID) does not apply to detainees held outside of the United
States, in contravention of the Convention Against Torture, Cruel, Inhuman and
Degrading Treatment. Among other
things, the former Legal Adviser to the U.S. Department of State has concluded
that the ban on CID Awould apply outside the
Department of Defense and
CIA
There is evidence that Secretary Rumsfeld
bears responsibility for certain torture and other illegal conduct in violation
of the Anti-Torture Statute. Among
other things, Secretary Rumsfeld has approved a November 27, 2002 memorandum
which includes the Ause of scenarios designed to convince the
detainee that death or severely painful consequences for him and/or his family
are imminent.@
There is also evidence that Secretary
Rumsfeld is responsibile under the command responsibility doctrine. Among other things, Secretary Rumsfeld
has been appraised of numerous incidents of torture and CID as well as
Aghosting@ of detainees, yet has initiated no major
action to hold those who committed the acts responsible or effectuated policy
changes designed to prevent such misconduct from
reoccurring.
There is also evidence that both Secretary
Rumsfeld and then CIA Director Tenet have personally been aware of and approved
the Aghosting@ of at least one, and potentially further
detainees, in potential violation of the
D.
Cover-ups
and Retaliation
The
Our investigation has found there is
evidence (i) the President has abrogated his obligation under Executive Order
12958 to take corrective action concerning acknowledged leaks of classified
information within his Administration; (ii) these leaks appear to have been
committed to, among other things, exact retribution against Ambassador Wilson
for disclosing that the Bush Administration should have known that the Niger
documents were forgeries; and (iii) then Attorney General Ashcroft participated
in a pending criminal investigation involving Karl Rove at a time when he had a
personal and political relationship with Mr. Rove in violation of applicable
conflict of interest requirements, namely 28 C.F.R. ' 452, ' 2-2.170 of the U.S. Attorneys Manual, and
Sec. 1.7(b)(4) of the D.C. Rules of Professional Conduct. In addition, we have found that there
have been a number of misstatements, and delays by Members of the Bush
Administration since the criminal investigation into the leak was
commenced.
There is evidence as documented in the Libby
Indictment and related media accounts that at least four administration
officials (including Mr. Libby and Mr. Rove) called at least five Washington
journalists (Ms. Miller, Mr. Novak, Mr. Cooper, Mr. Pincus, and Mr.
Woodward) and disclosed the identity and occupation of Wilson=s wife as a CIA operative. These disclosures do not appear to have
been inadvertent, rather they were, according to relevant reporters Agiven to me;@ Aunsolicited;@ and obtained when the Administration
official Aveered@ off topic. While it is uncertain
whether these leaks violated specific criminal laws, there appears little doubt
that leaks by Mr. Rove and Mr. Libby violated the requirements of their
non-disclosure obligations, including Executive Order 12958 concerning the
protection of national security secrets.
This Order applies not only to negligent disclosure of classified
information but also to persons simply Aconfirming@ information to the media. Under the Executive Order, the President
B about whom Robert Novak now claims he would
Abe amazed@ if he did not know the leaker=s identity B
has an affirmative obligation to take Aappropriate and prompt corrective
action.@ (As Newsweek explained: A[a]ny reasonable reading of the events
covered in the indictment would consider Rove=s behavior Areckless [under the EO].@)
There is significant evidence that the motivation for disclosure of Ms.
Plame=s name was to obtain retribution against
Ambassador Wilson. Among other
things, our investigation has shown that the White House strategy concerning Mr.
Wilson was to Aslime and defend;@ Karl Rove reportedly admitted that Mr.
Wilson=s wife Ais fair game;@ a former Administration official
acknowledged they Awere trying to not only undermine and trash
Ambassador Wilson, but to demonstrate their contempt for CIA by bringing
Valerie=s name into it;@ and Special Prosecutor Fitzgerald described
a “concerted action” by “multiple people in the White House” using classified
Information to “discredit, punish, or seek revenge” against Ambassador Wilson,
and released a hand written note by the Vice President specifically questioning
the Ambassador’s actions.
There is also evidence that then Attorney
General Ashcroft violated applicable conflict of interest requirements, namely
28 C.F.R. ' 452, Sec. 2-2.170 of the U.S. Attorneys
Manual, and Sec. 1.7(b)(4) of the D.C. Rules of Professional Conduct. Even though Mr. Rove had previously
advised Mr. Aschcroft as a political candidate (earning almost $750,000 for his
services) and was considered by many to be responsible for Mr. Ashcroft being
named as Attorney General, the Attorney General was personally and privately
briefed on FBI interviews with Karl Rove.
It has also been reported that then Attorney General Aschcroft had been
personally briefed on the Plame investigation a full two months after he was
informed that Scooter Libby and Karl Rove were “trying to mislead the FBI to
conceal their roles in the leak, according to government records and
interviews.” This conflict raises serious questions
regarding the one-month delay between the time the CIA contacted the Department
of Justice regarding possible criminal misconduct and the time the Department
initiated a criminal investigation, the Department=s subsequent delay in notifying the White
House Counsel, and the White House Counsel=s delay in asking White House staff to
preserve relevant evidence. This
may also explain why an FBI official admitted that the Department was
Agoing a bit slower on this one because it is
so high-profile.@
We have also found evidence that there have
also been a number of additional misstatements by members of the Bush
Administration concerning the leak, as well as numerous delays that they have
caused. Among other things, then
White House Press Secretary Scott McClellan is responsible for at least eight
misstatements concerning the involvement of Mr. Rove, Mr. Libby and other
Administration officials in the leak, and Karl Rove also appears to have falsely
denied whether he leaked the name or had Aany knowledge@ of the leak. There is also evidence Vice President
Cheney misspoke on national television in September 2003, when he denied
knowledge of who sent Mr. Wilson to
Other Instances of Bush
Administration Retribution Against its Critics
We have also found evidence that members of
the Bush Administration have engaged in a pattern of seeking to exact
retribution against a series of individuals, both inside and outside of the
Administration, who have exposed wrongdoing or otherwise criticized their
misconduct with regard to the Iraq War.
There is evidence that the Army=s actions in demoting Bunnatine Greenhouse
as the Chief Contracting Officer of the Army Corps of Engineers was in
retribution for her testimony before Congress that undue favoritism was shown
toward Halliburton in awarding contracts in Iraq. Among other things, it has been charged
that "they went after her to destroy her;" and reported that A[h]er crime was not obstructing justice but
pursuing it by vehemently questioning irregularities in the awarding of some $7
billion worth of no‑bid contracts in Iraq to the Halliburton subsidiary Kellogg
Brown & Root.@
There is also evidence that members of the
Bush Administration improperly harmed General Erik Shinseki by leaking the name
of his replacement 14 months before his retirement, rendering him a lame duck
and, according to media accounts, Aembarrassing and neutralizing the
Army=s top officer.@
This appears to have been done in retaliation for his testimony before
the Senate Armed Services Committee that the Defense Department=s troop estimate was too low and
Asomething on the order of several hundred
thousand soldiers@ would be needed. Among other things, an official
acknowledged, Aif you disagree with them in public,
they=ll come after you, the way they did with
Shinseki;@ while others have stated AShinseki was publicly humiliated for
suggesting it would take hundreds of thousands of troops to secure a post-Saddam
Iraq.@
There is further evidence that members of
the Bush Administration sought to exact political retribution against a number
of other individuals who exposed their misconduct regarding
Ongoing Lies, Deceptions,
and Manipulation
Our investigation has found that the pattern
of misstatements by individuals in the Bush Administration has continued well
after the invasion of
Among other things, President Bush and Vice
President Cheney have made misstatements such as the President declaring on May
1, 2003 that Amajor combat operations in Iraq have
ended@ and the Vice President stating in June,
2005, that Athey=re in the last throes, if you will, of the
insurgency.@
On October 4, 2005, President Bush stated that there were A30 Iraqi battalions in the lead;@ when his own generals found that the number
of combat ready Iraqi battalions had declined from 3 to 1. In May 2003, President Bush stated
Awe found the weapons of mass destruction;
and Secretary Powell asserted Awe have found the biological weapons
vans;@
however, on The Washington Post subsequently reported that on May
27, 2003, a U.S./U.K. fact finding mission issued a unanimous 122-page report
concluding that the vans “had nothing to do with biological
weapons.”
E. Domestic
Spying
The warrantless wiretap program disclosed by
The New York Times directly violates the Foreign Intelligence
Surveillance Act, 50 U.S.C. § 1801; and the warrant requirement of the Fourth
Amendment, and, just as dangerously, threatens to create a precedent that may be
used to violate numerous additional laws.
The NSA’s domestic database program disclosed by USA Today also appears to violate the
Stored Communications Act and the Communications Act of 1934. In addition, the Administration appears
to have briefed Members of the Intelligence Committees regarding these programs
in violation of the National Security Act, 50 U.S.C. § 401, and we have found
little evidence they provided useful intelligence or law enforcement
information.
Legal Violations
With regard to the warrantless wiretapping
program, there is little doubt that the AUMF was not intended by Congress to
statutorily authorize domestic surveillance as the Administration contends. The Senate Majority Leader Tom Daschle
has directly contradicted the Administration’s argument, writing that the Senate
rejected a “last-minute change [from the White House that] would have given the
president broad authority to exercise expansive powers not just overseas – where
we all understood he wanted authority to act – but right here in the United
States, potentially against American citizens.” The Attorney General himself
acknowledged that Congressional leaders told him it would be “difficult, if not
impossible” to obtain Congressional approval for warrantless domestic
surveillance. The Bush
Administration’s argument that the Hamdi case (involving the detention of
enemy combatants) supports their expansive view of the AUMF is also not
credible. Among other experts,
noted constitutional scholar Professor Laurence Tribe explains, it is difficult
to argue that Hamdi supports the idea
of warrantless surveillance of Americans, when they “are not even alleged to be enemies, much less enemy combatants.” Likewise, the Administration’s argument
that the AUMF would constitute a statutory exception as envisioned by FISA is
contradicted by the legislative history as well as the review by the
non-partisan Congressional Research Service. Perhaps most significantly, in the
recent Hamdan decision, the Supreme
Court held that with regard to the analogous situation of military tribunals,
there was “nothing in the text of the legislative history of the AUMF even
hinting that Congress intended to expand or alter” the Administration’s legal
authority.
The Administration’s assertion that it
nonetheless has inherent constitutional authority to engage in domestic spying
pursuant to the Youngstown Steel
Seizure case is directly contradicted by the House-Senate Conference Report
regarding FISA, which stated it is “[t]he intent of the conferees is to apply
the standard set forth in Justice Jackson’s concurring opinion in the Steel Seizure case: ‘When a President takes measures
incompatible with the express or implied will of Congress, his power is at the
lowest ebb, for then he can rely only upon his own constitutional power minus
any constitutional power of Congress over the matter.’” With regard to the Bush Administration’s
contention that a passage in the In re
Sealed Case supports their inherent authority to conduct domestic
warrantless surveillance these cases are inoperative, as they are all
pre-FISA. The Congressional
Research Service has concluded, “[i]n the wake of FISA’s passage, the Court of
Review’s reliance [in the In re Sealed
Case] on these pre-FISA cases ... as a basis for its assumption of the
continued vitality of the President’s inherent authority ... might be viewed as
somewhat undercutting the persuasive force of the Court of Review’s
statement.” Again, of particular
importance in the Hamdan decision, the Court shot down the Administration’s
“inherent authority” argument, writing, “[w]hether or not the President had
independent power, absent congressional authorization, to convene military
commissions, he may not disregard limitations that Congress has, in proper
exercise of its own war powers, placed on his powers.”
With regard to the Fourth Amendment, the
Department of Justice’s assertion that warrantless domestic spying should be
considered “reasonable” pursuant to the “special needs” exception to the
Amendment’s warrant requirement is undermined by the overwhelming weight of case
law. This is summarized in the
letter signed by Reagan FBI Director William Sessions and other legal experts
(“the NSA spying program has none of
the safeguards found critical to upholding ‘special needs’ searches in other
contexts”). It is also difficult
for the Administration to assert that warrantless surveillance is “reasonable”
within the meaning of the Fourth Amendment when national security lawyers
working for the Bush Administration have admitted that the low “washout” rate
associated with the domestic spying program make it doubtful the program could
be deemed sufficiently reasonable to pass muster under the Fourth
Amendment.
The NSA’s domestic database program would
appear to violate both the Stored Communications Act, which prohibits the
knowing disclosure of customer telephone records to the government, and the
Communications Act, which prohibits the disclosure of telephone records to third
parties. If the information was
obtained on a “real time basis,” as some government sources have indicated, it
would also constitute a criminal violation of the Pen Register and Trap and
Trace Statute.
With regard to the National Security Act,
that law clearly specifies that the President is required to keep all Members of
the House and Senate Intelligence Committees “fully and currently informed” of
all intelligence activities except in the case of a highly classified covert
action. Based on their review, the
non-partisan Congressional Research Service concluded, “the NSA surveillance
program would appear to fall more closely under the definition of an
intelligence collection program, rather than qualify as a covert action program
as defined by statute.”
Of additional concern is the fact that the
legal justifications developed by the Bush Administration to support the NSA
programs threaten to endanger even greater rights and liberties. For example, during the course of House
Judiciary Committee hearings, Attorney General Gonzales acknowledged that based
on these legal considerations he was “not going to rule out” the intentional
surveillance of purely domestic communications without a court approved
warrant. As Republican Senator
Lindsey Graham warned, “you could use the inherent authority argument of a
Commander-in-Chief at a time of war to almost wipe out anything Congress wanted
to do.”
At the same time the domestic spying
programs have intruded on the civil liberties of millions of Americans, there is
little evidence they have provided any appreciable intelligence or law
enforcement benefit, and may have jeopardized numerous terrorism
prosecutions. Government officials
“have dismissed nearly all of [the NSA call leads] as potential suspects afer
hearing nothing pertinent to a terrorist threat,” stating that “[t]he
information was so thin, and the connections were so remote, that they never led
to anything,” with FBI agents “jok[ing] that a new bunch of tips meant more
calls to the Pizza Hut.” FISA
judges have testified that “the [warrantless wiretapping] program could imperil
criminal prosecutions that grew out of the wiretaps.” With regard to the domestic database
program, an administration official “questioned whether the fruits of the NSA
[database] program … have been worth the cost to privacy; while a Pentagon
consultant admitted, “[t]he vast majority of what we did with the [NSA]
intelligence was ill-focused and not productive.”
Evidence of Misleading Statements and
Possible Bad Faith
President Bush and other high ranking members of the Bush Administration
appear to have made a number of misleading statements concerning the NSA
programs to Congress and the public.
These include statements that (i) the government was only intercepting
communications involving Americans pursuant to court approved surveillance;
(ii) no purely domestic
communications were intercepted under the warrantless wiretapping program; (iii)
the government is not monitoring telephone calls and other communications within
the U.S.; (iv) Members of Congress briefed by the Bush Administration had not
questioned the legality or propriety of the NSA programs; and (v) if the
surveillance programs had been in place prior to September 11, the government
could have prevented the Al Qaeda attacks.
We have also found evidence the NSA programs were developed in a manner
designed to stifle legitimate opposition within the
Administration
With respect to the issue of whether the
government engaged in domestic warrantless wiretapping, President Bush and
members of his Administration made a number of misleading statements. Among other things, prior to the
disclosure by The New York Times, then Associate Attorney General David
Kris testified that “both before and after the PATRIOT Act, FISA can be used
only against foreign powers and their agents;” President Bush himself declared
that “any time you hear the United
States government talking about wiretap, it requires ...a court order;” and Attorney General Gonzales testified
“it’s not the policy or the agenda of this President to authorize actions that
would be in contravention of our criminal statutes.”
The Bush Administration’s claims that no
domestic communications were intercepted under the warrantless wiretapping
program also appear to be misleading.
Government officials have acknowledged that the eavesdropping program
“has captured what are purely domestic communications.” The Washington Times reported that
government sources stated, “the National Security Agency in cooperation with the
FBI was allowed to monitor the telephone calls and e-mails of any American
believed to be in contact with a person abroad suspected of being linked to al
Qaeda or other terrorist groups.”
Similarly, the Administration’s claims that
the government was not monitoring calls or, in President Bush’s words “trolling
through the personal lives of millions of innocent Americans” within the U.S. is
belied by the USA Today revelations,
as well as previous revelations by The
New York Times (telecommunications companies “have been storing information
on calling patterns and giving it to the federal government”); former AT&T
employee Mark Klein (the NSA set up “secret room” in AT&T’s offices capable
of sweeping in telephone and Internet communications); and numerous reports of
government programs set up to replace the discredited “Total Information
Awareness” Program.
It also appears misleading for members of
the Bush Administration, such as White House Counselor Dan Bartlett, to state,
that lawmakers who have been briefed on the NSA programs “believed we are doing
the right thing.” In reality,
numerous Members of Congress raised legal concerns. Among other Members, the Ranking
Democrat on the Senate Intelligence Committee, Senator Rockefeller handwrote a
letter to Vice President Cheney, stating, “[c]learly, the activities we
discussed raise profound oversight issues,” and House Minority Leader Pelosi
stated, “she hadn’t been told all of the information included in the USA Today story.”
It also appears inappropriate for the
Administration to assert that the NSA warrantless surveillance programs could
have prevented the September 11 attacks, given that the 9/11 Commission
concluded the government had compiled significant information regarding the
responsible individuals and “took no action regarding them,” and the FBI “had
missed numerous opportunities to track down [the individuals] in the 20 months
before the attacks.”
The information we have been able to access
concerning the creation of the domestic spying program indicates that there is
evidence of possible bad faith in its development and implementation on the part
of the Bush Administration. For
example, officials within the Bush Administration have admitted that when the
domestic warrantless wiretapping program was created, “the ‘lawyers group,’ an
organization of fewer than half a dozen government attorneys the National
Security Council convenes to review top-secret intelligence programs, was
bypassed.” Newsweek reported that then counsel to
the Vice President David Addington and his allies “made sure the possible
dissenters [to the NSA wiretap program] were cut out of the loop,” and within
the Justice Department those who raised questions regarding the program “did so
at their peril; [they were] ostracized ... denied promotions, while others left”
DOJ entirely. It has also
been reported that the domestic database program was set up outside of the
Justice Department because “they feared that if they passed it down to other
departments that might have some purview over the program they might have
encountered a stream of objections.”
E.
Thwarting
and Stonewalling Congress and the American People
Members of the House and Senate have been
essentially stymied by both the Bush Administration and the Republican Congress
from obtaining information concerning the matters described in this Report. As David Broder wrote, AMajority Republicans see themselves first
and foremost as members of the Bush team B and do not want to make trouble by asking
hard questions.@
With regard to the allegations of abuse
concerning the Downing Street Minutes and Iraq, the President has refused to
respond to a letter from 122 Members of Congress, along with more than 500,000
Americans, asking him to explain whether the assertions set forth in the Downing
Street Minutes were accurate; House Republican Chairmen of all relevant
committees have refused to respond to a letter signed by 52 Members calling for
hearings concerning the Downing Street Minutes; and the Administration has
essentially ignored questions submitted by Democratic Members concerning false
statements regarding nuclear claims and other misstatements concerning the Iraq
war.
In addition, the Senate and House
Intelligence Committees have refused to conduct any meaningful investigation
concerning intelligence manipulation; House Republican Chairmen have refused
numerous requests by Members to conduct meaningful hearings on torture and other
abuses in
Members of the House and Senate have also by
and large been blocked by the Bush Administration from obtaining information
concerning the domestic spying scandals.
First, the Bush Administration rejected without explanation Democratic
requests for a special counsel to review the allegations of possible criminal
misconduct concerning warrantless domestic surveillance. Second, the Administration stymied any
meaningful attempt at congressional oversight, with Senate Judiciary Chairman
Specter complaining, “[t]hey want to do just as they please, for as long as they
can get away with it.” Moreover,
House Republican leaders rejected repeated Democratic proposals to create an
independent panel or commission to review the NSA program, while Republican
Committee Chairman rejected Democratic efforts to pursue Resolutions of Inquiry
directing the Bush Administration to respond to congressional inquiries. When the Senate Intelligence Committee
fell in line behind the Administration in rejecting an investigation, the
Ranking Democrat, John Rockefeller declared, “[t]he committee is, to put it
bluntly, basically under the control of the White House.” The Administration has pursued various
changes to FOIA and classification laws, and repeatedly invoked the states
secret doctrine in an effort to help insulate their conduct from outside or
court scrutiny.
Based upon our investigation of the misconduct of the Bush
Administration, we recommend that Congress should consider a number of actions
that could deter such abuses in the future, including:
·
Exercising its oversight responsibility to
obtain information from the Administration -- A number of bills have been introduced
that would provide authority to investigate the various allegations identified
in this Report. These include: (i) H. Res. 635, introduced by Rep. Conyers, establishing
a Select Committee to investigate the various charges identified in Part I of
this Report (The Committee would be equally comprised of Democrats and
Republicans, selected by the Speaker and the Minority Leader and make
appropriate recommendations if agreed to on a bipartisan basis); Sen. Robert Byrd (D-WV) and Rep. Conyers
introduced S. 2362 and H.R. 5223, to establish a blue ribbon commission to
investigate the various allegations identified in Part II of this Report; and
(iii) H.R. 3003, introduced by Rep. Waxman and nineteen other Ranking Members,
as well as the House Democratic Leader and House Democratic Whip, would
establish a bipartisan blue ribbon commission to investigate the alleged torture
and other abuses at Guantanamo and Abu Ghraib. None of these bills have received any
hearings or other consideration by the Republican
Majority.
·
Reaffirming that the Foreign Intelligence
Surveillance Act and the criminal code contain the exclusive means for
conducting domestic surveillance -- Under the guise of exercising oversight
of the warrantless surveillance, Republican Members of Congress have introduced
legislation that merely attempts to grant the program constitutional and legal
validation. To the extent
legislation is needed to improve intelligence gathering capabilities, the
preferable approach is to reaffirm that FISA and the criminal code contain the
exclusive means for conducting domestic surveillance, to the extent necessary,
and increasing resources for warrantless FISA wiretaps that may be authorized
under current law. Two bills have
been introduced this Congress to further this goal: (i) H.R. 4570, introduced by
Reps. Jane Harman (D-CA) and Conyers and (ii) H.R. 4976, introduced by Reps.
Adam Schiff (D-CA) and Jeff Flake (R-AZ).
·
Requiring the President to report on the
pardon of any individual who could implicate the President or other officials
implicated by pending investigations -- Congress should consider legislation
requiring that the President notify Congress of the pardon of any individual who
is or was an Administration official.
The notification should include the nature of the pardon and the effects
it might have on any pending investigations. Such legislation is needed to allow for
full disclosure should the President pardon individuals as a means of preventing
an investigation from running its course and, perhaps, uncovering information
critical of the Administration.
This is a particular concern because the President refused to respond to
a July 25, 2005 letter from Rep. Conyers seeking his assurance that he would not
pardon any former or current officials involved in the leak of CIA officer
Valerie Plame Wilson’s name.
·
Requiring the President to notify Congress
upon the declassification of classified information -- The Administration appears to have
selectively leaked numerous items of classified information to buttress their
case for war, and that President himself secretly authorized the
declassification of information without notice to the media in an effort to
respond to Ambassador Wilson’s op-ed concerning the Administration’s uranium
claims. The public would have
better access to information were the White House to issue public notices upon
declassification. Sen. Dianne
Feinstein (D-CA) has introduced S. 2660 to require such
notice.
·
Enhancing protections for national security
whistleblowers -- Federal
employees should be encouraged to try and correct and report wrongdoing at
federal agencies. Among other
things, Congress should consider limiting exemptions from the whistleblower
protection laws and permitting whistleblowers to report problems directly to
Congress and the President instead of having to go through an agency’s chain of
command. Sens. Daniel Akaka (D-HI)
and Frank Lautenberg (D-NJ) have proposed whistleblower reforms in S. 494 and S.
2285. Congress also should consider
legislation providing for a procedure to enable whistleblowers to enforce their
rights against reprisal by protecting them from Executive Branch assertions of
state secrets privileges, as provided for In H.R. 5112, introduced by Reps. Tom
Davis (R-VA) and Henry Waxman (D-CA).
·
Strengthening the authority of the Privacy
and Civil Liberties Oversight Board -- Upon the recommendation of the 9-11
Commission, Congress created a board to review the privacy and civil liberties
implications of White House policies.
Unfortunately, the Board was established within the Executive Office of
the President instead of as an independent agency. Under H.R. 1310, introduced by Rep.
Carolyn Maloney (D-NY), the Board would be independent of the President and
possess subpoena powers.
Congress also should take additional
measures to address the threat of terrorism, including:
·
Increasing funding for COPS and other first
responders and base anti-terror funding on risk not politics -- Despite the success of the Community
Oriented Policing Program in reducing crime across the country and the fact that
local police will be the first on the scene at any terrorist or other
catastrophic event, the Bush Administration continues to seek cuts in the
program’s funding. Congress should
make it a national priority to fully fund COPS and provide firefighters,
emergency workers, and police with the training, personnel, and technology they
need. In addition, anti-terrorism
funding for state and local governments should be based on need and terror risk,
not politics. Such proposals have
passed the House but were not considered in the Senate in the form of section
128 of H.R. 3199, the House-passed extension of the PATRIOT Act; H.R. 1544,
which was introduced by then-Homeland Security Committee Chairman Christopher
Cox (R-CA); and H.R. 1419, introduced by then-Rep. Robert Menendez
(D-NJ).
·
Implementing the 9/11 Commission
recommendations, including enhancing port, infrastructure, and chemical plant
security -- Only a small percentage of incoming
cargo is screened for potential terrorist threats, such as dirty bombs. While the House passed H.R. 4954 to
increase security, that bill failed to require screening of all cargo, to
increase the number of radiation portal monitors, and to require a review of
contracts for port operations where a terrorist-sponsored entity might be
involved. We also must secure our
airports, mass transit systems, chemical and nuclear plants, and food and water
supplies. Finally, this would
include ensuring that would-be terrorists do not have access to loose nuclear
materials.
·
Banning corporate trade with state sponsors
of terror and eliminating sovereign immunity protections for state sponsors of
terror -- Current law
prohibits
·
Enhancing Laws Against Wartime
Fraud -- Legislation should
be enacted to extend the statutes of limitations for criminal fraud perpetrated
by corporations against the
Our examination of both major matters described in this Report, “The Downing Street Minutes and Deceptions, Manipulation, Torture, Retribution and Coverups in the Iraq War,” and “Unlawful Domestic Surveillance and the Decline of Civil Liberties Under the Administration of George W. Bush,” has revealed a number of persistent and disturbing pattern of conduct involving the Bush Administration. This includes:
·
The
apparent willingness of members of the Bush Administration to see their
actions as not being subject the
law.
·
A
number of false and misleading statements made by members of the Bush
Administration which helped to cover up or delay disclosure of their
conduct.
·
Using
the power of the executive branch to threaten and undermine political opponents
of the Bush Administration.
·
Using
the tragic events of September 11 as a means of justifying unrelated objectives
of the Administration.
·
Acting
to limit possible oversight and accountability for the Administration’s
actions.
Thus, over the last six years, the Bush
Administration appears to have ignored a number of laws and legal requirements,
such as executive orders concerning the protection of national security secrets;
supervising an investigation of the Valerie Plame leak in a manner inconsistent
with conflict of interest requirements; mistreatment of detainees in possible
violation of international and domestic laws and treaties concerning torture and
cruel, inhuman and degrading treatment; warrantless domestic wiretaps and
customer telephone databases in contravention of the Foreign Intelligence
Surveillance Act, the Stored Communications Act and the Communications Act; and
failure to notify Members of the Intelligence Committees of intelligence
activities in violation of the National Security Act.
At the same time, all to frequently, members
of the Bush Administration appear to have placed political expediency above
veracity. Whether it was then White
House Press Secretary stating that “I spoke with [Karl Rove and Scooter Libby],
so that I could come back to you and say that they were not involved” in the
leak of Valerie Plame’s name,” or President Bush declaring that “any time you
hear the United States government talking about a wiretap it requires … a court
order,” there have been numerous
instances where political convenience appears to have taken precedence over the
principle of communicating fully, frankly, and honestly with the American people
and their representatives.
Our Report has also found a number of
instances where public criticism of the Bush Administration and their policies
has placed the careers of government officials and even their families’ careers
in jeopardy. Thus,
Bunnantine Greenhouse was demoted from the Army Corps of Engineers after she
testified the Administration was improperly favoring Haliburton in awarding
contracts in Iraq; Valerie Plame was outed as a covert CIA agent after her
husband wrote that the Iraq uranium claims were false; and attorneys at the
Department of Justice who questioned the NSA’s warrantless wiretapping program
“did so at their own peril” according to government
sources.
In terms of taking political advantage of
the September 11 tragedy, we learned that as early as January 30, 2001, former
Bush Secretary of Treasury Paul O’Neill stated that “[f]rom the beginning … . It
was all about finding a way” to get rid of Saddam, with the President saying “go
find me a way to do this;” while immediately after the September 11 attacks, the
White House told Wesley Clark,
“[y]ou got to say this is connected … . This has to be connected to
Saddam Hussein.” Both Vice
President Cheney and General Hayden sought to justify the Administration’s
domestic spying program by claiming it would have prevented the September 11
attacks, even though this was contrary to the findings of the 9-11 Commission,
causing Commission Member Bob Kerry to assert that the Administration claim was
“patently false and an indication that [Hayden] is willing to politicize
intelligence and use false intelligence to help the
President.”
The single overriding characteristic running
through all of the allegations of misconduct identified in our Report has been
the unwillingness of the Bush Administration to allow its actions to be subject
to any form of meaningful outside review.
Not only were 122 Members of Congress unable to obtain any response to
their questions posed regarding the Downing Street Minutes, but neither the
House nor the Senate has ever engaged in any serious review of the facts
surrounding the NSA domestic spying programs. The institutional damage resulting from
such constitutional neglect will likely be felt for many years, if not
generations.
The lesson of this Report is that if we
allow intelligence, military and law enforcement to do their work free of
political interference, if we give them requisite resources and modern
technologies, if we allow them to “connect the dots” in a straight forward and
non-partisan manner, we can protect our citizens. We all want to fight terrorism, but we
need to fight it the right way, consistent with our Constitution, and in a
manner that serves as a model for the rest of the world.
[1]. Larry King Live:
“Interview with Dick Cheney and Lynne Cheney” (CNN television broadcast, May 30,
2005) (emphasis added), available at http://transcripts.cnn.com/TRANSCRIPTS/0505/30/lkl.01.html.
[2]. Texas Governor George W.
Bush’s campaign focused on issues of “compassionate conservatism,” his stated
view that conservative policies could be brought to bear to address social
ills. Another focus of his campaign
was the perceived ethical transgressions of the Clinton Administration, and the
Starr Investigation in particular.
Governor Bush promised to restore “honor and dignity to the White
House.” “Capital Gang: Lieberman
Takes the Heat; Bush, McCain Meet in
[3]. See Commission on
Presidential Debates, Unofficial Debate Transcript, Oct. 3, 2000, available
at http://www.debates.org/pages/trans2000a.html. Vice President Cheney also stated in an
interview, in the midst the 2000 presidential campaign, that the US should not
act as though “we were an imperialist power, willy-nilly moving into capitals in
that part of the world, taking down governments.” Meet the Press: “Interview with
Vice President Dick Cheney” (NBC television broadcast, Aug. 27,
2000).
[4]. Bryan Burrough, Evgenia
Peretz, David Rose, & David Wise, “The Path to War,” Vanity Fair, May
1, 2004, at 228, 232.
[5]. President George W. Bush,
State of the Union Address (Jan. 29, 2002), available at http://www.whitehouse.gov/news/releases/2002/01/20020129-11.html.
[6]. President George W. Bush,
Graduation Speech at
[7]. On “multiple” occasions,
Cheney and Libby questioned analysts studying alleged
[8]. For example, on August
22, 2002, the President stated that he was willing to “look at all
options.” Adam Nagourney & Thom
Shanker, “A ‘Patient’ Bush Says He’ll Weigh All Iraq Options”, The New York
Times, Aug. 22, 2002, at A1.
Later that year, he stated, “Of course, I haven’t made up my mind we’re
going to war with
[9]. Frank Rich, “It’s
Bush-Cheney, Not Rove-Libby”, The New York Times, Oct. 16, 2005, at
12.
[10]. The President stated that
[11]. Letter from Dr.
[12]. President George W. Bush,
President Discusses
[13]. On October 7, 2002,
President Bush warned that the final proof of
[14]. H.J. Res. 114, 107th
Cong. 2d Sess. (2002) (enacted as Authorization for Use of Military Force
Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498
(2002)). Several Members of
Congress, including Ranking Member Conyers, filed suit in Federal court arguing
the resolution was Constitutionally deficient. Among other things, the suit alleged
that the text of the resolution did not explicitly invoke the War Powers Act and
unconstitutionally delegated the Congressional power to declare war to the
Executive Branch. The suit was
ultimately unsuccessful [Doe v. Bush, 323 F.3d 133 (1st Cir. 2003).] While substantial questions remain about
whether this resolution appropriately authorized the use of force in
[15]. See
Ibid.
[16]. President George W. Bush,
Remarks at the Signing of the Iraq Resolution (Oct.16, 2002), available
at
http://www.whitehouse.gov/news/releases/2002/10/20021016-1.html
[17]. S.C. Res 1441, U.N. SCOR,
4644th mtg., S/2002/1198 (2002), available at
http://www.un.int/usa/sres-iraq.htm. The resolution made clear that only the
United Nations Security Council had the right to take punitive action against
[18]. Mohamed ElBaradei, Report
to the U.N. Security Council (Jan. 27, 2003), available at
http://www.un.org/News/dh/iraq/elbaradei27jan03.htm. According to the IAEA, the tubes were
not suitable for manufacturing centrifuges as the Administration had
claimed.
Ibid.
[19]. President George W. Bush,
State of the Union Address (Jan. 28, 2003), available at
www.whitehouse.gov/news/releases/2003/01/20030128-19.html.
[20]. Secretary Colin Powell,
Remarks to the U.N. Security Council (Feb. 5, 2003), available at
http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html. During his speech, he assured the world
that, “every statement I make today is backed up by sources, solid sources. These are not assertions. What we're giving you are facts and
conclusions based on solid intelligence.”
Ibid.
[21]. Meet the Press:
“Interview with Vice President Cheney” (NBC television broadcast, Mar. 16,
2003), available at
http://msnbc.msn.com/id/3080244/s.
[22]. The letter stated that
“Reliance by the
[23]. President George W. Bush,
Remarks from the U.S.S. Abraham Lincoln (May 1, 2003), available at
http://www.whitehouse.gov/news/releases/2003/05/iraq/20030501-15.html.
[24]. Massive unchecked
looting, including that of radioactive material, may have taken place days after
the fall of
[25]. Joseph C. Wilson IV,
Op-Ed, “What I Didn’t Find in
[26]. White House Press
Secretary Ari Fleischer, Press Gaggle (July 7, 2003), available at
http://www.whitehouse.gov/news/releases/2003/07/20030707-5.html#9.
[27]. Robert D. Novak,
“
[28]. “Powell: Some Iraq
Testimony Not Solid”, CNN.com, Apr. 3, 2004, available at
http://www.cnn.com/2004/US/04/03/powell.iraq.
[29]. James Risen,
“Ex-Inspector Says CIA Missed Disarming in Iraqi Arms Program”, The New York
Times, Jan. 26, 2004, at A1.
Kay’s conclusion was confirmed by the CIA chief weapons inspector,
Charles A. Duelfer, in his report released later in the year. Special Advisor to the DCI on
[30]. The Comm’n on the
Intelligence of the U.S. Regarding Weapons of Mass Destruction, Report to the
President of the
[31]. The Situation Room:
Debate Continues Over
[32]. Minority Staff of H.
Comm. on Gov’t Reform, 108th Cong., Report on
[33]. Ibid. at
i.
[34]. S. Rep. No.
108-301(2004).
[35]. Ibid. (additional
views of Vice Chairman John D. Rockefeller, IV, Sen. Carl Levin * Sen. Dick
Durbin).
[36]. The Administration also
attempted to minimize its mistakes or misdeeds. At a black-tie dinner for journalists on
March 24, 2004, President Bush narrated a slide show attempting to make light of
the failure to find WMD. One
picture showed the President looking under a piece of furniture in the Oval
Office, at which he remarked: “Those weapons of mass destruction have got to be
here somewhere.” “Bush’s Iraq WMD
Joke Backfires”, BBC News, Mar. 26, 2004, available at
http://news.bbc.co.uk/2/hi/americas/3570845.stm.
[37]. 60 Minutes II (CBS
television broadcast, Apr. 28, 2004).
[38]. See, e.g., Human
Rights Watch, “Getting Away with Torture: Command Responsibility for the
U.S. Abuse of Detainees” (Apr. 2005).
[39]. Farah Stockman, “Bush
Calls Vote ‘Resounding Success’ for Democracy”, The
[40]. Michael Smith, “Blair
Planned Iraq War From Start”, The Sunday Times, May 1, 2005, available
at
http://www.timesonline.co.uk/article/0,,2087-1592724,00.html.
[41]. Letter from 87 Members of
Congress to the President (May 5, 2005), available at
http://www.house.gov/judiciary_democrats/letters/bushsecretmemoltr5505.pdf.
[42].
Ibid.
[43]. Congressman Charles
Rangel summed up the hearing best: “Quite frankly, evidence that appears to be
building up points to whether or not the president has deliberately misled
Congress to make the most important decision a president has to make, going to
war.” Democratic Hearing on the
[44]. Letter to President
George W. Bush (June 16, 2005), available at
http://www.johnconyers.com/index.asp?Type=SUPERFORMS&SEC={8771D3DA-2F3D-49F7-895C-DF473CAEFA2C}. On July 23, 2005, nationwide hearings
were held concerning the Downing Street Minutes in
[45]. Letter from
[46]. Letter from James B.
Comey, Acting Attorney General, to Patrick J. Fitzgerald, U.S. Attorney (Dec.
30, 2003), available at
http://www.usdoj.gov/usao/iln/osc/documents/ag_letter_december_30_2003.pdf.
[47]. Matthew Cooper, “What I
Told the Grand Jury”, Time, July 25, 2005, available at
http://www.time.com/time/archive/preview/0,10987,1083899,00.html. On July 14, 2005, Congressman Conyers
wrote a letter to President Bush, signed by 91 members of Congress, urging the
President to demand either that Karl Rove explain his role in the leak or that
Karl Rove resign. Letter from 91
Members of Congress to President George W. Bush (July 14, 2005), available
at
http://www.house.gov/judiciary_democrats/letters/presroveltr71405.pdf.
[48]. President George W. Bush,
Remarks in the East Room (July 18, 2005), available at
http://www.whitehouse.gov/news/releases/2005/07/20050718-1.html.
[49]. National Security
Implications of Disclosing the Identity of a Covert Intelligence Officer:
Hearing Before the S. Democratic Policy Comm. & Democratic Members of the H.
Gov’t Reform Comm., 109th Cong., 1st Sess. (2005).
[50]. Erik Eckholm, “Army Contract Official
Critical of Halliburton Pact is Demoted”, The New York Times, Aug. 29,
2005, at A9.
[51]. David Johnston &
Richard W. Stevenson, “Cheney Aide Charged with Lying in Leak Case”, The New
York Times, Oct. 29, 2005, at A1.
See also
[52]. Special Counsel Patrick
J. Fitzgerald, Press Conference (Oct. 28, 2005).
[53]. Carl Hulse & David D.
Kirkpatrick, “Partisan Quarrel Causes Senators to Bar the Doors in an Unusual
Closed Session”, The New York Times, Nov. 2, 2005, at
A22.
[54]. Press Release, Senator
Carl Levin, Levin Says Newly Declassified Information Indicates Bush
Administration's Use of Pre-War Intelligence Was Misleading (Nov. 6, 2005),
available at
http://levin.senate.gov/newsroom/release.cfm?id=248339.
[55]. Bob Drogin & John
Goetz, “How
[56]. Richard Morin & Dan
Balz, “Survey Finds Most Support Staying in
[57]. Warren P. Strobel,
“
[58]. Linda Bilmes, Op-Ed, “The
Trillion-Dollar War”, The New York Times, Aug. 20, 2005, at A13 (“Factors
keeping costs high include inducements for recruits and for military personnel
serving second and third deployments, . . . as well as more than $2 billion a
year in additional foreign aid to Jordan, Pakistan, Turkey and others to reward
their cooperation in Iraq and Afghanistan. . . . The biggest long-term costs are
disability and health payments for returning troops, which will be incurred even
if hostilities were to stop tomorrow. . . . These payments are likely to run at
$7 billion a year for the next 45 years.”).
[59]. Meet the Press:
“Interview with the Vice President” (NBC television broadcast), Sept. 8,
2002).
[60]. Secretary Donald
Rumsfeld, Press Briefing (Sept. 16, 2002).
[61].
[62]. President George W. Bush,
Remarks After Meeting with Members of Congress (Oct. 1, 2002), available
at http://www.whitehouse.gov/news/releases/2002/10/20021001-1.html (emphasis
added).
[63]. President George W. Bush,
Remarks at Presidential Hall (Nov. 7, 2002), available at
http://www.whitehouse.gov/news/releases/2002/11/20021107-2.html (emphasis
added).
[64]. President George W. Bush,
President Bush Signs Child Internet Safety Legislation (Dec. 4, 2002),
available at
http://www.whitehouse.gov/news/releases/2002/12/20021204-1.html.
[65]. President George W. Bush,
Remarks on
[66]. President George W. Bush,
Remarks at Prairie Chapel Ranch, (Jan.2, 2003), available at
http://www.whitehouse.gov/news/releases/2003/01/20030102.html.
[67]. President George W. Bush,
Address to the Nation (Mar. 6, 2003), available at
http://www.whitehouse.gov/news/releases/2003/03/20030306-8.html.
[68]President George W. Bush,
President’s Radio Address (Mar. 8, 2003), available at
http://www.whitehouse.gov/news/releases/2003/03/20030308-1.html.
[69]. President George W. Bush,
Address to the Nation (Mar. 17, 2003), available at
http://www.whitehouse.gov/news/releases/2003/03/20030317-7.html
[70].
60 Minutes (CBS television broadcast, Jan. 11, 2004) (emphasis added),
available at
http://www.cbsnews.com/stories/2004/01/09/60minutes/main592330.shtml.
[71]. Russ Baker, “Bush Wanted
to Invade
[73]. See Bryan Bender,
“Indictments Put Focus on Neoconservatives”, The
[74]. The President, Remarks by
the President at John Cornyn for Senate Reception (Sept. 26, 2002) (emphasis
added), available at
http://www.whitehouse.gov/news/releases/2002/09/20020926-17.html. Former President H.W. Bush visited
[75]. See Bryan Burrough,
Evgenia Peretz, David Rose, & David Wise, “The Path to War”, Vanity
Fair, May 1, 2004, at 228.
[76]. Letter from Elliott
Abrams, Richard L. Armitage, William J. Bennett, Jeffrey Bergner, John Bolton,
Paula Dobriansky, Francis Fukuyama, Robert Kagan, Zalmay Khalilzad, William
Kristol, Richard Perle, Peter W. Rodman, Donald Rumsfeld, William Schneider,
Jr., Vin Weber, Paul Wolfowitz, R. James Woolsey & Robert B. Zoellick to
President William J. Clinton (Jan. 26, 1998), available at
http://www.newamericancentury.org/iraqclintonletter.htm
[77]. Ibid.
[78]. Zalmay Khalilzad &
Paul Wolfowitz, “Overthrow Him”, Weekly Standard, Dec. 1, 1997, at 14; see also
Glenn Kessler, “U.S. Decision on Iraq Has Puzzling Past: Opponents of War Wonder
When, How Policy was Set”, January 12, 2003, The Washington Post, at
A1.
[79]. Project for a New
American Century, Rebuilding America’s Defenses: Strategy, Forces and Resources
for a New Century 14 (Sept. 2000) (emphasis added), available at
http://newamericancentury.org/RebuildingAmericasDefenses.pdf.
[80]. 60 Minutes (CBS
television broadcast, Jan. 11, 2004) (emphasis added), available at
http://www.cbsnews.com/stories/2004/01/09/60minutes/main592330.shtml
[81]. Ibid. (statement
of Ron Suskind).
[82]. BBC News: “the
Secret
[83]. The Pentagon, Foreign
Suitors for Iraqi Oil Field Contracts (Mar. 5, 2001), available at
http://www.judicialwatch.org/IraqOilFrgnSuitors.pdf.
[84].
Ibid.
[85]. George Packer, The
Assassins’ Gate 45 (Farrar, Straus, and Giroux, 2005).
[86]. “Plans for Iraq Attack
Began on 9/11”, CBSnews.com, Sept. 4, 2002, available at
http://www.cbsnews.com/stories/2002/09/04/september11/main520830.shtml.
[87].
Ibid.
[88]. John B. Judis &
Spencer Ackerman, “The First Casualty”, The New Republic, June 30, 2003,
at 14.
[89]. Richard A. Clarke,
“Against All Enemies: Inside America’s War on Terror” at 32 (Free Press, 2004)
(emphasis added) (Clarke recounting conversation with the
President).
[90]. Meet the Press:
“Interview with Senator Trent Lott” (NBC television broadcast, Aug. 21, 2005)
(emphasis added), available at http://www.msnbc.msn.com/id/8926876/.
[91]. Meet the Press:
“Interview with General Wesley Clark” (NBC television broadcast, June 15, 2003)
(emphasis added), available at http://securingamerica.com/ccn/node/1147.
[92]. Glenn Kessler, “U.S.
Decision on Iraq Has Puzzling Past: Opponents of War Wonder When, How Policy was
Set”, Jan. 12, 2003, The
[93]. Ibid. The board’s meetings amount to a form of
“organized brainstorming” with the Defense Secretary, his key lieutenants, and a
group of well-informed outsiders, all of whom are cleared to have access to
classified intelligence.
[94]. Bryan Burrough, Evgenia
Peretz, David Rose & David Wise, “The Path to War”, Vanity Fair, May
2004, at 236 (emphasis added).
[95]. National Commission on
Terrorist Attacks upon the
[96]. David Rose, “Bush and
Blair Made Secret Pact for
[97]. 60 Minutes:
“Interview with Bob Woodward” (CBS television broadcast, Apr. 18, 2004)
(emphasis added).
[98]. President George W. Bush,
State of the Union Address (Jan. 29, 2002), available at
http://www.whitehouse.gov/news/releases/2002/01/20020129-11.html
[99].
James Mann,
“Rise of the Vulcans: The History of Bush’s War Cabinet 318” (Penguin Group,
2004) (internal citations omitted).
[100]. Senator Bob Graham,
Remarks to the Council on Foreign Relations (Mar. 26, 2004) (emphasis added),
available at
http://www.cfr.org/publication/6905/senator_bob_graham_remarks_to_the_council_on_foreign_relations.html?breadcrumb=default.
[101].
Bob Woodward,
Plan of Attack 136-37 (Simon & Schuster, 2004) (emphasis added).
[102]. 60 Minutes:
“Interview with Bob Woodward” (CBS television broadcast, Apr. 18, 2004),
available at
http://www.cbsnews.com/stories/2004/04/15/60minutes/main612067.shtml..
[103]. 2002 Supplemental
Appropriations Act for Further Recovery From and Response to Terrorist Attacks
on the
[104].
[105]. Warren P. Strobel &
John Walcott, “Bush Has Decided to Overthrow Hussein”, Knight Ridder,
Feb.13, 2002, available at
http://www.realcities.com/mld/krwashington/news/special_packages/11809605.htm?template=contentModules/printstory.jsp.
[106]. Seymour Hersh, “Annals of
National Security: Stovepipe”, The New Yorker, Oct. 27, 2003, at 77
(emphasis added)
[107]. George Packer, The
Assassins’ Gate 45 (Farrar, Straus, and Giroux, 2005) (emphasis
added).
[108]. Michael Elliott &
James Carney, “First
[109]. Daniel Eisenberg, “We’re
Taking Him Out”, Time, May 13, 2002, at 36 (emphasis
added).
[110]. 60 Minutes:
Interview with Bob Woodward (CBS television broadcast, Apr. 18, 2004),
available at
http://www.cbsnews.com/stories/2004/04/15/60minutes/main612067.shtml.
[111]. Glenn Kessler,
“
[112]. Rowan
[113]. Adel Safty, “Forcible
Occupation of Iraq Is a Man-made Disaster,” Gulf News, January 3, 2005,
available at
http://search.gulfnews.com/articles/05/01/03/146204.html
[114]. Thom Shanker & David
E. Sanger, “
[115]. Michael Smith, “British Bombing Raids
Were Illegal, Says Foreign Office”, The Sunday Times, June 19, 2005, at
7.
[116]. Michael Smith, “RAF Bombing
Raids Tried to Goad Saddam into War”, The Sunday Times, May 29,
2005. The decision to increase
military activity in order to add pressure on
[117]. Democratic Hearing on the
Downing Street Minutes, Before the H. Comm. on the Judiciary, 109th Cong. (2005)
(testimony of Ray McGovern) (emphasis added)
[118]. Larisa Alexandrova &
John Byrne, “The Unofficial War:
[119]. Michael Smith, “RAF
Bombing Raids Tried to Goad Saddam Into War”, The Sunday Times, May 29,
2005, at 2.
[120]. Robert Winnett, “Key No
10 Aides were Split over War”, The Sunday Times, July 31, 2005,
available at
http://www.timesonline.co.uk/article/0,,2087-1715005_1,00.html.
[121].
Ibid.
[122].
Ibid.
[123]. Michael Smith, “RAF
Bombing Raids Tried to Goad Saddam Into War”, The Sunday Times, May 29,
2005, at 2.
[124]. Michael Smith, “General
Admits to Secret Air War”, The Sunday Times, June 26, 2005, at 2.
[125]. John Byrne, “U.S. Changed
Iraq Policy to Begin Airstrikes Months Before War”, Rawstory.com, available
at
http://rawstory.com/news/2005/U.S._changed_Iraq_policy_to_begin_airstrikes_months_before_0630.html
[126]. Memorandum from Matthew
Rycroft to David Manning, U.K. Foreign Policy Advisor (July 23, 2002), at 1
(emphasis added), available at
http://www.timesonline.co.uk/article/0,,2087-1593607,00.html [hereinafter
Downing Street Minutes].
[127]. Memorandum from the
Office of the Overseas and Defense Secretariat to Personal Secret UK Eyes Only
(Mar. 8, 2002), at 1, available at
http://downingstreetmemo.com/docs/iraqoptions.pdf [hereinafter Options
Paper].
[128]. Ibid. at 4
(emphasis added).
[129]. Ibid. at 10
(emphasis added).
[130]. Memorandum from the
Foreign and Commonwealth Office to the Prime Minister (Mar. 2002), available
at http://www.timesonline.co.uk/article/0,,2087-1654697,00.html [hereinafter
Legal Background Paper].
[131]. Ibid.
[132]. Memorandum from David
Manning, U.K. Foreign Policy Advisor, to the Prime Minister (Mar. 14, 2002),
available at http://downingstreetmemo.com/docs/manning.pdf [hereinafter
David Manning Memo].
[133]. Ibid.
[134]. Ibid. (emphasis
added).
[135]. Memorandum from
Christopher
[136].
Ibid.
[137].
Ibid.
[138]. David Rose, “Bush and Blair Made Secret Pact for Iraq
War”, The Observer, Apr. 4, 2004, at 1 (emphasis added).
[139]. Memorandum from Peter
Ricketts, Political Director of the U.K. Foreign and Commonwealth Office, to
Jack Straw, U.K. Foreign Secretary (Mar. 22, 2002), available at
http://downingstreetmemo.com/docs/ricketts.pdf [hereinafter Ricketts
Memo]
[140]. Ibid.
[141]. Ibid. (emphasis
added)..
[142]. Memorandum from Jack
Straw, U.K. Foreign Secretary, to the Prime Minister (Mar. 25, 2002),
available at http://downingstreetmemo.com/docs/straw.pdf [hereinafter
Straw Memo].
[143].
Ibid.
[144]. Ibid. (emphasis
added)
[145].
Ibid.
[146]. Ibid. (emphasis
added).
[147]. Ibid. at
3.
[148]. Memorandum from Cabinet
Office (July 21, 2002) (emphasis added), available at
http://www.timesonline.co.uk/article/0,,2089-1648758_1,00.html [hereinafter
Cabinet Office Paper].
[149]. Ibid. ¶ 12
(emphasis added).
[150].
Ibid.
[151].
[152]. Ibid. (emphasis
added).
[153].
[154]. Ibid. (emphasis
added).
[155]. Ibid.
[156].
Ibid.
[157]. Ibid. (emphasis
added).
[158]. Ibid.; see also
Cabinet Office Paper.
[159]. See Carmen Yarrusso,
“Downing Street Memos explained in Plain English”,
AfterDowningStreet.org, June 24, 2005 (explaining that Bush
Administration characterizations of the leaked Downing Street Minutes as
insignificant is incorrect since the documents clearly indicate the “beliefs of
people working closely with Bush’s top war planners, with access to privileged
US information”), available at
http://www.afterdowningstreet.org/?q=node/506
[160]. Democratic Hearing on the
Downing Street Minutes, Before the H. Comm. on the Judiciary, 109th Cong. (2005)
(testimony of Cindy Sheehan).
[161]. Warren P. Strobel &
John Walcott, “Downing Street Memo Indicates Bush Made Intelligence Fit Iraq
Policy”, Knight Ridder, May 5, 2005, available at
http://www.realcities.com/mld/krwashington/11574296.htm.
[162]. Michael Isikoff &
Mark Hosenball, “From Downing Street to Capitol Hill”, Newsweek.com, June
17, 2005, available at
http://www.msnbc.msn.com/id/8234762/site/newsweek/.
[163]. Bryan Burrough, Evgenia
Peretz, David Rose & David Wise, “The Path to War”, Vanity Fair, May
2004, at 284.
[164]. Ibid. (emphasis
added).
[165]. Robin Cook, Internet
Diary: The Road to War, December 19, 2001, Why-War.com, Oct. 5, 2003,
available at http://www.why-war.com/news/2003/10/05/theroadt.html
[166]. Elisabeth Bumiller, “Bush
Aides Set Strategy to Sell Policy on
[167]. Mark Danner, “The Secret
Way to War”, The New York Review of Books, June 9, 2005, available
at http://www.nybooks.com/articles/18034
[168].
Ibid.
[169]. Meet the Press:
“Interview with Vice President Dick Cheney” (NBC television broadcast, Mar. 16,
2003), replayed on Meet the Press: Interview with Vice President Dick Cheney
(NBC television broadcast, Sept. 14, 2003), available at
http://msnbc.msn.com/id/3080244/s.
[170]. In his autobiography,
retired U.S. General Tommy Franks, who led the 2003 invasion of
[171]. A total of 21,736 sorties
were flown over southern
[172].
[173]. Richard Norton-Taylor
& Patrick Wintour, “Papers Reveal Commitment to War”, The Guardian,
May 2, 2005, available at
http://politics.guardian.co.uk/election/story/0,15803,1474755,00.html
[174]. Michael Smith, “Failure
is not an option, but it doesn't mean they will avoid it”, Sunday
Telegraph, Sept. 18, 2004, at 4, available at
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/09/18/nwar118.xml.
[175]. “War Protesters Keep
Pressure On”, CBSNews.com, Mar. 30, 2003, available at
http://www.cbsnews.com/stories/2003/03/31/iraq/main547001.shtml
[176]. Andrew Brookes,
International Institute for Strategic Studies, Combat Air Force Assets in Place
Around Iraq As at 21 March 2003, available at
http://www.iiss.org/iraqCrisis-more.php?itemID=6.
[177].
[178]. The White House,
Operation Iraqi Freedom: Statement of Support from Coalition (Mar. 26, 2003),
available at
http://www.whitehouse.gov/news/releases/2003/03/20030326-7.html
[179]. Memorandum from Cabinet
Office ¶ 20 (July 21, 2002), available at
http://www.timesonline.co.uk/article/0,,2089-1648758_1,00.html
[180]. See i.e Prime Minister
Blair, Speech to Parliament (Mar. 18, 2003), available at
http://politics.guardian.co.uk/iraq/story/0,12956,916790,00.html
[181]. Elisabeth Bumiller, “Bush
Aides Set Strategy to Sell Policy on
[182].
As Robert Parry explained, “From the start of its drive to invade Iraq, the
administration treated the war like a public relations game, with the goal of
manufacturing consent or at least silencing any meaningful opposition.” Robert Parry, “Why U.S. Intelligence
Failed”, Consortiumnews.com, Oct. 22, 2003, available at
http://www.consortiumnews.com/2003/102203.html.
[183]. The Cabinet Office Paper
includes several additional expectations concerning the Blair government’s
design to sell the public on the need for preemptive military action. Among other things, the paper explains
that a condition for military action includes “the preparation of domestic
opinion” and goes on to emphasize that “[t]ime will be required to prepare
public opinion in the U.K. that it is necessary to take military action against
Saddam Hussein . . . [a]n information campaign will be needed . . . [t]his will
need to give full coverage to the threat posed by Saddam Hussein, including his
WMD.” Ricketts Memo, at 1. The
Ricketts Memo goes on to emphasize the difficult public relations problem
expected by the
Other portions of the
Downing Street Minutes further anticipate the British government’s need to
emphasize public relations and marketing with regard to the justification for
the upcoming war:
·
British Ambassador
Christopher Meyer wrote that when he met with Paul Wolfowitz, “[i]f the
·
The British Office of the
Overseas and Defense Secretariat in the Iraq Options Paper stated that attacking
·
U.K.
Foreign Secretary Jack Straw acknowledged that while regime change was the goal,
it needed to be cloaked by reference to weapons of mass destruction: “regime
change per se is no justification for military action; it could form part of the
method of any strategy, but not a goal.
Of course, we may want credibly to assert that regime change is an
essential part of the strategy by which we have to achieve our ends – that of
the elimination of
[184]. Bret Baer, “Rumsfeld:
Iraq Can’t Wait”, FoxNews.com, Aug. 20, 2002 (interview with Secretary
Rumsfeld) (emphasis added)..
[185]. Barton Gellman &
Walter Pincus, “Depiction of Threat Outgrew Supporting Evidence”, The
[186]. Ibid. (emphasis
added)..
[187]. Elisabeth Bumiller,
“Traces of Terror: The Strategy”, The New York Times, Sept. 7, 2002, at
A1.
[188]. ABC News Transcript,
April 25, 2003, Page 301.
[189]. Sam Tanenhaus, “Bush’s
Brain Trust”, Vanity Fair, July 2003, at 114 (emphasis
added)
[190]. Elisabeth Bumiller,
“Traces of Terror: The Strategy”, The New York Times, Sept. 7, 2002, at
A1 (emphasis added).
[191]. Walter Russell Mead, “The
Revolutionary”, Esquire, Nov. 1, 2004.
[192]. Elizabeth De La Vega,
“The White house Criminal Conspiracy”, The Nation, November 14,
2005.
[193]. David Barstow, William J.
Broad, & Jeff Gerth, “How White House Embraced Suspect
[194].
Ibid.
[195]. Barton Gellman, “A Leak,
Then Then a Cascade; Did a Bush loyalist overstep the bounds in protecting the
administration's case for war in
[196]. Barton Gellman and Walter
Pincus, “Depiction of Threat Outgrew Supporting Evidence”, The
[197]. Barton Gellman and Walter
Pincus, “Depiction of Threat Outgrew Supporting Evidence”, The
[198]. The Chris Matthews
Show (MSNBC television broadcast, Sept. 11, 2005) (emphasis added).
[199]. Memorandum from Matthew
Rycroft to David Manning, U.K. Foreign Policy Advisor (July 23, 2002), at 1,
available at
http://www.timesonline.co.uk/article/0,,2087-1593607,00.html.
[200]. President's Remarks at
the United Nations General Assembly (Sept. 12, 2002), available at
http://www.whitehouse.gov/news/releases/2002/09/20020912-1.html
[201]. Jonathan S. Landay, “CIA
leak illustrates selective use of intelligence on
Knight
Ridder,
Oct. 26, 2005.
[202]. 60 Minutes:
Interview with Bob Woodward (CBS television broadcast, Apr. 18, 2004) (emphasis
added).
[203]. Bob Woodward, Plan of
Attack 286 (Simon & Schuster, 2004) (emphasis
added).
[204]. Glen Kessler,
“
[205].
Ibid.
[206]. President George W. Bush,
State of the
[207]. Barton Gellman and Walter
Pincus, “Depiction of Threat Outgrew Supporting Evidence”, The
[208]. Department of Defense
Budget Priorities FY 2004: hearing Before the House Comm. on Budget, 108th Cong.
9 (2003) (statement of the Hon. Paul D. Wolfowitz, Deputy Secretary of
Defense).
[209]. Secretary of Defense
Donald Rumsfeld, Media Availability with Afghan President Karzai (Feb. 27, 2003)
available at
http://www.defenselink.mil/transcripts/2003/t02272003_t0227ap.html
[210]. Meet the Press:
Interview with Vice President Dick Cheney (NBC television broadcast, Mar. 16,
2003), available at
http://msnbc.msn.com/id/3080244/s.
[211]. John Diamond, “CIA Review
Faults Prewar Plans”, USA Today, Oct. 12, 2005, at A1 (emphasis
added).
[212]. Bryan Burrough, Evgenia
Peretz, David Rose & David Wise, “The Path to War”, Vanity Fair, May
20, 2004, at 228 (emphasis added).
[213]. Ibid.
[214]. Bradley Graham, “Prewar
Memo Warned of Gaps in
[215].
Ibid.
[216].
Ibid.
[217]. Memorandum from Jack
Straw, U.K. Foreign Secretary, to the Prime Minister (Mar. 25, 2002),
available at http://downingstreetmemo.com/docs/straw.pdf
[218]. Ibid. at 4
(emphasis added)..
[219]. Memorandum Memorandum
from David Manning, U.K. Foreign Policy Advisor, to the Prime Minister (Mar. 14,
2002), available at http://downingstreetmemo.com/docs/manning.pdf
[220].
Ibid.
[221]. Ibid. (emphasis
added).
[222]. Memorandum from Cabinet
Office (July 21, 2002) (emphasis added), available at http://www.timesonline.co.uk/article/0,,2089-1648758_1,00.html
[223]. David Corn, The Lies of
George W. Bush 240 note (Random House, 2004).
[224]. Hans Blix, Disarming Iraq
86 (Pantheon, 2004) (quoting the Vice President).
[225]. Bob Woodward, Plan of
Attack 162 (Simon & Schuster, 2004).
[226]. Ibid. (emphasis
added).
[227]. Mark Danner, “The Secret
Way to War”, 52 The New York Review of Books 10, June 9, 2005 (emphasis
added).
[228]. Bob Woodward, Plan of
Attack 177-78 (Simon & Schuster, 2004)
[229].
Ibid.
[230]. Ibid. Bush told Woodward, “And of course these
Brits don't know what cojones are.”
Ibid.
[231].
Ibid.
[232]. President George W. Bush,
Remarks at the United Nations General Assembly (Sept. 12, 2002), available
at
http://www.whitehouse.gov/news/releases/2002/09/20020912-1.html.
[233]. Bryan Burrough, Evgenia
Peretz, David Rose, & David Wise, “The Path to War”, Vanity Fair, May
1, 2004, at 285 (emphasis added).
[234]. Testimony Regarding
[235]. President George W. Bush,
Remarks from the Oval Office (Sept. 19, 2002), available at
http://www.whitehouse.gov/news/releases/2002/09/20020919-1.html
[236]. Ewen MacAskill &
Edward Pilkington, “Threat of War”, The Guardian, Nov. 13, 2002, at 13
(quoting Richard Perle).
[237]. S.C. Res 1441, U.N. SCOR,
4644th mtg., S/2002/1198 (2002), available at
http://www.un.int/usa/sres-iraq.htm.
[238]. Bryan Burrough, Evgenia
Peretz, David Rose, & David Wise, “The Path to War”, Vanity Fair, May
1, 2004, at 286.
[239]. Mark Danner, “The
[240]. Paul Gilfeather, “Bush
Aide: Inspections or Not, We’ll Attack
[241]. “Bush: ‘A Disappointing
Day’ for Peacez’, CNN.com, Dec. 20, 2002, available at
http://archives.cnn.com/2002/US/12/20/sproject.irq.un/.
[242].
Ibid.
[243]. Hans Hans Blix, Disarming
Iraq 86 (Pantheon, 2004) (emphasis added).
[244].
Ibid.
[245].
Ibid.
[246]. Julia Preston, “Threats
And Responses: The Inspections; Weapon Inspector Asks
[247]. “Inspectors Call U.S.
Tips ‘Garbage,’” CBSNews.com, Feb. 20, 2003, available at
http://www.cbsnews.com/stories/2003/01/18/iraq/main537096.shtml.
[248]. John B. Judis &
Spencer Ackerman, “The First Casualty”, The New Republic, June 30, 2003
at 24 (emphasis added).
[249]. Press Release, United
Nations Security Council, Security Council Briefed by Chief UN Weapons Experts
on First 60 Days of Inspections in Iraq (January 27, 2003), available at
http://www.un.org/News/Press/docs/2003/sc7644.doc.htm.
[250].
Ibid.
[251]. Bob Woodward, Plan of
Attack 253 (Simon & Schuster, 2004).
[252].
Ibid.
[253]. Bryan Burrough, Evgenia
Peretz, David Rose, & David Wise, The Path to War, Vanity Fair, May
1, 2004, at 290.
[254]. The Resolution stated
that
[255]. The following interchange
occurred with the press:
Q: As you said, the
Security Council faces a vote next week on a resolution implicitly authorizing
an attack on
THE PRESIDENT: Well, first,
I don't think -- it basically says that he's in defiance of 1441. That's what
the resolution says. And it's hard to believe anybody is saying he isn't in
defiance of 1441, because 1441 said he must disarm. And, yes, we'll call for a
vote.
Q No matter what?
THE PRESIDENT: No matter
what the whip count is, we're calling for the vote. We want to see people stand
up and say what their opinion is about Saddam Hussein and the utility of the
United Nations Security Council. And so, you bet.
President George W. Bush,
Press Conference (Mar. 6, 2003), available at http://www.whitehouse.gov/news/releases/2003/03/20030306-8.html.
[256]. Martin Bright, Ed
Vulliamy & Peter Beaumont, “Revealed: US Dirty Tricks To Win Vote on
[257].
Ibid.
[258].
Ibid.
[259]. A similar scramble took
place in the
[260]. As described by Professor
Philippe Sands, “[b]y early March the only argument left, the only plausible
justification, would be to run the argument that the Security Council had
somehow already authorized the use of force.” Philippe Sands, Lawless World 178
(Penguin Group, 2005)
[261]. President George W. Bush,
Address to the Nation (Mar. 17, 2003) available at
http://www.whitehouse.gov/news/releases/2003/03/20030317-7.html. Of course, as
noted above, it is clear that the opposite is true. For example, as the Cabinet Office Paper
observes, “US views of international law vary from that of the
[262]. Memorandum from Lord
[263]. Memorandum from the
Foreign and Commonwealth Office to the Prime Minister (Mar. 2002), available
at http://www.timesonline.co.uk/article/0,,2087-1654697,00.html.
[264]. Oliver Burkeman &
Julian Borger, “War Critics Astonished as US Hawk Admits Invasion was Illegal”,
Guardian, Nov. 20, 2003, at 4
[265]. The March 8, 2002 Iraq
Options Paper clearly articulates this: “[O]f itself, REGIME CHANGE has no basis
in international law” and “[a] legal justification for invasion would be
needed. Subject to Law Officers
advice, none currently exists.” See
Options Paper at 8. In addition, at
the Blair war cabinet meeting of July 23, 2002, the then-U.K. Attorney General,
Lord Goldsmith, directly informed Blair of the illegality of an invasion: “The
Attorney-General said that the desire for regime change was not a legal base for
military action. There were three possible legal bases: self-defense,
humanitarian intervention, or UNSCR authorization. The first and second could
not be the base in this case.” See
[266]. The Attorney-General’s
Written Answer of 17 March 2003 Setting Out His View of the Legal Basis for the
Use of Force Against Iraq (Mar. 17, 2003), available at
http://www.fco.gov.uk/Files/kfile/AG%20Written%20Answer%20of%2017%20March%202003,0.pdf.
[267]. On March 18, 2003, the
Leader of the House of Commons and former Foreign Secretary Robin Cook resigned
from the British Cabinet. Mr. Cook
made clear his views on the adequacy of the intelligence and rejected the claim
that Saddam had WMD. Matthew Tempest, Cook Doubts Saddam Threat, The Guardian
Unlimited, June 17, 2003, available at
http://politics.guardian.co.uk/iraq/story/0,12956,979260,00.html.
[268]. Democratic Hearing on the
Downing Street Minutes, Before the H. Comm. on the Judiciary, 109th Cong. (2005)
(testimony of Ray McGovern).
[269]. Letter from Elizabeth
Wilmshurst, Deputy Legal Adviser to the Foreign Office, to Michael Wood, Legal
Adviser, (Mar. 20, 2003), available at
http://news.bbc.co.uk/2/hi/uk_news/politics/4377605.stm.
[270].
Ibid.
[271]. Ibid. (emphasis
added). This last sentence was
redacted from the resignation letter made public in March of 2005. The unredacted version, containing this
sentence, surfaced shortly thereafter, causing further difficulties for the
British Attorney General and Blair government, who would now be accused of
engaging in censorship
[272]. James Bamford, A Pretext
for War 333 (Doubleday, 2004).
[273]. Col. Lawrence Wilkerson,
Chief of Staff to Former Secretary of State Colin Powell, Remarks before the New
America Foundation (Oct. 19, 2005), available at
http://www.newamerica.net/Download_Docs/pdfs/Doc_File_2644_1.pdf
[274]. Ron Suskind, “Without A
Doubt”, N.Y. Times Magazine, Oct. 17, 2004, at 44.
[275]. Glenn Kessler, “CIA Leak
Linked to Dispute over Iraq Policy”, The Washington Post, Oct. 25, 2005,
at A3 (emphasis added).
[276]. M. Hersh, “Annals of National Security:
The Stovepipe”, The New Yorker, Oct. 27, 2003, at 75. Mel Goodman, a 24-year veteran of the
CIA, who lectures at the State Department's Foreign Service Institute, has
recounted what his students from the intelligence agencies told him about the
political pressure they faced regarding
I get into the issue of
politicization . . . [t]hey [the students] don't say much during the question
period, but afterwards people come up to me, D.I.A. and C.I.A. analysts who have
had this pressure. I've gotten
stories from D.I.A. people being called into a supervisor's office and told they
might lose their job if they didn't revise a paper. “This is not what the
administration is looking for.
You've got to find W.M.D.'s, which are out there.”
Bryan Burrough, Evgenia
Peretz, David Rose & David Wise, “The Path to War”, Vanity Fair, May
2004, at 242 (emphasis added).
[277]. Walter Pincus & Dana
Priest, “Some Iraq Analysts Felt Pressure From Cheney Visits”, The Washington
Post, June 5, 2003, at A1 (emphasis added).
[278]. Warren P. Strobel,
Jonathan S. Landay & John Walcott, “Some in Bush Administration Have
Misgivings about
[279]. Maureen Dowd, “Fashioning
Deadly Fiascos”, The New York Times, Nov. 5, 2005, at
A17 (quoting Col. Lawrence Wilkerson).
[280]. The Diplomat’s Goodbye,
The
[281]. Spencer Ackerman &
John B. Judis, “The First Casualty”, The New Republic, June 30, 2003, at
14.
[282].
[283]. CNN Presents:
“Dead Wrong” (CNN television broadcast, Aug. 21, 2005) (quoting unidentified
male).
[284]. Spencer Ackerman &
John B. Judis, “The First Casualty”, The New Republic, June 30, 2003, at
14.
[285].
[286]. Ibid. at 75 (quoting Kenneth
Pollack). Pollack later wrote
himself that:
Throughout the spring and
fall of 2002 and well into 2003 I received numerous complaints from friends and
colleagues in the intelligence community, and from people in the policy
community, about [how the Bush administration handled the intelligence]. . .
. Many Administration officials
reacted strongly, negatively, and aggressively when presented with information
or analysis that contradicted what they already believed about
est credence to accounts
that presented the most lurid picture of Iraqi activities. In many cases
intelligence analysts were distrustful of those sources, or knew unequivocally
that they were wrong. But when they said so, they were not heeded; instead, they
were beset with further questions about their own sources.
Kenneth M. Pollack, Spies, Lies, and Weapons: What Went Wrong, The
Atlantic Monthly, Jan. 1, 2004 (emphasis added).
[287]. Julian Borger, “Threat of
War: US Intelligence Questions Bush Claims on
[288]. CNN Presents: Dead Wrong (CNN television
broadcast, Aug. 21, 2005) (statement of Michael
Scheuer).
[289]. Frontline: Truth, War & Consequences
(PBS television broadcast, Aug. 12, 2003).
[290]. Ibid.
[291]. Bryan Burrough, Evgenia Peretz, David
Rose & David Wise, “The Path to War”, Vanity Fair, May 2004, at 204 (quoting
Greg Thielmann) (emphasis added).
[292]. Jonathan S. Landay, “CIA Leak
Illustrates Selective Use of Intelligence on
[293]. Seymour M. Hersh, “Annals of National
Security: The Stovepipe”, The New
Yorker, Oct. 27, 2003, at 81 (emphasis added).
[294]. Walter Pincus & Dana Priest, “Some
Iraq Analysts Felt Pressure from Cheney Visits”, The Washington Post, June 5, 2003, at A1
(emphasis added).
[295]. Michael Smith, “Exclusive: Downing
Street Reporter Dissects Pre-War Iraq Intelligence”, The Raw Story, Aug. 24, 2005, available
at
http://rawstory.com/news/2005/Downing_Street_reporter_dissects_Iraq_intelligence_in_leadup_0824.html.
[296]. Democratic Hearing on the Downing Street
Minutes, Before the H. Comm. on the Judiciary, 109th Cong. (2005) (statement of
Ray McGovern).
[297]. CNN Presents: Dead Wrong
(CNN television broadcast, Aug. 21, 2005).
[298]. See Bruce B. Auster, Mark
Mazzetti & Edward Pound, “Truth and Consequences”,
[299]. Bryan Burrough, Evgenia Peretz, David
Rose, & David Wise, “The Path to War”, Vanity Fair, May 1, 2004, at 230
(emphasis added).
[300]. Hearing on Findings of the 9-11
Commission Before the Senate Armed Services Committee, 108th Cong. (2004)
(testimony of John E. McLaughlin, Acting Director of Central
Intelligence).
[301]. John B. Judis & Spencer Ackerman,
“The First Casualty” The New
Republic, June 30, 2003, at 23-4.
[302]. Colin Powell on
[303]. Ibid.
[304]. 60 Minutes: Interview with Richard
Clarke (CBS television broadcast, Mar. 21, 2004) (emphasis added), available at
http://www.cbsnews.com/stories/2004/03/19/60minutes/main607356.shtml.
[305]. President George W. Bush, Remarks in
Meeting with President Alvaro Uribe of
[306]. Hearing on U.S. Policy on
[307]. Eric Schmitt, “Rumsfeld Says
[308]. John John B. Judis and Spencer Ackerman,
“The First Casualty”, The New
Republic, June 30, 2003, at 24.
[309]. “Rice:
[310]. Meet the Press: Interview with Vice
President Dick Cheney (NBC television broadcast, Dec. 9,
2001).
[311]. Fox News: Interview with Vice President
Dick Cheney (Fox News television broadcast, June 28, 2004), available at
http://www.foxnews.com/story/0,2933,123794,00.html).
[312]. President George W. Bush, Remarks on
[313]. Secretary of State Colin Powell, Remarks
to the U.N. Security Council (Feb. 5, 2003), available at
http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
[314]. Ibid.
[315]. Michael Isikoff & Daniel Klaidman,
“Al Qaeda’s Man in
[316]. National Commission on Terrorist Attacks
Upon the
[317]. National Commission on Terrorist Attacks
Upon the
[318]. S. Rep. No. 108-301, at 347
(2004).
[319]. Testimony on Efforts to Determine the
Status of Iraqi Weapons of Mass Destruction and Related Programs: Hearing Before
the S. Comm. on Armed Services, 108th Cong., 2d Sess. (2004) (statement of David
Kay).
[320]. National Commission on Terrorist Attacks
Upon the
[321]. Douglas Jehl, “Report Warned Bush Team
About Intelligence Suspicions”, The New
York Times, Nov. 6, 2005 at 14.
[322]. 60 Minutes: Interview with Richard
Clarke (CBS television broadcast, Mar. 21, 2004), available at
http://www.cbsnews.com/stories/2004/03/19/60minutes/main607356.shtml (describing
the reaction of the Bush White House to his report finding no connection between
[323]. Murray Waas, “Key Bush Intelligence
Briefing Kept from Hill Panel”, The
National Journal, Nov. 22, 2005, available at
http://nationaljournal.com/about/njweekly/stories/2005/1122nj1.htm (emphasis
added).
[324]. Ibid.
[325]. Ibid.
[326]. S. Rep. No. 108-301, at
306 (2004)(emphasis added).
[327]. National Intelligence
[328]. S. Rep. No. 108-301, at
332 (2004)(emphasis added).
[329]. Ibid.
[330]. CNN Presents: Dead Wrong (CNN television
broadcast, Aug. 21, 2005) (emphasis added).
[331]. Oliver Burkeman & Julian Borger,
“War Critics Astonished as US Hawk Admits Invasion was Illegal”, Guardian, Nov. 20, 2003, at 4 (emphasis
added).
In her book, Blowing My Cover, Lindsay Moran detailed
the following discussions she had with C.I.A. analysts regarding CIA knowledge
of possible relationships between
“[A] CIA analyst, whose
opinion I'd solicited about the connection between Al-Qa'ida and
[332]. “Bush Overstated Iraq Links to al-Qaeda,
Former Intelligence Officials Say”, USA
Today, July 13, 2003, available at
http://www.usatoday.com/news/washington/2003-07-13-bush-alqaeda_x.htm.
[333]. Bryan Burrough, Evgenia Peretz, David
Rose & David Wise, “The Path to War”, Vanity Fair, May 2004, at 228 (emphasis
added).
[334]. S. Rep. No. 108-301, at 449
(2004).
[335]. The unnamed individual testified:
“Generally it was understood how receptive [the Office of the Secretary of
Defense] civilians were to our assessments and what kind of assessments they
would not be receptive to . . .” S.
Rep. No. 108-301, at 280 (2004). A
senior official at the Defense Department stated that on September 11, Paul
Wolfowitz told senior officials at the Pentagon that he believed
Don't go with the
Bob Woodward, Bush at War, at 87-88 (Simon &
Schuster, 2002)(emphasis added).
[336]. Spencer Ackerman & John B. Judis,
“The First Casualty”, The New
Republic, June 30, 2003, at 16 (emphasis added).
[337]. James Risen, “Threats and Responses:
C.I.A.; Captives Deny Qaeda Worked With
[338]. ABC News Transcript, April 25, 2003,
Page 304 (emphasis added).
[339]. Julian Borger, “Threat of war: US
intelligence questions Bush claims on
[340]. Current and Future Worldwide Threats to
U.S. National Security: Hearing Before the Senate Committee on Armed Services,
108th Cong. (2004) (statement of George Tenet, Director, Central Intelligence
Agency).
[341]. Ibid.
[342]. The CTEG was created under Paul
Wolfowitz and Under Secretary of Defense for Policy, Douglas Feith, and
ultimately answerable to Donald Rumsfeld.
CNN’s documentary Dead Wrong noted, “at the Pentagon, Secretary of
Defense Donald Rumsfeld set up a special office to provide him with alternative
intelligence analysis, focusing on a possible link between Saddam and al Qaeda.”
CNN Presents: Dead Wrong (CNN television broadcast, Aug. 21, 2005). In this regard, Former CIA and State
Department Official Larry Johnson responded that “they even briefed their
findings to the [intelligence] community and the community would come back and
say, wait a second, you don't know what you're talking about. That's garbage. That's misleading, that misrepresents.”
. Ibid.. Referring to the work of the special
unit, Lt. Colonel Karen Kwiatkowski, a former Air Force officer who served in
the Pentagon’s Near East and South Asia unit, has stated, “it wasn’t
intelligence‚ -- it was propaganda . . . [t]hey’d take a little bit of
intelligence, cherry-pick it, make it sound much more exciting, usually by
taking it out of context, often by juxtaposition of two pieces of information
that don't belong together.” Robert
Dreyfuss & Jason Vest, The Lie Factory, Mother Jones, January/February 2004,
available at
http://www.motherjones.com/news/feature/2004/01/12_405.html.
[343]. On November 14, 2005, the Pentagon’s
Inspector General announced an investigation into whether Mr. Feith and others
associated with his group engaged in “unauthorized, unlawful, or inappropriate
intelligence activities.” Murray
Waas, “Key Bush Intelligence Kept From Hill Panel”, The National Journal, Nov. 22, 2005,
available at
http://nationaljournal.com/about/njweekly/stories/2005/1122nj1.htm. Mr. Feith also put together a series of
classified findings indicating that
[344]. Bryan Burrough, Evgenia Peretz, David
Rose & David Wise, “The Path to War”, Vanity Fair, May 2004, at
230.
[345]. Ibid. at 242. Former DIA Chief of Mideast Operations,
Pat Lang, described how the CTEG bypassed standard intelligence channels to
provide unfiltered information to the White House: “That unit had meetings with senior
White House officials without the CIA or the Senate being aware of them. That is not legal. There has to be oversight.” Richard Sale, “DIA Targets DOD Unit”, The
[346]. Bryan Burrough, Evgenia Peretz, David
Rose & David Wise, “The Path to War”, Vanity Fair, May 2004, at
230.
[347]. Memorandum from Peter Ricketts,
Political Director of the U.K. Foreign and Commonwealth Office, to Jack Straw,
U.K. Foreign Secretary (Mar. 22, 2002), available at http://downingstreetmemo.com/docs/ricketts.pdf
at 1-2. To British officials, it
was equally clear that Bush Administration charges were to the contrary, there
was no credible link between
[348]. Memorandum from the Office of the
Overseas and Defense Secretariat to Personal Secret UK Eyes Only (Mar. 8, 2002),
at 1, available at http://downingstreetmemo.com/docs/iraqoptions.pdf at
8.
[349]. Michael Isikoff, “Phantom Link to
[350]. James Risen, “Iraqi Agent Denies He Met
9/11 Hijacker in
[351]. David Ignatius, “The Real
Crime, White House vs. CIA Was the Wrong
[352]. Douglas Jehl, “Report Warned Bush Team
About Intelligence Suspicions”, The New
York Times, Nov. 6, 2005, at 14 (emphasis
added).
[353]. Ibid.
[354]. Ibid. (emphasis
added).
[355]. Ibid.
[356]. Walter Pincus, “Newly Released Data
Undercut Prewar Claims, Source Tying Baghdad, Al Qaeda Doubted”, The Washington Post, Nov. 6, 2005 at
A22.
[357]. Ibid.
[358] Jane Mayer, “Annals of
Justice, Outsourcing Torture”, The New
Yorker, Feb. 14, 2005 at 116.
[359]. Ibid.
[360]. Douglas Jehl, “Qaeda-Iraq Link U.S.
Cited is Tied to Coercion Claim”, The New
York Times, Dec. 9, 2005, at 1.
[361]. John B. Judis & Spencer Ackerman,
“The First Casualty”, The New
Republic, June 30, 2003, at 17.
[362]. Meet the Press: Interview with Vice
President Dick Cheney (NBC television broadcast, March 16,
2003).
[363]. Vice President Dick Cheney, Remarks by
the Vice President to the Veterans of Foreign Wars 103rd National Convention
(Aug. 26, 2002), available at
http://www.whitehouse.gov/news/releases/2002/08/20020826.html. Similarly Colin Powell testified before
the House International Relations Committee that, “[w]ith respect to the nuclear
program, there is no doubt that the Iraqis are pursuing it.” The President’s International Affairs
Budget Request for FY2003: Hearing Before the H. Comm. on International
Relations, 107th. Cong., 2d Sess. (2002) (Testimony of Colin
Powell).
[364]. Vice President Dick Cheney, Remarks by
the Vice President to the Veterans of Foreign Wars 103rd National Convention
(Aug. 26, 2002), available at
http://www.whitehouse.gov/news/releases/2002/08/20020826.html.
[365]. President George W. Bush, Remarks on
[366]. President George W. Bush, Remarks by the
President and Prime Minister Tony Blair (Sept. 7, 2002), available
athttp://www.whitehouse.gov/news/releases/2002/09/20020907-2.html
[367]. Secretary of State Colin Powell, Remarks
to United Nations Security Council, (February 5, 2003) available at
http://www.state.gov/secretary/rm/2003/17300.htm
[368]. Secretary Rice stated on September 8,
2002: “There will always be some
uncertainty about how quickly [Saddam] can acquire nuclear weapons. But we don't want the smoking gun to be
a mushroom cloud.” CNN’s Late
Editon with Wolf Blitzer (CNN television broadcast, Sept. 8, 2002).
[369]. Secretary Rumsfeld stated on September
8, 2002: “Imagine a September
eleventh with weapons of mass destruction. It's not three thousand--it's tens of
thousands of innocent men, women, and children.” CBS, Face the Nation (CBS
television broadcast, Sept. 8, 2002).
[370]. Vice President Dick Cheney stated in
August 2002 that Mr. Hussein could acquire nuclear weapons “fairly soon” and
that Saddam, “armed with an arsenal of these weapons of terror,” could “directly
threaten America's friends throughout the region and subject the United States
or any other nation to nuclear blackmail.”
Vice President Dick Cheney, Remarks by the Vice President to the Veterans
of Foreign Wars 103rd National Convention (Aug. 26, 2002) available at
http://www.whitehouse.gov/news/releases/2002/08/20020826.html.
[371]. Statement by David Kay on the Interim
Progress Report on the Activities of the Iraq Survey Group (ISG) before the
House Permanent Select Committee on Intelligence, the House Committee on
Appropriations, Subcommittee on Defense, and the Senate Select Committee on
Intelligence (Oct. 2, 2003).
[372]. Testimony on Efforts to Determine the
Status of Iraqi Weapons of Mass Destruction and Related Programs: Hearing Before
the S. Comm. on Armed Services, 108th Cong., 2d Sess. (2004) (Testimony of David
Kay).
[373]. Ibid.
[374]. S. Rep. No. 108-301, at 129
(2004).
[375]. Letter from Dr. Mohamed ElBaradei,
Director General of the International Atomic Energy Agency, to Kofi A. Annan,
U.N. Secretary General (Apr. 7, 1999) (emphasis added), available at
http://www.iaea.org/OurWork/SV/Invo/reports/s_1999_393.pdf.
[376]. IAEA Director General Dr. Mohamed
ElBaradei, The Status of Nuclear Inspections in
[377]. Micheal Isikoff & Mark Hosenball,
“From Downing Street to Capital Hill”, Newsweek, June 17, 2005 (emphasis
added), available at http://www.msnbc.msn.com/id/8234762/site/newsweek/.
[378] Central Intelligence
Agency, Unclassified Report to Congress on the Acquisition of Technology
Relating to Weapons of Mass Destruction and Advanced Conventional Munitions, 1
January Through 30 June 2001 (2001), available at
http://www.nti.org/e_research/official_docs/cia/11-63001CIA.pdf. The review said only, “We believe that
[379] S. Rep. No. 108-301, at 85
(emphasis added).
[380]. National Intelligence
[381]. Ibid. (emphasis
added).
[382]. Elizabeth De La Vega, “The White House
Criminal Conspiracy”, The Nation,
Nov. 14, 2005, at 14.
[383]. John B. Judis &
Spencer Ackerman, “The First Casualty”, The New Republic, June 30, 2003, at 17
(emphasis added)
[384]. Barton Gellman and Walter Pincus,
“Depiction of Threat Outgrew Supporting Evidence”, The
[385] Ibid.
[386]. The meeting was attended by Prof. M
Zifferero (IAEA), N. Smidovich, and a person from King of Jordan court who
served as an interpreter. Meeting
of the Executive Chairman of the Special Commission and General Hussein Kamal
(Aug. 22, 1995), available at
http://www.globalsecurity.org/wmd/library/news/iraq/un/unscom-iaea_kamal-brief.html.
[387]. International Atomic Energy Agency, The
Implementation of United Nations Security Council Resolutions 687, 707 and 715
(1991) Relating to
[388]. Barton Gellman and Walter Pincus,
“Depiction of Threat Outgrew Supporting Evidence”, The Washington Post, Aug. 10, 2003, at
A1 (emphasis added).
[389]. David Barstow, William J. Broad, &
Jeff Gerth, “How the White House Embraced Disputed Iraqi Arms Intelligence”, The New York Times, Oct. 3, 2004, at A1
(emphasis added).
[390]. Barton Gellman and Walter Pincus,
“Depiction of Threat Outgrew Supporting Evidence”, The Washington Post, Aug. 10, 2003, at
A1 (emphasis added).
[391]. Ibid.
[392]. S. Rep. No. 108-301, at 85, 112.
[393]. Meet the Press: Interview with Vice
President Dick Cheney (NBC television broadcast, Sept. 8,
2002).
[394]. Ibid.
[395]. CNN Late Edition: Interview With
Condoleezza Rice (Sept. 8, 2002).
[396]. Secretary of State Colin Powell, Remarks
to the U.N. Security Council (Feb. 5, 2003), available at
http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
[397]. In his January 2003 State of the Union
Address, the President stated that Saddam Hussein was trying to buy tubes
“suitable for nuclear weapons production.”
See President George W. Bush, State of the
[398]. Dr. Mohamed ElBaradei, Remarks to the
U.N. Security Council on the Status of Nuclear Inspections in
[399]. Testimony on Efforts to Determine the
Status of Iraqi Weapons of Mass Destruction and Related Programs: Hearing Before
the S. Comm. on Armed Services, 108th Cong., 2d Sess. (2004) (Testimony of David
Kay).
[400]. S. Rep. No. 108-301, at 131
(2004).
[401]. The analyst was named “Joe.” As The New York Times reported,
“Suddenly, Joe's work was ending up in classified intelligence reports being
read in the White House. Indeed,
his analysis was the primary basis for one of the agency's first reports on the
tubes, which went to senior members of the Bush administration on April 10,
2001. The tubes, the report
asserted, ‘have little use other than for a uranium enrichment program.’ This alarming assessment was immediately
challenged by the Energy Department, which builds centrifuges and runs the
government's nuclear weapons complex.”
David Barstow, William J. Broad, & Jeff Gerth, “How the White House
Embraced Disputed Iraqi Arms Intelligence”, The New York Times, Oct. 3, 2004, at
A1.
[402]. S. Rep. No. 108-301, at 88
(2004).
[403]. David Barstow, William J. Broad, &
Jeff Gerth, “How the White House Embraced Disputed Iraqi Arms Intelligence”, The New York Times, Oct. 3, 2004, at
A1.
[404]. S. Rep. No. 108-301, at 89
(2004).
[405]. Ibid.
[406]. David Barstow, William J. Broad, &
Jeff Gerth, “How the White House Embraced Disputed Iraqi Arms Intelligence”, The New York Times, Oct. 3, 2004, at
A1. “Back in 1996, inspectors from
the International Atomic Energy Agency had even examined some of these tubes,
also made of 7075-T6 aluminum, at a military complex, the Nasser metal
fabrication plant in Baghdad, where the Iraqis acknowledged making rockets.
According to the international agency, the rocket tubes, some 66,000 of them,
were 900 millimeters in length, with a diameter of 81 millimeters and walls 3.3
millimeters thick.” Ibid.
[407]. S. Rep. No. 108-301, at 91-92
(2004).
[408]. At the Energy Department, those
examining the tubes included scientists who had spent decades designing and
working on centrifuges and intelligence officers steeped in the tricky business
of tracking the nuclear ambitions of
[409]. Ibid.
[410]. The Comm’n on the Intelligence of the
U.S. Regarding Weapons of Mass Destruction, Report to the President of the
[411]. S. Rep. No. 108-301, at
85.
[412]. Ibid. at 112.
[413]. National Intelligence
[414]. Ibid.
[415]. Ibid. Greg Thielman, the Director of
Strategic, Proliferation and Military affairs in the State Department’s Bureau
of Intelligence and Research stated the following on the CNN documentary Dead
Wrong:
DAVID ENSOR [CNN
Correspondent]: The three feet by three inch tubes are the only piece of
physical evidence that might suggest a bomb building
program.
THIELMANN: We were really
agnostic at the beginning of it but we listened to the experts and more and more
evidence came in that told us, no, this can't be true.
CNN Presents: Dead Wrong (CNN television
broadcast, Aug. 21, 2005) (emphasis added).
[416]. David Barstow, William J. Broad, &
Jeff Gerth, “How the White House Embraced Disputed Iraqi Arms Intelligence”, The New York Times, Oct. 3, 2004, at
A1.
[417]. S. Rep. No. 108-301, at
85.
[418]. David Barstow, William J. Broad, &
Jeff Gerth, “How the White House Embraced Suspect Arms Intelligence”, The New York Times, Oct. 3, 2004, at A1
(emphasis added).
[419]. Institute for Science and International
Security, Aluminum Tubing Is an Indicator of an Iraqi Gas Centrifuge Program:
But Is the Tubing Specifically for Centrifuges (2002), available at
http://www.isis-online.org/publications/iraq/aluminumtubes.html.
[420]. Spencer Ackerman & John B. Judis,
“The First Casualty”, The New
Republic, June 30, 2003, at 17.
[421]. David Barstow, William J. Broad, &
Jeff Gerth, “How the White House Embraced Suspect Arms Intelligence”, The New York Times, Oct. 3, 2004, at
A1.
[422]. Barton Gellman & Walter Pincus,
“Depiction of Threat Outgrew Supporting Evidence”, The
[423]. David Barstow, William J. Broad, &
Jeff Gerth, “How the White House Embraced Suspect Arms Intelligence”, The New York Times, Oct. 3, 2004, at
A1.
[424]. The Comm’n on the Intelligence of the
[425]. Ibid.
[426]. Ibid.
[427]. Ibid.
[428]. Ibid.
[429]. Ibid.
[430]. Spencer Ackerman & John B. Judis,
“The First Casualty”, The New
Republic, June 30, 2003, at 14 (emphasis added). In addition, a Senior Administration
official has acknowledged, “[Condoleezza Rice] was aware of the differences of
opinion.” David Barstow, William J.
Broad, & Jeff Gerth, “How the White House Embraced Suspect Arms
Intelligence”, The New York Times,
Oct. 3, 2004 , at A1.
[431]. Spencer Ackerman & John B. Judis,
“The First Casualty,” The New
Republic, June 30, 2003, at 17.
[432]. Oliver Burkeman & Julian Borger,
“War Critics Astonished as US Hawk Admits Invasion was Illegal”, The Guardian, Nov. 20, 2003, at
4.
[433]. David Barstow, William J. Broad, &
Jeff Gerth, “How the White House Embraced Suspect Arms Intelligence”, The New York Times, Oct. 3, 2004, at
A1.
[434]. Ibid.
[435]. Michael R. Gordon & Judith Miller,
“
[436]. Ibid.
[437]. Bryan Burrough, Evgenia Peretz, David
Rose & David Wise, “The Path to War”, Vanity Fair, May 2004, at
281.
[438]. CNN Presents: Dead Wrong (CNN television
broadcast, Aug. 21, 2005). Other
intelligence officials complained about the selective leaking of information
associated with the aluminum tubes debate.
David Albright of the Institute for Science and International Security
noted, "I became dismayed when a knowledgeable government scientist told me that
the administration could say anything it wanted about the tubes while government
scientists who disagreed were expected to remain quiet.” Spencer Ackerman & John B. Judis,
“The First Casualty”, The New
Republic, June 30, 2003 at 14.
[439]. Bill Gertz, “
[440]. CNN Late Edition: Interview with
Condoleezza Rice (CNN television broadcast, Sept. 8,
2002).
[441]. Meet the Press: Interview with Vice President Dick
Cheney (NBC television broadcast, Sept. 8, 2002).
[442]. Face the Nation: Interview with Donald
Rumsfeld (CBS television broadcast, Sept. 8, 2002).
[443]. The Miami Herald, “CIA leak illustrates
selective use of intelligence on
[444]. CNN Presents: Dead Wrong (CNN television
broadcast, Aug. 21, 2005).
[445]. Judith Miller and Michael R. Gordon,
“White House Lists
[446]. Ibid.
[447]. Ibid.
[448]. See David Barstow, William J. Broad,
& Jeff Gerth, “How the White House Embraced Suspect Arms Intelligence”, The New York Times, Oct. 3, 2004, at
A1.
[449]. Ray McGovern, Sham Dunk: Cooking
Intelligence for the President, available at http://www.afterdowningstreet.org/downloads/mcgovern.pdf
(emphasis added).
[450].
[451]. President George W. Bush,
State of the Union Address (Jan. 29, 2002), available at
http://www.whitehouse.gov/news/releases/2002/01/20020129-11.html.
[452]. H. Rep. No. 108-23
(2003).
[453]. Barton Gellman, “A Leak, Then a Deluge”,
The
[454]. Condoleezza Rice,Op-Ed, “Why We Know
[455]. Francis T. Mandanici, “Bush’s Uranium
Lies: The Case for a Special Prosecutor That Could Lead to Impeachment”, June
29, 2005, available at
http://democracyrising.us/content/view/269/164/.
[456]. Hearing on U.S. Policy on
[457]. President George W. Bush, President
Discusses
[458]. IAEA Director General Dr. Mohamed
ElBaradei, Statement to the United Nations Security Council (Mar. 7, 2003),
available at
http://www.iaea.org/NewsCenter/Statements/2003/ebsp2003n006.shtml.
[459]. Press Secretary Ari Fleischer, White
House Press Briefing (July 7, 2003), available at
http://www.whitehouse.gov/news/releases/2003/07/20030707-5.html.
[460]. Press Secretary Ari Fleischer, White
House Press Briefing (July 14, 2003), available at http://www.whitehouse.gov/news/releases/2003/07/20030707-5.html.
[461].
[462] Elaine Sciolino & Elisabetta
Povoledo, “
[463]. Ibid.
[464]. Seymour Hersh, “Annals of National
Security: Stovepipe”, The New Yorker,
Oct. 27, 2003, at 77 (emphasis added).
[465]. Ibid.
[466]. S. Rep. No. 108-301, at 57 (2004).
Elisabetta Burba, a reporter for Panorama, an Italian magazine, was offered
photocopies of 22 pages of additional documents describing purported sales of
uranium from
[467].
[468]. See Section
III.B.3.
[469]. For example, at this time, the United
Nations was not finding any evidence that
[470]. Walter Pincus, “PreWar Findings Worried
Analysts”, The
[471]. S. Rep. No. 108-301, at 56
(2004).
[472]. Ibid. at 44-45 (2004). On February 19, 2002, one in a series of
meetings was held at CIA headquarters pursuant to the Vice President’s
request. Attendees included WMD
intelligence analysts from the CIA and the State Department as well as former
Ambassador Joseph Wilson. Ibid. at
40. At the beginning of the meeting, Ambassador Wilson’s wife, Valerie Plame
Wilson, introduced her husband and left after three minutes. Ibid. The purpose was to evaluate whether
Ambassador Wilson should be sent to
[473].
[474]. Bryan Burrough, Evgenia Peretz, David
Rose, & David Wise, “The Path to War”, Vanity Fair, May 1, 2004, at
228.
[475].
[476]. “16 Words”, The New Republic, July 28, 2003, at
8.
[477]. A former senior CIA official
acknowledged there was no supporting evidence or a substantiation of the
claim: “I can fully believe that
SISMI would put out a piece of intelligence like that . . . but why anybody
would put credibility in it is beyond me.”
[478]. S. Rep. No. 108-301, at 56 (2004).
(emphasis added)
[479]. Ibid. at 56-7. (emphasis
added).
[480]. Joseph Cirincione, Niger Uranium: Still
a False Claim, Proliferation Brief, Vol. 7, No. 12, Carnegie Endowment
Publications (Aug. 28, 2004), available at
http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=1595&proj=znpp.
[481]. S. Rep. No. 108-301, at 51
(2004).
[482]. Ibid.
[483]. Democratic Hearing on the Downing Street
Minutes, Before the H. Comm. on the Judiciary, 109th Cong. (2005) (testimony of
Ambassador Joseph Wilson).
[484]. John J. Lumpkin, “CIA Had Doubted
Claims, Later Found to be Based on Forged Documents, that Iraq Tried to Import
Uranium”, AP, June 12, 2003; Kamal Ahmed, “Blair Ignored CIA Weapons
Warnings”, The Observer, July 13,
2003; Mitch Frank, “Tale of the
Cake”, Time, July 21, 2003, at
24. The Guardian in
[485]. Ibid.
[486]. S. Rep. No. 108-301, at 36
(2004).
[487]. See Ibid. at
239-56.
[488]. Ibid. at 53.
[489]. Ibid. at 62.
[490]. Tom Hamburger, Peter Wallsten and Bob
Drogin, “French Told CIA of Bogus Intelligence”,
[491]. Ibid.
[492]. Ibid.
[493]. Statement by George J. Tenet, Director
of Central Intelligence, July 11, 2003, available at
http://www.cia.gov/cia/public_affairs/press_release/2003/pr07112003.html. However, even the Administration’s own
explanation does not make complete sense.
One observer has explained the stated reason for the switch from “we” to
the British was the desire to identify in the speech a source for the uranium
claim that was not classified, and the British White Paper source was not
classified while the American source was classified. However, the original draft that the
White House sent apparently did not name any source for
[494]. Francis T. Mandanici, Bush’s Uranium
Lies: The Case for a Special Prosecutor That Could Lead to Impeachment, June 29,
2005, available at
http://democracyrising.us/content/view/269/164/.
[495]. Ibid.
[496]. Seymour M. Hersh, “Annals of National
Security: The Stovepipe”, The New
Yorker, Oct. 27, 2003 (emphasis added). The pressure to confirm the
Iraq-Niger uranium link was felt within the CIA as high up as Director George
Tenet. It appears that many within
the CIA believed Tenet only grudgingly supported including a reference to the
The CIA assessment
reflected both deep divisions within the agency and the position of its
director, George Tenet, which was far from secure. (The agency had been sharply
criticized, after all, for failing to provide any effective warning of the
September 11th attacks.) In the view of many CIA analysts and operatives, the
director was too eager to endear himself to the Administration hawks and improve
his standing with the President and the
Vice-President.
[497]. On that date the American government
gave the IAEA copies of documents that supposedly supported the claim that
[498]. S. Rep. No. 108-301, at 69
(2004).
[499]. Mohamed El Baradei, Remarks to the U.N.
Security Council on the Status of Nuclear Inspections in
[500]. John B. Judis & Spencer Ackerman,
“The First Casualty”, The New
Republic, June 30, 2003, at 14.
[501]. Ibid. John Pike, director of the
[502]. S. Rep. No. 108-301, at 426
(2004).
[503]. President George W. Bush, Remarks on
[504]. President George W. Bush, State of the
Union Address (Jan. 29, 2003), available at
http://www.whitehouse.gov/news/releases/2003/01/20030128-19.html
.
[505]. President George W. Bush, President Bush
Discusses
[506]. Minority Staff of H. Comm. on Gov’t
Reform, 108th Cong., Report on
[507]. James Bamford, “The Man Who Sold the
War”, Rolling Stone (Nov.17, 2005),
at 52-62.
[508]. Secretary of State Colin Powell, Address
to the United Nations Security Council (Feb. 5, 2003), available at
http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
[509]. Ibid.
[510]. President George W. Bush, State of the
Union Address (Jan. 29, 2002), available at
http://www.whitehouse.gov/news/releases/2002/01/20020129-11.html.
[511]. President George W. Bush, President’s
Radio Address (Feb. 8, 2003) available at
http://www.whitehouse.gov/news/releases/2003/02/20030208.html.
[512]. Secretary of State Colin Powell, Address
to the United Nations Security Council (Feb. 5, 2003), available at
http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
The pre-war unclassified
white paper prepared by the CIA and presented to the public as the case for war
stated that, according to “most analysts,”
[513]. Secretary of State Colin Powell, Address
to the United Nations Security Council (Feb. 5, 2003), available at
http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
[514]. President George W. Bush, Remarks on
[515]. Statement by David Kay on the Interim
Progress Report on the Activities of the Iraq Survey Group (ISG) before the
House Permanent Select Committee on Intelligence, the House Committee on
Appropriations, Subcommittee on Defense, and the Senate Select Committee on
Intelligence (Oct. 2, 2003).
[516]. James Bamford, “The Man Who Sold the
War”, Rolling Stone (Nov. 17, 2005),
at 52-62.
[517]. Dr. Hans Blix, Oral introduction of the
12th quarterly report of UNMOVIC to the U.N. Security Council (March 7, 2003),
available at
http://www.un.org/Depts/unmovic/SC7asdelivered.htm.
[518]. Bob Drogin and John Goetz, “How
[519]. Ibid.
[520]. Testimony on Efforts to Determine the
Status of Iraqi Weapons of Mass Destruction and Related Programs: Hearing Before
the S. Comm. on Armed Services, 108th Cong., 2d Sess. (2004) (Testimony of David
Kay).
[521]. Walter Pincus and Dana Milbank, “Bush
Clings to Dubious Allegations About
[522]. Minority Staff of H. Comm. on Gov’t
Reform, 108th Cong., Report on
[523] UNSCOM/IAEA, Note for the
File 13 (1995), available at http://www.un.org/Depts/unmovic/new/documents/hk.pdf. In an interview with CNN, Kamel was
asked "Can you state, here and now, does
[524]. Central Intelligence Agency, Comments On
Iraqi Weapons Of Mass Destruction (1995).
[525]. John Berry, “The Defector’s Secrets”, Newsweek, March 3, 2003, at 6. While the CIA did not comment on the
Newsweek story initially, it eventually did so in a follow-up story by
Reuters. Then-CIA spokesman Bill
Harlow denied the Newsweek story was accurate, directly contradicting all
publicly available information:
The CIA on Monday denied a
Newsweek magazine report that Saddam Hussein's son-in-law told the
“It is incorrect, bogus,
wrong, untrue,” CIA spokesman Bill Harlow said of the Newsweek report's
allegations that Hussein Kamel told the CIA that Iraqi President Saddam Hussein
had destroyed all of his weapons of mass destruction.
“
[526]. S. Rep. No. 108-301, at 424
(2004).
[527]. Secretary of State Colin Powell, Remarks
to the U.N. Security Council (Feb. 5, 2003), available at
http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
[528]. S. Rep. No. 108-301, at 424
(2004)(emphasis added) (“WEAK. Missiles with biological warheads reportedly
dispersed. This would be somewhat true in terms of short-range missiles with
conventional warheads, but is questionable in terms of longer-range missiles or
biological warheads.”).
[529]. Secretary of State Colin Powell, Remarks
to the U.N. Security Council (Feb. 5, 2003), available at
http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
[530] S. Rep. No. 108-301, at
424 (2004) (emphasis added).
[531]. Secretary of State Colin Powell, Remarks
to the U.N. Security Council (Feb. 5, 2003), available at
http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
[532]. S. Rep. No. 108-301, at 426
(2004).
[533]. James Bamford, “The Man Who Sold The
War”, Rolling Stone, Nov. 17, 2005,
at 52-62 (emphasis added).
[534]. Ibid.
[535]. Bob Drogin and John Goetz, “How U.S.
Fell Under the Spell of 'Curveball’”,
[536]. Ibid.
[537]. Ibid.
[538]. Ibid. (emphasis
added).
[539]. Ibid.
[540]. The Commission on the Intelligence
Capabilities of the
[541]. Ibid.
[542]. S. Rep. No. 108-301, at 248
(2004).
[543]. Ibid. at 249. (Emphasis
added.)
[544]. Ibid. at 247. (Emphasis
added.)
[545]. Ibid. at 248. (Emphasis
added.)
[546]. Ibid.
[547]. Ibid.
[548]. The Los Angeles Times recently reported
“of the three sources the CIA said had corroborated Curveball’s story, two had
ties to Chalabi. All three turned
out to be frauds, the most important, a former major in the Iraqi intelligence
services, was deemed a liar by the CIA and DIA. In May 2002, a fabricator warning was
posted in
[549]. Ibid. (emphasis
added.)
[550]. Spencer Ackerman & John B. Judis,
“The First Casualty”, The New
Republic, June 30, 2003, at 14.
[551]. Key Judgments from the National
Intelligence Estimate on
[552]. Ibid.
[553]. S. Rep. No. 108-301, at 139
(2004).
[554]. Ibid. at
230.
[555]. President George W. Bush, Remarks with
His Majesty King Abdullah II of the Hashemite Kingdom of Jordan (May 6, 2004)
available at
http://www.whitehouse.gov/news/releases/2004/05/20040506-9.html.
[556]. Seymour Hersh, “Torture at Abu Ghraib”,
The New Yorker, May 10, 2004, at 42
(emphasis added).
[557]. ARTICLE 15-6 INVESTIGATION OF THE 800th
MILITARY POLICE BRIGADE, available at
<http://news.findlaw.com/hdocs/docs/iraq/tagubarpt.html>. [hereinafter
“Taguba Report”] (conducted by Maj. Gen. Antonio M. Taguba, Deputy Commanding
General Support, Coalition Forces Land Component
Command).
[558]. Maj. Gen. Antonio M. Taguba, Deputy
Commanding General Support, Coalition Forces Land Component Command, Article
15-6 Investigation Of The 800th Military Police Brigade (2004), available at
http://www.npr.org/iraq/2004/prison_abuse_report.pdf [hereinafter “Taguba
Report”]. The report was not meant
for public release, but – even though portions of it were classified – it was
leaked and became widely available by May 2004 on the Internet. In addition, English translations of
statements by several of the abused detainees were also leaked to the public.
See, e.g., Translation of Sworn Statement Provided by ___, Detainee # ___ (Jan.
21, 2004), at
<http://www.washingtonpost.com/wp-srv/world/iraq/abughraib/swornstatements042104.html>
(the name of the detainee was withheld for privacy reasons) (describing, among
other things, an act of sodomy by military police using a nightstick). Ibid.
[559]. Taguba Report at 16 (emphasis
added).
[560]. Ibid.
[561]. Ibid.
[562]. Ibid. at 16-17.
[563]. Ibid. at 18-19.
[564]. Ibid. at 16.
[565]. Human Rights First, One Year After Abu
Ghraib: Torture Photos: US Government Response Grossly Inadequate, available at
http://www.humanrightsfirst.org/us_law/etn/statements/abu-yr-042605.htm#_ednref1.
[566]. Press Release, Human Rights First,
Twenty-Seven Detainee Homicides in
[567]. Ibid.
[568]. Ibid.
[569]. Ibid.
[570]. Ibid.
[571]. Report Of The International Committee Of
The Red Cross (ICRC) On The Treatment By The Coalition Forces Of Prisoners Of
War And Other Protected Persons By The Geneva Conventions In Iraq During Arrest,
Internment And Interrogation (Feb. 2004), available at
http://www.stopwar.org.uk/Resources/icrc.pdf [hereinafter ICRC Report].
[572]. Ibid.
[573]. ACLU, Government Documents on Torture,
available at
http://www.aclu.org/torturefoia/
(last modified Oct. 24, 2005)
[574]. Ibid.
http://www.aclu.org/torturefoia/released/032505/1181_1280.pdf.
[575]. Ibid.
[576]. Ibid.
[577]. Amnesty International, One Year After
Abu Ghraib, Torture Continues, Apr. 28, 2005, available at
http://web.amnesty.org/pages/irq-280405-feature-eng.
[578]. Amnesty International
[579]. Human Rights Watch, Leadership Failure:
Firsthand Accounts of Torture of Iraqi Detainees by the U.S. Army’s 82nd
Airborne Division, Vol. 17, No. 3(G) (Sept. 2005), available at
http://hrw.org/reports/2005/us0905/us0905.pdf.
[580]. Ibid.
[581]. Ibid. at 9.
[582]. Ibid. at
11-12.
[583]. Ibid. at 1.
[584]. Michael Hirsh, “The Truth About
Torture”, Newsweek, Nov. 7, 2005
(emphasis added).
[585]. Adam Zagorin, “Haunted by ‘The Iceman’”,
Time, Nov. 21, 2005, at
38.
[586]. Ibid.
[587]. Ibid.
[588]. Ibid.
[589]. Scott Scott Shane, “The Reach of War:
Detainees”, The New York Times, Oct.
29, 2004 at A10.
[590]. John Hendren, “The Conflict in
[591]. ICRC Report (documenting the practice of
keeping prisoners “completely naked in totally empty concrete cells and in total
darkness, allegedly for several days at a time”). Ibid. at 12.
[592]. Ibid. at 3; see also Scott Wilson,
“Ex-Detainee Tells of Anguishing Treatment at Iraq Prison”, The Washington Post,
May 5, 2004, at A18 (“the men were made to masturbate against a wall, crawl on
top of one another to form a pyramid and ride each other ‘as if we were riding a
donkey.’”); “Iraqi Inmate: ‘Treated like Dogs,’” BBC News Online, May 6, 2004, available
at http://news.bbc.co.uk/1/hi/world/americas/3689371.stm (“They cut our clothes
off with blades.”). Ibid
[593]. Taguba Report at
17.
[594]. Geneva Convention Relative to the
Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135,
[hereinafter “GC III”]; Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287,
[hereinafter “GC IV”], (entered into force Oct. 21, 1950). The
[595]. Dana Priest, “Memo Lets CIA Take
Detainees Out of Iraq; Practice Is Called Serious Breach of Geneva Conventions”,
The Washington Post, October 24, 2004
at A01 (citing an unnamed DOJ official who provided the classified memorandum
during an interview); see also Douglas Jehl, “U.S. Action Bars Rights of Some
Captured In Iraq”, The New York
Times, October 26, 2004 at A1.
[596]. Testimony on the Investigation of the
205th Military Intelligence Brigade at Abu Ghraib Prison, Iraq Before the S.
Armed Services Committee, 108th Cong. (2004) (statement of Army Commanding Gen.
Paul Kern).
[597]. Ibid.
[598]. Ibid.
[599]. Josh White, “Army Documents Shed Light
on CIA ‘Ghosting,’” The
[600]. Ibid.
[601]. Ibid.; see also R. Jeffrey Smith, “Abu
Ghraib Officer Gets Reprimand; Non-Court-Martial Punishment for Dereliction of
Duty Includes Fine”, The Washington
Post, May. 12, 2005, at A16.
[602]. Peter
[603]. Ibid.
[604]. Protocol III of the 1980 Convention on
Certain Conventional Weapons (CCW) available at
http://www.globalsecurity.org/military/library/policy/int/convention_conventional-wpns_prot-iii.htm. The operative provisions of the CCW are
contained in five protocols, four of which are currently in
force.
[605]. Ibid.
[606]. GC III, art. 130.
[607]. Testimony on treatment of Iraqi
Prisoners: Hearing before the H. Comm. on Armed Services, 108th Cong. 2d Sess.
(2004) (statement of Secretary of Defense Rumsfeld) (emphasis
added).
[608]. 18 U.S.C. §§ 3161-3167
(2002).
[609]. Amnesty International, “Abu Ghraib: One
Year Later, Who’s Accountable?” at
http://www.amnestyusa.org/stoptorture/agfactsheet.html.
[610]. Douglas Jehl and Tim Golden, “C.I.A. is
Likely to Avoid Charges in Most Prisoner Deaths”, The New York Times, Oct. 23, 2005, at
6.
[611]. Frank Rich, “One Step Closer to the Big
Enchilada”, The New York Times, Oct.
30, 2005, at 12.
[612]. Scott Horton, Betr: Strafanzeige gegen
den US-Verteidigungsminister Donald Rumsfeld, u.a. Expert Report of Scott
Horton, Jan. 28, 2005, at 2, available at
http://www.ccr-ny.org/v2/legal/september_11th/docs/ScottHortonGermany013105.pdf.
[613]. Ibid. at 3 (emphasis
added).
[614]. Josh White, “Rights Groups Reject Prison
Abuse Findings”, The
[615]. Letter from Anthony Romero, Executive
Director, ACLU, to Alberto Gonzales, Attorney General, United States Department
of Justice (Mar. 30, 2005), available at
http://www.aclu.org//safefree/general/17554leg20050330.html (emphasis
added).
[616]. Josh White, “Rights Groups Reject Prison
Abuse Findings”, The
[617]. Ibid.
[618]. Italy Orders Further CIA Warrants, BBC
News, available at http://news.bbc.co.uk/2/hi/europe/4297966.stm (reporting a
total of 22 warrants issued for those found involved in the abduction of Osama
Mustafa Hassan on Italian soil and his rendition to Egypt for
interrogation).
[619]. Memorandum from Jack Goldsmith,
Assistant Attorney General, Office of Legal Counsel to William H. Taft IV,
General Counsel, Department of State (March 19, 2004), available at
http://www.humanrightsfirst.com/us_law/etn/gonzales/memos_dir/memo_20040319_Golds_Gonz.pdf.
[621]. Memorandum from Jack Goldsmith,
Assistant Attorney General, Office of Legal Counsel to William H. Taft IV,
General Counsel, Department of State at 15. (March 19, 2004), available at
http://www.humanrightsfirst.com/us_law/etn/gonzales/memos_dir/memo_20040319_Golds_Gonz.pdf
(emphasis added
[622]. Ibid. at 15.
[623]. Ibid.
[624]. Dana Priest, “Memo Lets CIA Take
Detainees Out of Iraq”, The Washington
Post, Oct. 24, 2004 at A1 (emphasis added).
[625]. Human Rights First, Human Rights First
Opposes Alberto Gonzales To Be Attorney General, Jan 24. 2005, available at
http://www.humanrightsfirst.org/us_law/etn/gonzales/statements/hrf_opp_gonz_full_012405.asp.
[626]. Ibid.
[627]. Ibid.
[628]. Memorandum from Jay
Bybee, Assistant Attorney General to Alberto Gonzales, Counsel to the President
(Aug. 1, 2002), available at
http://news.findlaw.com/hdocs/docs/doj/bybee80102ltr.html. See also, Evan Thomas and Michael Hirsh,
“The Debate Over Torture”, Newsweek, Nov. 21, 2005 at
30.
[629]. Memorandum from Jay
Bybee, at 2 (emphasis added).
[630]. United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51
(1984).
[631]. Memorandum from Jay
Bybee, at 1.
[632]. 18 U.S.C. § 2340A
(2002).
[633]. David Luban, “The False
Premise of the Interrogation Debate”, The
[634]. S. Doc. No. 101-30, at
36(1990), Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Aug. 30, 1990.
[635]. See David Luban, “The
False Premise of the Interrogation Debate”, The
[636]. See Josh White, “Rights Groups Reject
Prison Abuse Findings”, The
[637]. Letter from Abraham D.
Sofaer, Hoover Institution on War Revolution and Peace to the Hon. Patrick J.
Leahy, Ranking Member, Senate Judiciary Committee (Jan. 21, 2005) (on file with
author) (emphasis added).
[638]. Memorandum from William
J. Haynes, II, General Counsel, to Donald Rumsfeld, Secretary of Defense (Nov.
27, 2002), available at
http://www.dod.gov/news/Jun2004/d20040622doc5.pdf
[639]. Memorandum from Michael
B. Dunlavey, Major General, to Commander
[640].
Ibid.
at 4 (emphasis added).
[641].
Ibid.
at 5 (emphasis added).
[642].
Ibid.
at 4 (emphasis added).
[643]. Ibid. at 5 (emphasis added). In fact, the ultimate list contained
many tactics barred by then-current army doctrine. As one former military prosecutor
himself said, many of these are “patent violations of the laws of war” and still
others could become so if applied in a strict enough manner. Jordan J. Paust, Executive Plans And
Authorization to Violation International Law Concerning Treatment and
Interrogation of Detainees, 43 Colum. J. of Transnat’l L.811, 845 (2005).
Human Rights Watch terms
these tactics as an “unprecedented expansion of army doctrine” and that,
“depending on how they are used, these methods also likely violate the Geneva
Conventions’ prohibition on torture or inhuman treatment of prisoners” and
“would thus constitute a war crime.” Human Rights Watch, Getting Away With
Torture: Command Responsibility for the
[644]. Taguba Report at 7. The report was not meant for public
release, but – even though portions of it were classified – it was leaked and
became widely available by May 2004 on the Internet. In addition, English translations of
statements by several of the abused detainees were also leaked to the public.
See, e.g., Translation of Sworn Statement Provided by ___, Detainee # ___ (Jan.
21, 2004), at
<http://www.washingtonpost.com/wp-srv/world/iraq/abughraib/swornstatements042104.html>
(the name of the detainee was withheld fro privacy reasons) (describing, among
other things, an act of sodomy by military police using a
nightstick).
[645]. John Barry, Michael Hirsh
and Michael Isikoff, “The Roots of Torture”, Newsweek, May 24, 2004, at 26. See, Secretary of Defense Donald H.
Rumsfeld, Memorandum for the Commander, US Southern Command, on
Counter-Resistance Techniques in the War on Terrorism, Tab A, at 1-2 (Apr. 16,
2003), at
<http://www.washingtonpost.com/wp-srv/nation/documents/041603rumsfeld.pdf>;
see also Dana Priest & Bradley Graham, “Guantanamo List Details Approved
Interrogation Methods”, The Washington
Post, June 10, 2004, at A13; Neil A. Lewis & Eric Schmitt, “Lawyers
Decided Bans on Torture Didn’t Bind Bush”, The New York Times, June 8, 2004, at A1.
On April 16, 2003,
Secretary Rumsfeld approved twenty-four interrogation techniques (out of
thirty-five examined by the working group) for use at Guantanamo Bay, including
“significantly increasing the fear level in a detainee” and “attacking or
insulting the ego of a detainee, not beyond the limits that would apply to a
POW.” Ibid.
[646]. Scott Wilson and Sewell Chan, “As
Insurgency Grew, So Did Prison Abuse; Needing Intelligence, U.S. Pressed
Detainees”, The Washington Post, May
10, 2004 at A1 (emphasis added).
[647]. Interview by Steve Inskeep with Larry
Wilkerson, Morning Edition, National Public Radio (Nov. 3,
2005).
[648]. Jordan J. Paust, Executive Plans And
Authorization to Violation International Law Concerning Treatment and
Interrogation of Detainees, 43 Colum. J. of Transnat’l L.811, 850 (2005)
(emphasis added).
[649]. Ibid. at 846-848. Others told directly
of the abuse include Secretary of State Colin Powell, and National Security
Advisor Condoleezza Rice.
[650]. Testimony on treatment of Iraqi
Prisoners: Hearing before the H. Comm. on Armed Services, 108th Cong. 2d Sess.
(2004) (Statement of Secretary of Defense Rumsfeld).
[651]. Human Rights Watch, Getting Away With
Torture: Command Responsibility for the U.S. Abuse of Detainees, 2005 at 44-45
(emphasis added); See Jordan J. Paust, Executive Plans And Authorization to
Violation International Law Concerning Treatment and Interrogation of Detainees,
43 Colum. J. of Transnat’l L.811, 846-48 (2005).
[652]. Mark Mathews, “Powell Says Bush Was
Informed of Red Cross Concerns”, Baltimore Sun, May 12, 2004 (emphasis
added).
[653]. Human Rights Watch, Getting Away With
Torture: Command Responsibility for the U.S. Abuse of Detainees, Apr. 2005 at
45-8, which accounts for numerous press accounts and complaints from various
human rights organizations, beginning immediately after the invasion of
[654]. Ibid. (emphasis
added).
[655]. Amnesty International, One year after
Abu Ghraib, torture continues (last modified Apr.28, 2005), available at
<http://web.amnesty.org/pages/irq-280405-feature-eng>.
[656]. Amnesty International, Abu Ghraib: One
Year Later, Who’s Accountable?, available at
www.amnestyusa.org/stopturture/agfactsheet.html.
[657]. Human Rights First, Torture: Quick
Facts, available at www.humanrightsfirst.org.
[658]. Josh White, “Rights Groups Reject Prison
Abuse Findings”, The
[659]. Amnesty International, One year after
Abu Ghraib, torture continues (last modified Apr.28, 2005), available at
http://web.amnesty.org/pages/irq-280405-feature-en.
[660]. Ibid.
[661]. Secretary of Defense Donald Rumsfeld,
Press Briefing (June 17, 2004) (emphasis added), available at
www.denfenselink.mil/transcripts.
[662]. Eric Schmitt and Thom Shanker, “The
Reach of War”, The New York Times,
June 17, 2004, at A1; Dana Priest and Bradley Graham, “U.S. Struggled Over How
Far to Push Tactics”, The Washignton
Post, June 24, 2004 at A1.
Rashul may have also been interrogated in
[663]. Dana Priest and Bradley Graham,
“
[664]. Secretary of Defense Donald Rumsfeld,
Press Briefing (June 17, 2004), available at www.denfenselink.mil/transcripts.
[665]. See Mark Fass, “Rumsfeld ID’s Secret
Detainee”, Daily News (
[666]. Jordan J. Paust, Executive Plans And
Authorization to Violation International Law Concerning Treatment and
Interrogation of Detainees, 43 Colum. J. of Transnat’l L.811, 850
(2005).
[667]. Eric Schmitt and Thom Shanker, “The
Reach of War”, The New York Times,
June 17, 2004, at A1; see also Mark Fass, “Rumsfeld ID’s Secret Detainee”, Daily News (
[668]. Ibid.; see also Dana Priest & Josh
White, “Detainee Reportedly Was Lost in System: CIA Criticized for Hiding Some
Prisoners”, The Washington Post, June
17, 2004, at A19.
[669]. Ibid.
[670]. John Hendren, “The Conflict in
[671]. Josh White, “Army, CIA Agreed on ‘Ghost’
Prisoners”, The
[672]. Testimony on the Independent Panel to
Review Department of Defense Detention Operations: Hearing before the S. Comm.
on Armed Services, 108th Cong. 2d Sess. (2004) (Statement of Army Gen. Paul
Kern).
[673].
Ibid.
(emphasis added).
[674]. Richard W. Stevenson
& Eric Lichtblau, “White House Looks to Manage Fallout Over C.I.A. Leak
Inquiry”, The New York Times, Oct. 2,
2003, at A24.
[675]. Articulating the
magnitude of the matter, Senate Minority Leader, Harry Reid, stated: “This case
is bigger than the leak of highly classified information. It is about how the Bush White House
manufactured and manipulated intelligence in order to bolster its case for the
war in
[676].
[677]. On May 6, 2003, The New
York Times published a Nicholas Kristof Op-Ed challenging the veracity of the
sixteen words in the President’s State of the
[678]. On June 12, 2003, The
Washington Post published an article by Walter Pincus not only challenging the
accuracy of the sixteen words, but also indicating that the CIA knew that the
[679]. An article in the July
28, 2003 New Republic questioned the sixteen words as well as the overall misuse
of pre-war intelligence. Editorial,
“16 Words”, New Republic, July 28,
2003, at 8; see also Libby Indictment 12 (“The article included a quotation
attributed to the unnamed ambassador alleging that administration officials
‘knew the
[680]. The run of damaging news
for the Bush Administration continued on July 6, 2003, when Ambassador Wilson
himself wrote his first-hand accounts as an Op-Ed in The New York Times. The Washington Post published an article
based on an interview with Mr. Wilson, and Mr. Wilson appeared on Meet the
Press. See Libby Indictment 15 (“In
his Op-Ed article and interviews in print and on television, Wilson asserted,
among other things, that he had taken a trip to Niger at the request of the CIA
in February 2002 to investigate allegations that Iraq had sought or obtained
uranium yellowcake from Niger, and that he doubted Iraq had obtained uranium
from Niger recently, for a number of reasons.
[681]. David Johnston &
Richard W. Stevenson, “Prosecutor Narrows Focus in Leak Case”, The New York Times, Nov. 4, 2005, at A25
(emphasis added).
[682]. Peter Wallsten & Tom
Hamburger, “Bush Critic Became Target of Libby, Former Aides Say”,
[683]. Ibid.
[684]. Libby Indictment
4-6:
On or about May 29, 2003,
in the White House, Libby asked an Under Secretary of State (‘Under Secretary’)
for information concerning the unnamed ambassador’s travel to
On or about June 9, 2003, a
number of classified documents from the CIA were faxed to the Office of the Vice
President to the personal attention of Libby and another person in the Office of
the Vice President. The faxed
documents, which were marked as classified, discussed, among other things,
On or about June 11 and 12,
2003, the Under Secretary of State orally advised Libby in the White House that,
in sum and substance, Wilson’s wife worked at the CIA and that State Department
personnel were saying that Wilson’s wife was involved in the planning of his
trip.
[685]. See Larisa Alexandrovna
& Jason Leopold, “Bolton’s Chief of Staff Gave Information on Outed Agent to
Libby, Lawyers Involved in Leak Case Say”, RawStory (Nov. 2, 2005), available at
http://rawstory.com/news/2005/Lawyers_involved_in_leak_case_say_1102.html
(“[Attorneys involved in the investigation] said that two former Libby aides,
John Hannah and David Wurmser, told the special prosecutor that Libby had
actually first contacted Bolton to dig up the
information.”).
[686]. Libby Indictment 7 (“On
or about June 11, 2003, Libby spoke with a senior officer of the CIA to ask
about the origin and circumstances of Wilson’s trip, and was advised by the CIA
officer that Wilson’s wife worked at the CIA and was believed to be responsible
for sending Wilson on the trip.”).
[687]. Ibid. 9 (“On or about June 12, 2003,
Libby was advised by the Vice President of the United States that Wilson’s wife
worked at the Central Intelligence Agency in the Counterproliferation
Division. Libby understood that the
Vice President had learned this information from the
CIA.”).
[688].
See See David
Corn, “After the Libby Indictment”, The
Nation, Nov. 2, 2005.
[689]. Libby Indictment 11 (“On
or about June 14, 2003, Libby met with a CIA briefer. During their conversation he expressed
displeasure that CIA officials were making comments to reporters critical of the
Vice President’s office, and discussed with the briefer, among other things,
‘Joe Wilson’ and his wife ‘Valerie Wilson,’ in the context of Wilson’s trip to
Niger.”).
[690]. Ibid. 18 (“Also on or about July 8,
2003, Libby met with the Counsel to the Vice President in an anteroom outside
the Vice President’s Office. During
their brief conversation, Libby asked the Counsel to the Vice President, in sum
and substance, what paperwork there would be at the CIA if an employee’s spouse
undertook an overseas trip.”).
[691]. Ibid. 19 (“Not earlier than June 2003,
but on or before July 8, 2003, the Assistant to the Vice President for Public
Affairs learned from another government official that Wilson’s wife worked at
the CIA, and advised Libby of this information.”).
[692]. The Libby Indictment
establishes that the Vice President advised Libby that Mrs. Wilson worked at the
CIA’s Counterproliferation Division on June 12, 2003, and that Mr. Cheney
obtained this information from the CIA.
Libby Indictment 9 (“On or about June 12, 2003, Libby was advised by the
Vice President of the United States that Wilson’s wife worked at the Central
Intelligence Agency in the Counterproliferation Division. Libby understood that the Vice President
had learned this information from the CIA.”). The CIA source is believed to have been
Director George Tenet. See Tom
Hamburger & Peter Wallsten, “Cheney Said to Have Told Aide of Plame”,
[693]. It has been widely
reported that on June 12, 2003, the State Department sent Powell a classified
memorandum written a month earlier identifying
[694]. It is now clear that Karl
Rove learned about
[695]. Libby Indictment 13
(“Shortly after publication of the article in The New Republic, Libby spoke by
telephone with his then Principal Deputy and discussed the
article.”).
[696]. Pete Yost, “Mysterious
'Official A' is Karl Rove”, Editor &
Publisher, Oct. 28, 2005, available at
http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1001392393
(“Friday’s indictment says ‘Official A’ is a ‘senior official in the White House
who advised Libby on July 10 or 11 of 2003' about a chat with Novak about his
upcoming column in which Plame would be identified as a CIA employee. Late Friday, three people close to the
investigation, each asking to remain unidentified because of grand jury secrecy,
identified Rove as Official A.”).
[697]. Libby Indictment 16 (“On
or about July 7, 2003, Libby had lunch with the then White House Press Secretary
and advised the Press Secretary that Wilson’s wife worked at the CIA and noted
that such information was not widely known.”).
[698]. Richard Keil &
William Roberts, “Prosecutors Probe Centers on Rove, Memo, Phone Calls”, Bloomberg News, July 18, 2005; Tom
Hamburger & Sonni Efron, “Memo May Hold Key to CIA Leak”, Los Angeles Times, July 17, 2005, at
A22.
[699]. Libby Indictment 22 (“On
or about July 12, 2003, Libby flew with the Vice President and others to and
from
[700]. On or about June 9, 2003,
a number of classified documents from the CIA were faxed to the Office of the
Vice President to the personal attention of Libby and another person in the
Office. The faxed documents were
marked as classified. Ibid. 5. Libby’s principal Deputy asked Libby
whether information about Mr. Wilson’s trip could be shared with the press to
rebut the allegations that the Vice President had sent Mr. Wilson to
[701]. Jim VandeHei & Carol
D. Leonning, “Woodward Was Told of Plame More Than Two Years Ago”, The
[702]. Libby Indictment
14
[703]. Ibid. 17.
[704]. Ibid. 21; see also Pete Yost,
“Mysterious 'Official A' is Karl Rove”, Editor & Publisher, Oct. 28, 2005,
available at
http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1001392393.
[705]. Michael Isikoff, “Matt
Cooper’s Source”, Newsweek, July 18,
2005, available at
http://msnbc.msn.com/id/8525978/site/newsweek/page/2/.
[706]. Libby Indictment
8.
[707]. Ibid. 24.
[708]. Walter Pincus, “Anonymous
Sources: Their Use in a Time of Prosecutorial Interest”, Neiman Reports 27
(Summer 2005).
[709]. Timothy M. Phelps &
Knut Royce, “Columnist Blows CIA Agent’s Cover”, Newsday, July 22, 2003 (emphasis
added).
[710]. Carol D. Leonnig,
“Columnist Says Bush Knows Who Leaked Name”, The
[711]. Walter Pincus, “Anonymous
Sources: Their Use in a Time of Prosecutorial Interest”, Neiman Reports 27
(Summer 2005). As Newsweek recently
explained: “Any reasonable reading of the events covered in the indictment would
consider Rove’s behavior “reckless [under the EO].” Evan Thomas & Michael Isikoff,
“Secrets and Leaks”, Newsweek, Oct.
13, 2003, at 26 (emphasis added). The fact that he discussed Plame’s identity
with reporters more than once constitutes a pattern. In the past, other officials have lost
their security clearances for similar disclosures – even without a pattern. Former CIA director John Deutch and
former National Security Adviser Sandy Berger (who got in trouble after leaving
office) both lost their clearances when they took classified information home
without proper authorization. More
recently, officials of the Coast Guard were sanctioned when they warned
relatives of a possible terrorist threat against the
[712]. Walter Pincus & Mike
Allen, “Probe Focuses on Month Before Leak to Reporters”, The Washington Post, Oct. 12, 2003, at
A1 (emphasis added).
[713]. Richard W. Stevenson
& Eric Lichtblau, “White House Looks to Manage Fallout Over CIA Leak
Inquiry”, The New York Times, at Oct.
2, 2003.
[714]. Evan Thomas and Michael
Isikoff, “Secrets and Leaks”, Newsweek, Oct. 13, 2003, at 26.
[715]. Mike Allen & Dana
Priest, “Bush Administration is Focus of Inquiry, CIA Agent’s Identity Was
Leaked to Media”, The Washington
Post, Sept. 28, 2003, at A1.
[716]. Ibid. The Administration’s bad animus toward
Ambassador Wilson appeared to infect its reliable ally, Robert Novak, who, when
asked by a bystander on the street, said “
[717]. National Security
Implications of Disclosing the Identity of an Intelligence Operative, Before the
Senate Democratic Policy Committee, 108th Cong. (2003) (statement of Vince
Cannistraro) (emphasis added).
[718]. National Security
Implications of Disclosing the Identity of an Intelligence Operative, Before the
Senate Democratic Policy Committee, 108th Cong. (2003) (statement of James
Marcinkowski).
[719]. Peter Wallsten & Tom
Hamburger, “Bush Critic Became Target of Libby, Former Aides Say”,
[720]. Murray Waas, “Cheney
Libby Blocked Papers To Senate Intelligence Panel”, National Journal, Oct. 27, 2005
(emphasis added), available at
http://nationaljournal.com/about/njweekly/stories/2005/1027nj1.htm.
[721]. In the Libby Indictment,
Special Counsel Fitzgerald notes that the outing of Ms. Plame could damage
national security in a number of respects: “Disclosure of the fact that . . .
individuals [such as Valerie Plame] were employed by the CIA had the potential
to damage the national security in ways that ranged from preventing the future
use of those individuals in a covert capacity, to compromising
intelligence-gathering methods and operations, and endangering the safety of CIA
employees and those who dealt with them.”
Libby Indictment 1d.
[722]. Special Counsel Patrick
Fitzgerald, Press Conference (Oct. 28, 2005) (emphasis
added).
[723]. Dafna Linzer, “CIA Checks
its Exposure in Plame Case”, The
[724]. On January 12, Victoria
Toensing and Bruce W. Sanford published an Op-Ed:
Since Plame had been living
in
Victoria Toensing &
Bruce W. Sanford, Op-Ed, “The Plame Game: Was this a Crime?”, The
On July 15, Republican
officials renewed their questions about
[725]. Face the Nation (CBS
television broadcast July 17, 2005).
In addition, former Republican presidential nominee and former Senate
Majority Leader Bob Dole wrote an Op-Ed in The New York
Times:
[O]ne of the requirements
[for a violation of the Intelligence Identities Protection Act] is that the
federal government must be taking “affirmative measures” to conceal the agent’s
intelligence relationship with the
Bob Dole, Op-Ed, “The
Underprivileged Press”, The New York
Times, Aug. 16, 2005, at A15.
[726]. Letter from Larry
Johnson, former Analyst, CIA, et al., to the Honorable J. Dennis Hastert,
Speaker, U.S. House, et al. (July 18, 2005).
[727].
Ibid.
[728]. National Security
Implications of Disclosing the Identity of an Intelligence Operative: Hearing
Before the
What we’ve seen,
particularly over the last two or three weeks, is one of the most malicious,
disingenuous smear campaigns, not only of Ambassador Wilson, who can publicly
defend himself, but of Valerie Plame his wife, who is still an officer at the
Central Intelligence Agency and is unable to speak out publicly, is unable to
defend herself and to correct the record.
Ibid. (statement of Larry
Johnson). Another former CIA
officer, Jim Marcinkowski, further stated;
By ridiculing, for example,
the degree of cover or the use of post office boxes, you lessen the confidence
that foreign nationals place in our covert capabilities, especially when they’re
involved in a community of intelligence collection, they know how these things
work. They know how they’re
used.
Ibid. (statement of Jim
Marcinkowski).
[729]. Letter from
[730]. Letter from William
Moschella, Assistant Attorney General, Department of Justice, to the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee (Jan. 20,
2004).
[731]. “Investigating Leaks”, The New York Times, Oct. 2, 2003, at A30
(editorial).
[732]. Richard Stevenson &
Eric Lichtblau, “Leaker May Remain Elusive, Bush Suggests”, The New York Times, Oct. 8, 2003, at
A28.
[733]. Richard Stevenson &
Eric Lichtblau, “Attorney General is Closely Linked to Inquiry Figures”, The New York Times, Oct. 2, 2003, at A1
(emphasis added).
[734].
[735]. Michael Duffy, “Leaking
With a Vengeance”, Time, Oct. 13,
2003, at 28 (released Oct. 5, 2003).
[736]. See U.S. Dep’t of
Justice, Deputy Attorney General Comey Holds Justice Department News Conference
(Dec. 30, 2003) (statement of the Deputy Attorney General). The manner in which the Department
appointed Fitrzgerald, however, led Fitzgerald to believe he was not granted the
authority to issue a report at the conclusion of his investigation. See Letter from the Honorable Patrick
Fitzgerald, Special Counsel, U.S. Dep’t of Justice, to the Honorable John
Conyers, Jr., et al. (Oct. 28, 2005).
If the Department instead had used its express regulatory authority to
appoint Mr. Fitzgerald as special prosecutor, such a report would have been
required. 28 C.F.R. § 600.8-.9.
[737]. As The Washington Post
reported, “[e]ven some White House aides privately wonder whether Libby was
seeking to protect Cheney from political embarrassment. One of them noted with resignation,
‘Obviously, the indictment speaks for itself.’” Carol D. Leonnig and Jim
VandeHei, “Libby May Have Tried to Mask Cheney’s Role”, The Washington Post, Nov. 13, 2005, at
A6.
[738]. See In re: Special
Counsel Investigation, 374 F. Supp. 2d 238 (D.D.C. 2005). In response to similar concerns
expressed by Mr. Fitzgerald about Time reporter Matthew Cooper, Karl Rove, the
Deputy White House Chief of Staff, granted a personal waiver to Mr. Cooper. In an effort to spur Mr. Libby’s
cooperation and the investigation’s progress, four Democratic Members of
Congress wrote to Mr. Libby seeking his personal waiver for Ms. Miller. See Letter from the Honorable John
Conyers, Jr., et al., to I. Lewis Libby, Chief of Staff, Office of the Vice
President (Aug. 8, 2005) ( “Your failure to grant such a waiver to Ms. Miller
has apparently lead her to refuse to testify about her conversation(s) with you
and, in turn, led to her recent incarceration for civil contempt for days”).
While Mr. Libby claimed to have provided Ms. Miller with a personal waiver, Ms.
Miller denied that had occurred.
See Letter from the Honorable I. Lewis Libby, Chief of Staff, Office of
the Vice President, to Judith Miller, New York Times (Sept. 15, 2005); Judith
Miller, “Judith Miller’s Farewell”, The
New York Times, Nov. 10, 2005 (letter to the editor) (“After 85 days, more
than twice as long as any other American journalist has ever spent in jail for
this cause, I agreed to testify before the special prosecutor Patrick J.
Fitzgerald's grand jury about my conversations with my source, I. Lewis Libby
Jr. I did so only after my two
conditions were met: first, that Mr. Libby voluntarily relieve me in writing and
by phone of my promise to protect our conversations; and second, that the
special prosecutor limit his questions only to those germane to the Valerie
Plame Wilson case. Contrary to
inaccurate reports, these two agreements could not have been reached before I
went to jail.”). Furthermore, on September 12, 2005, Mr. Fitzgerald stated quite
clearly that he would welcome such a communication reaffirming Mr. Libby’s
waiver as it might assist the investigation and lead to Ms. Miller’s release,
lending credence to Ms. Miller’s account that there was no personal waiver. See Letter from the Honorable Patrick
Fitzgerald, Special Counsel,
[739]. Special Counsel Patrick
Fitzgerald, Press Conference (Oct. 28, 2005). Indeed, it has not gone unnoticed that
this delay – from October 2004 to October 2005 – permitted the indictments and
disclosure of the Bush Administration’s cover-up to be delayed until after
President Bush was reelected. As E.
J. Dionne wrote in The Washington Post:
Has anyone noticed that the
coverup worked? . . . Note the
significance of the two dates: October 2004, before President Bush was
reelected, and October 2005, after the president was reelected. Those dates make clear why Libby threw
sand in the eyes of prosecutors, in the special counsel’s apt metaphor, and
helped drag out the investigation . . . As long as he was claiming that
journalists were responsible for spreading around the name and past CIA
employment of Wilson’s wife, Valerie Plame, Libby knew that at least some news
organizations would resist having reporters testify. The journalistic “shield” was converted
into a shield for the Bush administration’s coverup.
E. J. Dionne, Jr., “What
the ‘Shield’ Covered Up”, The
[740]. In a press briefing on
September 29, 2003, White House Press Secretary Scott McClellan had the
following exchange with reporters:
Q. You said this morning, quote, ‘The
president knows that Karl Rove wasn’t involved.’ How does he know
that?
McCLELLAN: Well, I’ve made
it very clear that it was a ridiculous suggestion in the first place . . . I’ve
said that it’s not true . . . And I have spoken with Karl
Rove.
Q: It doesn’t take much for
the president to ask a senor official working for him to just lay the question
out for a few people and end this controversy today.
McCLELLAN: Do you have
specific information to bring to our attention? . . . Are we supposed to chase down every
anonymous report in the newspaper?
We’d spend all our time doing that.
Q: When you talked to Mr. Rove, did you discuss, ‘Did you ever have this
information?’
McCLELLAN: I’ve made it
very clear, he was not involved, that there’s no truth to the suggestion that he
was.
McCLELLAN: Dana, I mean,
think about what you’re asking. If
you have specific information to bring to our attention –
Q: No, but you say that –
McCLELLAN: – that suggests White House
involvement. There are anonymous
reports all the time in the media.
The President has set high standards, the highest of standards for people
in his administration. He’s made it
very clear to people in his administration that he expects them to adhere to the
highest standards of conduct. If
anyone in this administration was involved in it, they would no longer be in
this administration.
White House Press Secretary
Scott McClellan, Press Briefing (Sept. 29, 2003), available at http:// ww.
wwhitehouse.gov/news/releases/2003/09/20030929-7.html.
[741]. White House Press
Secretary Scott McClellan, Press Briefing (Oct. 7, 2003), available at
http://www.whitehouse.gov/news/releases/2003/10/20031007-4.html#2:
Q. You have said that you personally went
to Scooter Libby (Vice President Dick Cheney’s chief of staff), Karl Rove and
Elliott Abrams (National Security Council official) to ask them if they were the
leakers. Is that was happened? Why did you do that? And can you describe the conversations
you had with them? What was the
question you asked?
McCLELLAN: Unfortunately,
in
[742]. ABC News, “The Note”
(Sept. 29, 2003), available at
http://www.abcnews.go.com/sections/politics/TheNote/TheNote_Sep29.html
[743]. Meet the Press: Interview
with Vice President Dick Cheney (NBC television broadcast, Sept. 14, 2003); see
also Richard W. Stevenson & Anne E. Kornblut, “Leak Counsel is Said to Press
on Rove’s Role”, The New York Times,
Oct. 26, 2005.
[744]. Libby Indictment 9. This, of course also calls into question
Mr. McClellan’s denial of this misinformation at an October 30, 2005 White House
briefing. Asked whether the Vice President always told the truth to the American
people, Scott McClellan, the White House press secretary apparently answered,
“Yes.” Richard W. Stevenson &
Anne
[745]. President George W. Bush,
Press Conference (Oct. 28, 2003), available at
http://www.whitehouse.gov/news/releases/2003/10/20031028-2.html.
[746]. President George W. Bush,
Press Conference of the President After G8
[747]. President George W. Bush,
President, Prime Minister of India Discuss Freedom and Democracy (July 18,
2005), available at
http://www.whitehouse.gov/news/releases/2005/7/20050718-1.html.
[748]. This stands in sharp
contrast to when the President offered strong ethical pledges during his first
campaign for president, when he said “Americans are tired of investigations and
scandal, and the best way to get rid of them is to elect a new president who
will bring a new administration, who will restore honor and dignity to the White
House.” CNN Today (CNN television
broadcast Sept. 14, 2000) (video clip of then-Governor George W.
Bush).
[749]. Antonia Zerbisias, “TV
Man Is (Shock) Gay, And (Horror) Canadian”,
[750]. As columnist Frank Rich
so aptly stated, “When the Bush mob attacks critics like Ms. Sheehan, its
highest priority is to change the subject.
If we talk about Richard Clarke's character, then we stop talking about
the administration's pre-9/11 inattentiveness to terrorism. If Thomas Wilson is trashed as an
insubordinate plant of the ‘liberal media,’ we forget the Pentagon's abysmal
failure to give our troops adequate armor (a failure that persists today, eight
months after he spoke up). If we
focus on Joseph Wilson's wife, we lose the big picture of how the administration
twisted intelligence to gin up the threat of Saddam's nonexistent
W.M.D.'s.” Frank Rich, Op-Ed, “The
Swift Boating of Cindy Sheehan”, The New
York Times, Aug. 21, 2005, § 4 at 11; see also Editorial, “Banished
Whistle-Blowers”, The New York Times,
Sept. 1, 2005, at A22 (“The Bush Administration is making no secret of its
determination to punish whistle-blowers and other federal workers who object to
the doctoring of facts that clash with policy and
spin.”).
[751]. Editorial, “Banished
Whistle-Blowers”, The New York Times,
Sept. 1, 2005, at A22.
[752]. Department of Defense
Budget Priorities FY 2004: Hearing Before the H. Comm. on Budget, 108th Cong. 9
(2003) (statement of the Hon. Paul D. Wolfowitz, Deputy Secretary of
Defense)(emphasis added).
[753].
Ibid.
[754].
Ibid.
[755]. Eric Schmitt, “Pentagon
Contradicts on Iraq Occupation Force’s Size”, The New York Times, Feb. 27, 2003, at
A1.
[756].
Ibid.
[757]. Matthew Engel, “Scorned
General’s Tactics Proved Right”, The
Guardian, Mar. 29, 2003, at 10.
[758]. Eric Schmitt, “Pentagon
Contradicts on Iraq Occupation Force’s Size”, The New York Times, Feb. 27, 2003, at
A1.
[759].
[760]. Warren P. Strobel and
John Walcott, “Post-War Planning Non-Existent”, Knight-Ridder, Oct. 17, 2004,
available
at http://www.realcities.com/mld/krwashington/9927782.htm. See also Glenn Kessler and Ceci
Connolly, “Plenty of Flaws Among the Facts; Candidates Made Questionable
Claims”, The Washington Post, Oct. 9,
2004, at A20.
[761]. James Fallows, “Bush’s
Lost Year”, Atlantic Monthly, Oct. 1,
2004, at 68.
[762]. Bob Herbert, Op-Ed, “No
End in Sight”, The New York Times,
Apr. 2, 2004, at A19.
[763]. Basu Rekha, “Retaliation
Against War Critics”, Des Moines
Register, July 13, 2005, at 11A.
[764]. See Tom Bowman,
“Unceremonious End to Army Career: Outspoken General Fights Demotion”,
[765].
Ibid.
[766].
Ibid.
[767].
Ibid.
[768]. Frank Rich, Op-Ed, “The
Swift Boating of Cindy Sheehan”, The New
York Times, Aug. 21, 2005, § 4 at 11.
[769]. See 60 Minutes (CBS
television broadcast, Jan. 11, 2004), available at
http://www.cbsnews.com/stories/2004/01/09/60minutes/main592330.shtml (“[N]ine
days after that meeting in which O’Neill made it clear he could not publicly
support another tax cut, the vice president called and asked him to
resign”).
[770].
Ibid
[771].
Ibid.
[772].
Ibid.
[773]. Thom Shanker, “Rumsfeld
Says He Contacted Ex-Official on Bush Book”, The New York Times, Jan. 14, 2004, at
A13.
[774]. Investigation Regarding
Release of Documents to Paul H. O’Neill - Former Treasury Secretary, U.S.
Department of Treasury, Office of the Inspector General, Mar. 17,
2004.
[775]. Paul Krugman, Op-Ed, “The
Awful Truth”, The New York Times,
Jan. 13, 2004, at A25.
[776]. Investigation Regarding
Release of Documents to Paul H. O’Neill - Former Treasury Secretary, U.S.
Department of Treasury, Office of the Inspector General, Mar. 17,
2004.
[777].
Ibid.
[778]. Paul Krugman, Op-Ed, “The
Awful Truth”, The New York Times,
Jan. 13, 2004, at A25.
[779]. Sidney Blumenthal, “He
Cannot Tell a Lie”, Salon, Jan. 15,
2004, available at
http://archive.salon.com/opinion/blumenthal/2004/01/15/o_neill/index_np.html?x.
[780]. “O’Neill: Bush Planned
Iraq Invasion Before 9/11”, CNN.com,
Jan. 10, 2004, available at
http://www.cnn.com/2004/ALLPOLITICS/01/10/oneill.bush/.
[781].
Ibid.
[782]. Edmund L. Andrews,
“Upheaval in the Treasury: Bush, In Shake-Up of Cabinet, Ousts Treasury Leader”,
The New York Times, Dec. 7, 2002, at
A1.
[783]. The Congressional
Research Service, after looking at actual money spent and appropriated for
Fiscal Year 2006, estimates the cost of the
[784]. Frank Rich, Op-Ed, “Bring
Back Warren Harding”, The New York
Times, Sep. 25, 2005.
[785]. Corbett B. Daly, “Ex-Bush
Aide: Iraq War Planning Began After 9/11”, CNN.com, May 20, 2004, available at
http://www.cnn.com/2004/US/03/20/clarke.cbs/.
[786]. 60 Minutes (CBS
television broadcast, Mar. 21, 2004), available at
http://www.cbsnews.com/stories/2004/03/19/60minutes/main607356.shtml.
[787].
Ibid.
[788].
Ibid.
[789]. Judith Miller, “Former
Terrorism Official Faults White House on 9/11”, The New York Times, Mar. 22, 2004, at
A18.
[790]. Press Secretary Scott
McClellan, White House Press Briefing (Mar. 22, 2004), available at
http://www.whitehouse.gov/news/releases/2004/03/20040322-4.html.
[791]. Good Morning
[792]. The Rush Limbaugh Show:
Interview with Vice President Dick Cheney (Mar. 22, 2004), available at
http://www.rushlimbaugh.com/home/daily/site__032204/content/stack_a.guest.html.
[793]. 150 Cong. Rec. S3209
(daily ed. Mar. 26, 2004) (statement of Sen. Frist).
[794]. Joe Conason, “Richard
Clarke Terrorizes the White House”, Salon, Mar. 24, 2004 (emphasis added),
available at
http://archive.salon.com/news/feature/2004/03/24/clarke/print.html.
[795]. Sidney Blumenthal,
“Bush’s War – Against Richard Clarke”, Salon.com, Mar. 25, 2004, available at
http://archive.salon.com/opinion/blumenthal/2004/03/25/clarke/print.html.
[796]. Ryan Lizza, “Logic Jam”,
The New Republic Online, Mar. 24,
2004, available at
http://www.tnr.com/doc.mhtml?i=express&s=lizza032304.
[797]. In addition, on August
10, 2005, Congressman Conyers and 41 other members of Congress signed a letter
to President Bush asking him to meet with Ms. Sheehan. See Letter from Congressman John
Conyers, Jr., Ranking Member, House Committee on the Judiciary, et al., to
President George W. Bush (Aug. 10, 2005), available at
http://www.house.gov/judiciary_democrats/letters/pressheehanltr81005.pdf.
[798]. Bush’s decision not to
meet with Sheehan is a perfect example of what Maureen Dowd describes as Bush’s
life in “meta-insulation. His
rigidly controlled environment allows no chance encounters with anyone who
disagrees. He never has to defend
himself to anyone, and that is cognitively injurious.” Maureen Dowd, Op-Ed, “Why No Tea and
Sympathy?”, The New York Times, Aug.
10, 2005, at A21.
[799].
Ibid.
[800]. Frank Rich, Op-Ed, “The
Swift Boating of Cindy Sheehan”, The New
York Times, Aug. 21, 2005, § 4 at 11.
[801].
Ibid.
[802]. Elisabeth Bumiller, “For
3rd Day in a Row, Bush Says Withdrawal Now From
[803]. Ahmed Amr,
“Counteroffensive: Bush Launches 'Operation Cindy Sheehan'”, Palestine Chronicle, Aug. 28, 2005
(emphasis added), available at
www.globalresearch.ca/index.php?context=viewArticle&code=AMR20050828&articleId=875.
[804]. Frank Rich, Op-Ed, “Eight
Days in July”, The New York Times,
July 24, 2005, § 4 at 13.
[805]. Antonia Zerbisias, “TV
Man Is (Shock) Gay, And (Horror) Canadian”,
[806].
Ibid.
[807].
Ibid.
[808]. See Lloyd Grove, “The
Reliable Source”, The Washington
Post, July 18, 2003, at C3; see also
Editorial, Matt Drudge, a Gay Who Backs the Gay Bashers, Part II, Buzzflash.com,
July 15, 2004, available at
www.buzzflash.com/editorial/04/07/edi04051.html.
[809]. Lloyd Grove, “The
Reliable Source”, The Washington
Post, July 18, 2003, at C3 (emphasis added).
[810]. Antonia Zerbisias, “TV
Man Is (Shock) Gay, And (Horror) Canadian”, Toronto Star, July 19, 2003, at A15
(emphasis added).
[811]. See Frank Rich, Op-Ed,
“Eight Days in July”, The New
YorkTimes, July 24, 2005, § 4 at 13.
[812]. See George Monbiot,
“Chemical Coup D’Etat: The US Wants to Depose the Diplomat Who Could Take Away
Its Pretext for War With Iraq”, The
Guardian, Apr. 16, 2002, available at
http://www.guardian.co.uk/Archive/Article/0,4273,4394862,00.html.
[813]. Charles J. Hanley,
“Bolton Said to Orchestrate Unlawful Firing”, Associated Press, June 5, 2005,
available at
http://www.commondreams.org/headlines05/0605-05.htm.
[814]. See “AP Probe on Bolton
Finds Disturbing Links to Iraq War”, Associated Press, June 4, 2005,
available at
http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1000946569.
[815].
Ibid.
[816].
Ibid.
[817]. Charles J. Hanley,
“Bolton Said to Orchestrate Unlawful Firing”, Associated Press, June 5, 2005 (emphasis
added).
[818]. “AP Probe on Bolton Finds
Disturbing Links to Iraq War”, Associated
Press, June 4, 2005 (emphasis added), available at
http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1000946569.
[819]. George Monbiot, “Chemical
Coup D’Etat: The US Wants to Depose the Diplomat Who Could Take Away Its Pretext
for War With Iraq”, The Guardian,
Apr. 16, 2002 (emphasis added), available at
http://www.guardian.co.uk/Archive/Article/0,4273,4394862,00.html.
[820]. “AP Probe on Bolton Finds
Disturbing Links to Iraq War”, Associated
Press, June 4, 2005, available at
http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1000946569.
[821].
Ibid.
[822].
Ibid.
[823]. Meet the Press: Interview
with Vice President Dick Cheney (NBC television broadcast, March 16, 2003),
available at http://msnbc.msn.com/id/3080244/.
[824]. Dafna Linzer, “Nuclear
Arms Inspectors Get Peace Prize”, The
[825]. Craig S. Smith, “Atomic
Agency and Chief Win the Peace Prize”, The New York Times, Oct. 8, 2005, at A1
(emphasis added).
[826]. Ibid. (emphasis
added).
[827]
Ibid.
[828]. Erik Eckholm, “A Top
[829].
Ibid.
[830]. An Oversight Hearing on
Waste, Fraud, and Abuse in U.S. Government Contracting in Iraq Before the Senate
Democratic Policy Comm., 109th Cong. (2005) (statement of Bunnatine Greenhouse),
available at
http://democrats.senate.gov/dpc/hearings/hearing22/transcript.pdf.
[831].
Ibid.
[832].
Ibid.
[833]. Erik Eckholm, “Army
Contract Official Critical of Halliburton Pact Is Demoted”, The New York Times, Aug. 29, 2005, at
A9.
[834]. Frank Rich, Op-Ed, “Bring
Back Warren Harding”, The New York
Times, Sept. 25, 2005, § 4, at 11.
[835]. Christian Miller,
“Democrats Demand Probe of Demotion”,
[836]. Mark Danner, “The
[837].
[838]. E.J. Dionne Jr., Op-Ed,
“What the ‘Shield’ Covered Up”, The
Washington Post, Nov. 1, 2005, at A25 (emphasis
added).
[839]. The Administration’s
efforts to pressure the CIA to manipulate the intelligence is discussed in more
detail in Section III(B): Misstating and Manipulating the Intelligence to
Justify Pre-emptive War.
[840].
Ibid.
[841].
Ibid.
[842].
Ibid.
[843]. See
[844].
Ibid.
[845]. The Administration’s
efforts to retaliate against CIA officials seeking to set the record straight on
the Iraqi defector known as “Curveball” is discussed in greater detail in
Section III(B)(5): Misstating and Manipulating the Intelligence to Justify
Pre-emptive War: Chemical and Biological Weapons (emphasis
added).
[846]. Bob Drogin and John
Goetz, “How U.S. Fell Under the Spell of ‘Curveball’”,
[847].
Ibid.
[848].
Ibid. (emphasis
added).
[849]. James Risen, “Spy’s Notes
on Iraqi Aims Were Shelved, Suit Says”, The New York Times, Aug. 1, 2005, at
A8.
[850].
Ibid.
[851].
See Ibid.
[852].
See Ibid.
[853]Robert Parry, Why U.S.
Intelligence Failed, Consortiumnews.com, Oct. 22, 2003, available at http://www.consortiumnews.com/2003/102203.html. According to Robert
Parry:
As the Iraqi death toll
mounts and the price tag for the
[854]President George W. Bush,
Remarks from the USS Abraham Lincoln (May 1, 2003), available at
http://www.whitehouse.gov/news/releases/2003/05/iraq/20030501-15.html.
[855]. Secretary Donald H.
Rumsfeld, Department of Defense News Transcript (June 18, 2003), available at http://www.dod.mil/transcripts/2003/tr20030618-secdef0282.html.
[856]. “
[857]. Face the Nation:
Interview with Secretary Donald H. Rumsfeld (CBS television broadcast, Mar. 14,
2004).
[858]. President George W. Bush,
Press Conference (Oct. 4, 2005), available at
http://www.whitehouse.gov/news/releases/2005/10/20051004-1.html.
[859]. Dave Moniz, “Ex-Army
Boss: Pentagon Won’t Admit Reality in
[860]. Ibid.
[861]. See e.g., 60 Minutes:
Interview with General Anthony Zinni (CBS television broadcast, May 21, 2004),
available at
http://www.cbsnews.com/stories/2004/05/21/60minutes/main618896.shtm.
[862]. Joe Klein, “Saddam’s
Revenge: The Secret History of U.S. Mistakes, Misjudgments and Intelligence
Failures that Let the Dictator and His Allies Launch an Insurgency Now Ripping
Iraq Apart”, Time, Sept. 26, 2005, at
44.
[863]. See Testimony on the
[864]. Eric Schmitt, “Iraqis Not
Ready to Fight Rebels on Their Own,
[865]. Frank Rich, Op-Ed, “The
Faith-Based President Defrocked”, The New York Times, Oct. 9, 2005, §4,
at 13.
[866]. Frank Rich, Op-Ed, “The
Vietnamization of Bush’s Vacation”, The
New York Times, Aug. 28, 2005.
[867]. See Minority Staff of H.
Comm. on Gov’t Reform, 109th Cong., The Bush Administration Record: The
Reconstruction of Iraq (2005), available at
http://www.democrats.reform.house.gov/Documents/20051018102134-35570.pdf.
[868]. Ibid.
[869]. Rick Jervis, “Iraq
Rebuilding Slows as U.S. Money for Projects Dries Up”, USA Today, Oct. 10, 2005, at 1A
(emphasis added).
[870]. Dana Milbank, “Curtains
Ordered for Media Coverage of Returning Coffins”, The
[871]. Bradley Graham, “Enemy
Body Counts Revived:
[872]. According to the Village
Voice, “The soldier on the left side of the front row was actually a flack
herself, though she didn’t reveal it during the regime’s 24-minute
infomercial. Her name is Corine
Lombardo....David Axe, who’s made several forays into
[873]. CNN Live at Daybreak (CNN
television broadcast, Oct. 14, 2005), available at
http://transcripts.cnn.com/TRANSCRIPTS/0510/14/lad.04.html (emphasis
added).
[874]. Mark Mazzetti &
Borzou Daragahi, “
[875]. Jeff Gerth, “Military's
Information War Is Vast and Often Secretive”, The New York Times, Dec. 11, 2005, at
1.
[876]. Mark Mazzetti &
Borzou Daragahi, “
[877]. Jeff Gerth, “Military's
Information War Is Vast and Often Secretive”, The New York Times, Dec. 11, 2005, at
1.
[878]. Maureen Dowd, Op-Ed, “W’s
Head in the Sand”, The New York
Times, Dec. 3, 2005, at A29.
[879]. Jeff Gerth, “Military's
Information War Is Vast and Often Secretive”, The New York Times, Dec. 11, 2005, at
1.
[880].
Ibid.
[881]. The Lincoln Group has
signed a $16 million propaganda contract with the Pentagon and disseminated
false stories such as the claim that Adnan Ihsan Saeed al-Haideri had helped buy
tons of biological, nuclear and chemical weapons described in Section III.B.5
above. James Bamford, “The Man Who
Sold the War”, Rolling Stone. Nov.17,
2005, at 52-62.
[882].“The Information
Collection Program succeeded in heavily influencing coverage in the Western
press in the run-up to the war. A
report issued by the Defense Intelligence Agency last fall concluded that almost
all the information given to the government through the ICP and its roster of
defectors before the war was useless.... [Although] the group’s agreement with
the State Department strictly barred the INC from “attempting to influence the
policies of the
[883]. Editorial, “Plan: We
Win”, The New York Times, Dec. 1,
2005, at A32.
[884]. Maureen Dowd, Op-Ed, “W’s
Head in the Sand”, The New York Times, Dec. 3, 2005, at
A29.
[885]. Scott Shane, “Bush’s
Speech On Iraq Echoes Analyst’s Voice”, The New York Times, Dec. 4, 2005,
at 1 (emphasis added).
[886]. Elizabeth Bumiller,
“Threats and Responses: The Cost; White House Cuts Estimate of Cost of War With
[887]. Hearing Before the House
Armed Services Committee, 108th Cong. (2004).
[888]. See H.R. J. Res. 73,
109th Cong., 1st Sess. (2005).
[889]. Carl Kaysen, et. al, “War
With Iraq: Costs, Consequences and Alternatives” (2002), available at
http://www.amacad.org/publications/monographs/War_with_Iraq.pdf.
[890]. Linda Bilmes, “The
Trillion-Dollar War”, The New York Times, Aug. 20, 2005, at
A13.
[891].
Ibid.
[892]. John Daniszewski, “New
Memos Detail Early Plans for Invading
[893]. See Letter to President
George W. Bush (June 16, 2005), available at
http://www.johnconyers.com/index.asp?Type=SUPERFORMS&SEC={8771D3DA-2F3D-49F7-895C-DF473CAEFA2C}. As of December 19, 2005, there has been
no response from the Bush Administration.
[894]. President George W. Bush,
Interview by TVP,
[895]. President George W. Bush,
Remarks at a Press Conference with British Prime Minster Tony Blair (July 17,
2003), available at
http://www.whitehouse.gov/news/releases/2003/07/20030717-9.html (emphasis
added).
[896]. ABC News This Week (ABC
television broadcast, Mar. 30, 2003).
[897]. James Risen,
“Ex-Inspector Says C.I.A. Missed Disarray in Iraqi Arms Program”, The New
York Times, Jan. 26, 2004, at A1.
[898]. Face the Nation (CBS
television broadcast, July 13, 2003) (emphasis
added).
[899]. Press Briefing on Iraq
Weapons of Mass Destruction and the State of the Union Speech, (July 22, 2003)
available at
http://www.whitehouse.gov/news/releases/2003/07/20030722-12.html.
[900]. National Intelligence
[901]. President George W. Bush,
State of the Union Address (Jan. 20, 2004), available at
http://www.whitehouse.gov/news/releases/2004/01/20040120-7.html.
[902]. Judy Keen, “Cheney Says
its Too Soon to Tell on Iraqi Arms”, USA Today, Jan. 19, 2004, at 7A; see
also Maura Reynolds, “Cheney Calls Ex-Friend O’Neill a ‘Big Disappointment’”,
Los Angeles Times, Jan. 19, 2004, at A22.
[903]. Dana Milbank & Mike
Allen, “
[904]. “Wolfowitz: WMD secondary
issue in
[905]. President George W. Bush,
Press Conference (Apr. 13, 2004), available at
http://www.whitehouse.gov/news/releases/2004/04/20040413-20.html.
[906]. Iraqi Mobile Biological
Warfare Agent Production Plants, CIA/DIA Report, May 28, 2003, available
at
http://www.cia.gov/cia/reports/iraqi_mobile_plants/paper_w.pdf.
[907]. Secretary Colin Powell,
Interview with French Television (May 22, 2003), available at
http://www.state.gov/secretary/former/powell/remarks/2003/20908.htm.
[908]. Douglas Jehl, Iraqi
Trailers Said to Make Hydrogen, “Not Biological Arms”, The New York
Times, August 9, 2003, at A1.
[909].
Ibid.
[910]. Douglas Jehl & David
E. Sanger, “Powell’s Case, a Year Later: Gaps in Picture of Iraq Arms”, The
New York Times, Feb. 1, 2004, at 1.
[911]. Joseph Cirincione,
Jessica Tuchman Mathews, and George Perkovich, with Alexis Orton, “WMD in
[912]. Statement by David Kay on
the Interim Progress Report on the Activities of the Iraq Survey Group (ISG)
before the House Permanent Select Committee on Intelligence, the House Committee
on Appropriations, Subcommittee on Defense, and the Senate Select Committee on
Intelligence (Oct. 2, 2003).
[913].
Ibid.
[914]. Bob Drogin and John
Goetz, How
[915].
Ibid.
(emphasis
added).
[916].
Ibid.
[917].
Ibid.
[918].
Ibid.
[919].
Ibid.
(emphasis
added).
[920].
Ibid.
[921]. David Barstow, William J.
Broad, & Jeff Gerth, “How the White House Embraced Disputed Iraqi Arms
Intelligence”, The New York Times, Oct. 3, 2004, at
A1.
[922].
Ibid.
[923]. Judd Legum, Faiz Shakir,
Nico Pitney, Amanda Terkel, Payson Schwin, and Christy Harvey, The Progress
Report, American Progress Action Fund, Nov. 17,
2005.
[924]. Frank Rich, “One Step
Closer to the Big Enchilada”, The New York Times, Oct. 30, 2005, at
12.
[925]. Meet the Press:
Interview with Vice President Dick Cheney (NBC television broadcast, Dec. 9,
2001).
[926]. President George W. Bush,
Remarks to Military Personnel at
[927]. He said that “those
people who have looked at that issue, some committees on the Hill in Congress,
and also the Silberman-Robb Commission, have concluded that it did not
happen.”
[928]. Editorial, “Decoding Mr.
Bush’s Denials”, The New York Times, Oct. 15, 2005, at
26.
[929]. Dana Milbank and Walter
Pincus, “Asterisks Dot White House’s Iraq Argument”, The Washington Post,
Nov. 12, 2005, at A1.
[930]. Peter Baker & Susan
B. Glasser, Bush Says 10 Plots by Al Qaeda Were Foiled, The
[931]. Frank Rich, Falluja
Floods the Superdome, The New York Times, Sept. 4, 2005, §4, at
10.
[932]. Peter Baker & Susan
B. Glasser, “Bush Says 10 Plots by Al Qaeda Were Foiled”, The
[933].
Ibid.
[934]. David Broder, “Our
Back-Seat Congress”, The Washington Post, Sept. 4, 2005, at B07 (emphasis
added).
[935]. H. R. R. XIII § 7, 109th Cong. (2005)
(Resolutions of Inquiry) (describing procedure used to request documents from
the Executive Branch. Under House
rules, a Resolution of Inquiry is to be voted on by all Members of Congress
unless negative action is taken in the relevant committee within 14 legislative
days).
[936]. Letter from the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee, et al., to the
Honorable George W. Bush, President (May 5, 2005), available at
http://www.house.gov/judiciary_democrats/letters/bushsecretmemoltr5505.pdf. Throughout the month, 39 members added
their names to the letter, bringing the total of members seeking answers to 122,
including Leader Pelosi.
[937]. On May 17, 2005, Scott
McClellan told reporters that the White House saw "no need" to respond to the
letter from Congress regarding the Downing Street Minutes. See Kelley Beaucar Vlahos, Downing
Street Memo mostly ignored in US, FoxNews.com., June 1, 2005, available
at http://www.foxnews.com/story/0,2933,158228,00.html. Again on June 16, 2005, during a press
briefing, McClellan was asked if the President had responded to the letter that
Representative Conyers and 88 other members of Congress had sent. (The correct number is 89). The following dialogue
ensued:
Q:Has the President or anyone else responded?
MR. McCLELLAN: Not that I'm aware of.
Q Why not?
MR. McCLELLAN: Why not?
Because I think that this is an individual who voted against the war in the
first place and is simply trying to rehash old debates that have already been
addressed. And our focus is not on the past. It's on the future and working to
make sure we succeed in
These matters have been addressed, Elaine. I think you know that very
well. The press --
Q Scott, 88 members of Congress signed that letter.
MR. McCLELLAN: The press -- the press have covered it, as well.
Q What do you say about them?
Q But, Scott, don't they deserve the courtesy of a response back?
MR. McCLELLAN: Again, this has been addressed. Go ahead.
Q Scott, on John Conyers,
John Conyers is walking here with that letter again, as you have acknowledged
from Elaine's comment. But 88 leaders on Capitol Hill signed that letter. Now, I
understand what you're saying about him, but what about the other 88 who signed
this letter, wanting information, answers to these five questions?
MR. McCLELLAN: How did they vote on the war -- the decision to go to war
in
Q Well, you have two --
well, if that's the case, you have two Republicans who are looking for a
timetable. How do you justify that?
MR. McCLELLAN: I already talked about that.
Q I understand, but let's talk about this.
MR. McCLELLAN: Like I said --
Q Well, just because -- I
understand -- but wait a minute, that's not -- if leaders from Congress -- if
you're talking about unifying and asking for everyone to come together, why not
answer, whether they wanted the war or not, answer a letter where John Conyers
wrote to the President and then 88 congressional leaders signed? Why not answer
that?
MR. McCLELLAN: For the
reasons I stated earlier. This is simply rehashing old debates that have already
been discussed.
See White House Press
Secretary Scott McClellan, Press Briefing (June 16, 2005) (transcript
available at
http://www.whitehouse.gov/news/releases/2005/06/20050616-5.html.
[938]. Letter from the Honorable
John Conyers, Jr., Ranking Member, Committee on the Judiciary, to the Honorable
Donald H. Rumsfeld, Secretary of Defense (May 31, 2005), available at
http://www.house.gov/judiciary_democrats/letters/rumsfeldairstrikesltr53105.pdf.
[939]. Letter from Peter W.
Rodman to the Honorable John Conyers, Jr., Ranking Member, Committee on the
Judiciary (July 28, 2005), available at
http://www.house.gov/judiciary_democrats/responses/rumsfeldairstrikesresp72805.pdf.
[940]. Letter from the Honorable
John Conyers, Jr., Ranking Member, Committee on the Judiciary, et al., to the
Honorable James Sensenbrenner, Jr., Chairman, Committee on the Judiciary; the
Honorable Duncan Hunter, Chairman, Committee on Armed Forces; the Honorable
Henry J. Hyde, Chairman, Committee on International Relations; and the Honorable
Peter Hoekstra, Chairman, Permanent Select Committee on Intelligence (June 30,
2005), available at
http://www.house.gov/judiciary_democrats/letters/chairdowningltr63005.pdf.
[941]. Letter from the Honorable
John F. Kerry, et al., to the Honorable Pat Roberts, Chairman, Select Committee
on Intelligence, and the Honorable John D. Rockefeller, IV, Vice Chairman,
Select Committee on Intelligence (June 22, 2005), available at
http://www.kerry.senate.gov/v3/headlines/pdf/SSCI_Letter_Downing_Street.pdf.
[942]. Letter from the Honorable
Pat Roberts, Chairman, Select Committee on Intelligence, to the Honorable John
F. Kerry (July 20, 2005).
[943]. Letter from the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee, et al., to Mr.
Brett Gerry, Associate Counsel, Office of Counsel to the President; Ms. Margaret
P. Grafeld, Information and Privacy Coordinator, U.S. Department of State; and
Mr. C.Y. Talbott, Chief, Office of Freedom of Information and Security Review,
U.S. Department of Defense (June 30, 2005), available at
http://www.house.gov/judiciary_democrats/letters/downingfoialtr63005.pdf.
[944]. Neither the State
Department nor the White House responded to the original FOIA request within the
prescribed period of time. Thus, on
August 11, 2005, Representative Conyers sent a follow-up letter requesting the
information. See Letter from the
Honorable John Conyers, Jr., Ranking Member, House Judiciary Committee, to Mr.
Brett Gerry, Associate Counsel, Office of Counsel to the President, and Ms.
Margaret P. Grafeld, Information and Privacy Coordinator, U.S. Department of
State (Aug. 11, 2005), available at
http://www.house.gov/judiciary_democrats/letters/downingfoiafollowupltr81105.pdf.
The State Department then called the House Judiciary Committee Democratic
staff asking for a clarification letter.
That letter was sent on September 19, 2005, see Letter from the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee, to Ms. Charlene
Wright Thomas, Chief, Requestor/Liaison Division, U.S. Department of State
(Sept. 19, 2005), available at
http://www.house.gov/judiciary_democrats/letters/dosfollowupfoialtr91905.pdf,
and the State Department responded on September 27, 2005, stating that the
request was being processed. See
Letter from Lorraine B. Temple, Requester Communications Branch, U.S. Department
of State, to the Honorable John Conyers, Jr., Ranking Member, House Judiciary
Committee (September 27, 2005), available at
http://www.house.gov/judiciary_democrats/responses/dosfollowupfoiaresp92705.pdf. Since then, staff members have called
periodically to check on the status of the request but have been told on each
occasion that the Department is still working on it. To date, the White House has neither
responded to nor acknowledged these requests.
The Department of Defense responded by phone call to the House Judiciary
Committee Democratic staff, asking for a clarification letter. The Department stated that the request
was very lengthy and complex and that it would behoove the signatories to narrow
the request so that the Department could more easily comply. Per the Department’s statements,
Congressman Conyers sent a clarification letter – with specific changes
suggested by the Department – on July 28, 2005. See Letter from the Honorable John
Conyers, Jr., Ranking Member, House Judiciary Committee, to Mr. Jim Hogan,
Office of Freedom of Information and Security Review, U.S. Department of Defense
(July 28, 2005), available at
http://www.house.gov/judiciary_democrats/letters/downingfoiafollowupltr72805.pdf.
After waiting several months for a response, Congressman Conyers finally
received a letter on November 30, 2005, stating that the “revised request is
still highly complex and will take a considerable time to process,” despite the
fact that specific changes were made to avoid this result. See Letter from Will Kramer, Chief,
Office of Freedom of Information, Department of Defense, to the Honorable John
Conyers, Jr. The Department also
denied the request for a fee waiver because the request “offered no information
on how you plan to disseminate the information to the general public.” Ibid. In addition, the Department indicated
that the request will be significantly delayed because the Department will not
even begin to process the request until receiving a statement of willingness to
pay applicable fees, which the Department estimates to be around $110,000, not
including reproduction charges.
This decision is appealable, but such an appeal would come at the expense
of having to wait months, if not years, before receiving information of vital
public import.
[945]. H.R. Res. 375, 109th
Cong. (2005). Congressman Maurice
Hinchey introduced a similar resolution requesting “all documents in the
possession of the President and Secretary of Defense relating to communications
with officials of the
[946]. H.R. Rep. No. 109-223
(2005).
[947]. Letter from the Honorable
Henry A. Waxman, Ranking Member, Committee on Government Reform, to Dr.
Condoleezza Rice, Assistant to the President for NSA (June 10, 2003); Letter
from the Honorable Henry A. Waxman, Ranking Member, Committee on Government
Reform, to Dr. Condoleezza Rice, Assistant to the President for NSA (July 29,
2003).
[948]. Letter from the Honorable
Henry A. Waxman, Ranking Member, Committee on Government Reform, to Secretary of
State Colin L. Powell (July 21, 2003).
[949]. Letter from the Honorable
Henry A. Waxman, Ranking Member, Committee on Government Reform, to President
George W. Bush (March 17, 2003);
Letter from the Honorable Henry A. Waxman, Ranking Member, Committee on
Government Reform, to President George W. Bush (June 2,
2003).
[950]. Even though Secretary of
State Powell responded, National Security Adviser Rice ignored the two
requests. President Bush’s response
to Representative Waxman’s March 17, 2003 was an ambiguous one-page letter from
the State Department and the President did not respond to Mr. Waxman’s letter of
June 2, 2003.
[951]. Letter from the Honorable
Nancy Pelosi, et al., to President George W. Bush (Feb. 2, 2004), available
at
http://www.house.gov/pelosi/press/releases/Feb04/IraqReview020204.html. An independent review was
essential because the Commission established by President Bush in February 2004,
the Silberman-Robb Commission on Intelligence Capabilities of the United States
Regarding Weapons of Mass Destruction, was limited to investigating how
intelligence was developed and did not authorize inquiry into how policymakers
used the intelligence. In fact, the
Commission was barred from interviewing President Bush and Vice President
Cheney.
[952]. These assessments were
relegated to a “Phase II” of the investigation, which Chairman Roberts more or
less abandoned, stating that “we have now heard it all regarding prewar
intelligence. I think that it would
be a monumental waste of time to replow this ground any further.” Remarks by the Honorable Pat Roberts on
the WMD Commission Report (Mar. 31, 2005), available at
http://roberts.senate.gov/03-31-2005.htm.
[953]. Shaun Waterman, Robert
calls for constant change in intel, UPI, March 10, 2003, available at
http://www.washtimes.com/upi-breaking/20050310-060505-9514r.htm.
[954]. Letter from the Honorable
Dianne Feinstein to the Honorable Pat Roberts, Chairman, Senate Intelligence
Committee (July 29, 2005), available at
http://feinstein.senate.gov/05releases/r-intel-robrts.htm.
[955]. See 151 Cong. Rec. 142,
S12099 (daily ed. Nov. 1, 2005).
Senator Reid also issued a fact sheet to reporters showing that at every
turn, “Republicans have blocked efforts to investigate how intelligence was used
in the run-up to the war in
[956]. Memorandum from the
Honorable Jane Harman, Ranking Member, Permanent Select Committee on
Intelligence, to the Honorable Peter Hoekstra, Chairman, Permanent Select
Committee on Intelligence (Nov. 4, 2005), available at
http://www.house.gov/harman/press/releases/2005/051110_pre-war.html.
[957]. Letter from the Honorable
Peter Hoekstra, Chairman, Permanent Select Committee on Intelligence, to the
Honorable Jane Harman, Ranking Member, Permanent Select Committee on
Intelligence (Nov. 10, 2005).
[958]. Letter from the Honorable
Henry Waxman, Ranking Member, House Government Reform Committee, to the
Honorable Tom Davis, Chairman, House Government Reform Committee (Oct. 4, 2005),
available at
http://www.democrats.reform.house.gov/story.asp?ID=710&Issue=Iraq+Intelligence+and+Nuclear+Evidence
[959]. Letter from the Honorable
Henry A Waxman, Ranking Member, Committee on Government Reform, to the Honorable
Porter J. Goss, Chairman, Permanent Select Committee on Intelligence, and the
Honorable Jane Harman, Ranking Member, Permanent Select Committee on
Intelligence (July 15, 2003), available at
http://www.democrats.reform.house.gov/story.asp?ID=327&Issue=Iraq+Intelligence+and+Nuclear+Evidence. The request was for hearings on
President Bush’s use of the false information about
[960]. Letter from the Honorable
Jerrold Nadler to the Honorable F. James Sensenbrenner, Jr., Chairman, Committee
on the Judiciary (Oct. 31, 2005), available at
http://www.house.gov/apps/list/press/ny08_nadler/JudHearingIraqWar103105.html.
[961]. 151 Cong. Rec.
H9566-H9568 (daily ed. November 3, 2005) (Privileged Resolutions on
[962].
Ibid.
[963].
Ibid.
[964]. H. Res. 549, 109th Cong.
(2005).
[965]. Representative Kucinich
also introduced H. Res. 505, which sought documents and records relating to
White House Iraq Group, which was organized by Andrew Card and consists of Karl
Rove, Karen Hughes, Mary Matalin, Nicholas E. Calio, James R. Wilkinson,
Condoleezza Rice, Stephen Hadley and I. Lewis Libby. The resolution was defeated on a party
line vote. H. Res. 505, 109th Cong.
(2005).
[966]. Markup of H.Res. 549,
before the H. Comm. on Int’l Relations, 109th Cong.
(2005).
[967]. Letter from the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee, et al., to the
Honorable F. James Sensenbrenner, Chairman, House Judiciary Committee (June 17,
2004).
[968]. Letter from the Honorable
Henry A. Waxman, Ranking Member, Committee on Government Reform, to the
Honorable Tom Davis, Chairman, Committee on Government Reform (May 4,
2004).
[969]. Letter from the Honorable
Henry A. Waxman, Ranking Member, Committee on Government Reform, the Honorable
John Conyers, Jr., Ranking Member, Committee on the Judiciary, the Honorable
David R. Obey, Ranking Member, Committee on Appropriations, the Honorable Ike
Skelton, Ranking Member, Committee on Armed Services, the Honorable Tom Lantos,
Ranking Member, Committee on International Relations, and the Honorable Jane
Harman, Ranking Member, Permanent Select Committee on Intelligence, to The
President (June 3, 2004), available at
http://www.house.gov/judiciary_democrats/bushiraqiprisondocrequestltr6304.pdf.
[970]. Letter from the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee, et al., to the
Honorable John D. Ashcroft, Attorney General of the United States, U.S.
Department of Justice (May 20, 2004), available at
http://www.house.gov/judiciary_democrats/agiraqspeccounselltr52004.pdf; Letter
from the Honorable John Conyers, Jr., Ranking Member, House Judiciary Committee,
to the Honorable Alberto R. Gonzales, Attorney General of the United States,
U.S. Department of Justice (May 12, 2005), available at
http://www.house.gov/judiciary_democrats/letters/agspecialcounseltortureltr51205.pdf.
[971]. Letter from William E.
Moschella, Assistant Attorney General, Department of Justice, to the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee (July 11, 2005),
available at
http://www.house.gov/judiciary_democrats/responses/agiraqspeccounselresp71105.pdf;
Letter from William E. Moschella, Assistant Attorney General, Department of
Justice, to the Honorable John Conyers, Jr., Ranking Member, House Judiciary
Committee (Oct. 14, 2005), available at
http://www.house.gov/judiciary-democrats/responses/agspecialcounseltortureresp101405.pdf. In all, Democrats have written more than
a dozen letters to Bush Administration officials requesting public
accountability for the inexcusable offenses at Abu Ghraib. Very few of these letters have ever
engendered a response from the Executive Branch; what responses have been
received are of exceptionally limited substance.
[972]. S. 1042 (109th Congress,
1st Sess.), S. Amdt. 2430 offered by Sen. Carl Levin.
[973]. 151 Cong. Rec.
S12479-S12516 (daily ed Nov. 8, 2005).
[974]. H. Res. 690, 108th Cong.
(2004).
[975]. H.R. 3003, 109th Cong.
(2005).
[976]. H. Res 689, 108th Cong.
(2004); H. Res 699, 108th Cong. (2004); H. Res 700, 108th Cong.
(2004).
[977]. H.R. Rep. No. 108-658 at
47 (2004).
[978]. Republicans argued that
the Administration has substantially complied with the requests contained in the
three resolutions; many of the documents requested are sensitive as they relate
to military operations in a time when the country is at war; and there are
competing investigations.
Ibid. at 11. These
arguments, however, are spurious.
First, because none of the ongoing investigations have inquired into the
Justice Department’s role in sanctioning such behavior, the Resolutions of
Inquiry would not interfere or duplicate any ongoing investigations. Moreover, as noted in the Democratic
dissenting views, the documents the administration released “are so far afield
of the legal consensus in the American and International legal community, an
investigation into their creation and to what extent they evolved and were
utilized is necessary.”
Ibid. at 50. In addition, the administration did not release all
relevant documents and, in fact, released a selection of documents that leave
large gaps not only in time, but in substance. Finally, the resolutions would have
requested a much larger field of documents that had already been released.
[979]. H. Res 640, 108th Cong.
(2004).
[980]. The Committee reported
the resolution adversely because it concluded that the Department of Defense has
provided the requested materials to the committee, and that, with respect to
information regarding investigations into alleged contractor abuses of
detainees, the Department had not completed any specific investigations. H.R. Rep. No. 108-547 at 5 (2004). Again, these arguments are
disingenuous. In the Democratic
dissenting views, the members note that the Taguba report Aleaves unaddressed
important questions of personal accountability and systemic deficiencies that
the committee can and should explore. Ibid. at
10.
[981]. Numerous reports have
been filed, including the Taguba Report, which investigated allegations of abuse
committed by the 800th Military Police Brigade at Abu Ghraib prison. In the report, Maj. Gen. Antonio M.
Taguba found systematic abuse in order to loosen up detainees before
interrogation. See Article 15-6
Investigation of the 800th Military Police Brigade, available
at www.findlaw.com. There was
also the report of the Independent Panel to Review Department of Defense
Detention Operations, prepared by former Secretary of Defense James
Schlesinger. Independent Panel to
Review Department of Defense Detention Operations, Aug. 2004, at 3, available
at www.defenselink.mil.
Although this report found Athe abuses were not just the failure of some
individuals to follow known standards, and they are more than the failure of a
few leaders to enforce proper discipline,it concluded that the failures in
leadership had already been sufficiently dealt with, that senior level
administrators in the Administration did not know about the abuse and were
therefore not culpable, and that they just need to find a better way to
communicate so- called Abad news. Ibid. at 92
The Army Inspector
General=s report reviewed doctrine, training and procedure in the Central
Command area and did not review policy actions or inactions taken by the
Administration. See Department of
the Army, Inspector General, Detainee Operations Inspection, July 21, 2004, at
3, available at www.defenselink.mil. The Navy Inspector Generals report,
prepared by Vice Adm. Albert T. Church, reviewed interrogation policies and
practices in
In addition, there have
been eight other reports, investigating other locations such as
[982]. There has also been
substantial evidence that these investigations were not conducted in a regular
or sincere way. For example, one
officer of the 82nd has come forward and stated that he spent 17 months trying
to report incidents of abuse and clarify what standard of treatment was
acceptable. Leadership
Failure: Firsthand Accounts of
Torture of Iraqi Detainees by the U.S. Army’s 82nd Airborne Division, Human
Rights Watch, September 2005, Volume 17, No. 3(G), available at
www.hrw.org. However, his
complaints were not investigated until he informed the military that he was
speaking to a U.S. Senator.
See Eric Schmitt, “Officer Criticizes Detainee Abuse Inquiry”,
The New York Times, Sept. 28, 2005.
[983]. Letter from the Honorable
John Conyers, Jr., Ranking Member, Committee on the Judiciary, and the Honorable
Henry A. Waxman, Ranking Member, Committee on Government Reform, to President
George W. Bush (Feb. 10, 2004). In
addition, on July 14, 2005, Congressman Waxman wrote to White House Chief of
Staff Andrew Card asking whether the White House complied with an order
requiring an internal investigation and the implementation of remedial
measures. Letter from Honorable
Henry A. Waxman, Ranking Member, Committee on Government Reform, to White House
Chief of Staff Andrew Card (July 14, 2005), available at
http://www.democrats.reform.house.gov/Documents/20050714122956-30175.pdf.
[984]. Letter from the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee, to the Honorable
Karl Rove, Senior Advisor to the President (Oct. 7, 2003), available at
http://www.house.gov/judiciary_democrats/roveresignltr10703.pdf.
[985]. Letter from the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee, et al., to
President George W. Bush (July 14, 2005).
Senator Schumer sent a similar letter seeking information about Rove’s
involvement in the leak, the President’s understanding of that involvement, and
an explanation of why the President had not taken action against Rove–either
firing him or revoking his security clearance–once his involvement had been
learned. See Letter from the
Honorable Charles E. Schumer to President George W. Bush (Oct. 19, 2005). We are unaware of any response to this
letter.
[986]. Senate Democrats also
sought to revoke Rove’s security clearance after passing an amendment to strip
the security clearance of anyone who knowingly revealed classified information.
S. 1042, 109th Cong.'1072 (2005)(enacted) (Amendment No. 2478 of Sen. Frank
Lautenberg, reprinted in 151 Cong. Rec. S.12,575 (2005)). In a letter dated November 14, 2005,
Senator Lautenberg, along with Senators Durbin, Reed, Harkin and
[987]. Letter from the Honorable
Maurice Hinchey, et al., to Vice President Richard B. Cheney (Nov. 3,
2005). As noted in The Nation, this
letter, which followed Senator Reid’s success in forcing the Senate into a
closed session to discuss intelligence issues related to
[988]. Letter from the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee, to President
George W. Bush (July 25, 2005), available at
http://www.house.gov/judiciary_democrats/letters/prespardonltr72505.pdf.
[989]. Letter Letter from
Senator Harry Reid, Democratic Leader,
[990]. Letter from the Honorable
Henry Waxman, Ranking Member, Committee on Government Reform, to Secretary of
Defense Donald Rumsfeld (August 29, 2005) available at
http://www.democrats.reform.house.gov/Documents/20050829160953-04500.pdf.
[991]. Letter from the Honorable
Francis Harvey, Acting Secretary of the Army, to Honorable Henry A. Waxman,
Ranking Member, Committee on Government Reform (September 27,
2005).
[992]. Letter from the Honorable
Henry A. Waxman, Ranking Member, House Committee on Government Reform, to
Condeleeza Rice, Secretary of State (January 14, 2004), available at
http://www.democrats.reform.house.gov/Documents/20040607092010-21572.pdf.
[993].
Ibid.
[994]. Letter from the Honorable
John Conyers, Jr., Ranking Member, Committee on the Judiciary, to President
George W. Bush (December 7, 2005).
[995].
Ibid.
[996]. Letter from the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee, et al., to the
Honorable F. James Sensenbrenner, Jr., Chairman, House Judiciary Committee
(October 30, 2003), available at
http://www.house.gov/judiciary_democrats/cialeakltr103003.pdf.
[997]. Letter from the Honorable
John Conyers, Jr., Ranking Member, House Judiciary Committee, et al., to the
Honorable F. James Sensenbrenner, Jr., Chairman, Committee on the Judiciary
(July 14, 2005), available at
http://www.house.gov/judiciary_democrats/letters/rovehrgrequestltr71405.pdf.
[998]. Letter from the Honorable
Henry Waxman, Ranking Member, House Committee on Government Reform, to the
Honorable Tom Davis, Chairman, House Committee on Government Reform (September
29, 2003), available at
http://www.democrats.reform.house.gov/Documents/20040607092402-66614.pdf.
[999]. Letter from the Honorable
Henry Waxman, Ranking Member, House Committee on Government Reform, to the
Honorable Tom Davis, Chairman, House Committee on Government Reform (October 8,
2003).
[1000]. Letter from the Honorable
Henry Waxman, Ranking Member, House Committee on Government Reform, to the
Honorable Tom Davis, Chairman, House Committee on Government Reform (December
11, 2003), available at
http://www.democrats.reform.house.gov/Documents/20040607092233-06397.pdf.
[1001]. Letter from the Honorable
Henry Waxman, Ranking Member, House Committee on Government Reform, to the
Honorable Tom Davis, Chairman, House Committee on Government Reform (July 11,
2005), available at
http://www.democrats.reform.house.gov/Documents/20050711131514-97754.pdf.
[1002]. Letter from the Honorable
Henry Waxman, Ranking Member, House Committee on Government Reform, to the
Honorable Tom Davis, Chairman, House Committee on Government Reform (October 28,
2005), available at
http://www.democrats.reform.house.gov/Documents/20051028172902-79173.pdf.
[1003]. Letter from the Honorable
Henry Waxman, Ranking Member, House Committee on Government Reform, to the
Honorable Tom Davis, Chairman, House Committee on Government Reform (November
16, 2005), available at
http://www.democrats.reform.house.gov/Documents/20051116181144-65736.pdf.
[1004]. Letter from the Honorable
Henry Waxman, Ranking Member, House Committee on Government Reform, to the
Honorable Tom Davis, Chairman, House Committee on Government Reform (May 11,
2004), available at
http://www.democrats.reform.house.gov/Documents/20040607093652-55156.pdf.
[1005]. Letter to from the
Honorable Henry Waxman, Ranking Member, House Committee on Government Reform, to
the Honorable Tom Davis, Chairman, House Committee on Government Reform
(November 30, 2005), available at
http://www.democrats.reform.house.gov/Documents/20051130143916-94287.pdf.
[1006]H.R. 420, 109th Cong.
(2005); H. Res. 417, 109th Cong. (2005); H. Res. 418, 109th Cong. (2005) and H.
Res. 419, 109th Cong. (2005).
[1007]. H.R. Rep. No. 109-230 at
7 (2005).
[1008]. Ibid. at 28 (2005)
(Dissenting Views). For example, in 1997, the Committee held hearings on
campaign improprieties in the 1996 presidential election. See Oversight of the
Department of Justice: Hearing Before the House Comm. on the Judiciary, 105th
Cong., 1st Sess. (1997). In 1995,
the Subcommittee on Crime heard several days of testimony as part of a
congressional investigation into federal actions at
[1009]. President Addresses
American Society of Newspaper Editors Convention (Apr. 14, 2005), available
at http://www.whitehouse.gov/news/releases/2005/04/20050414-4.html.
[1010]. H.R. 2975, 107th Cong.,
2d Sess. (2001).
[1011]. H.R. Rep. No. 236, 107th
Cong., 2d Sess. (2001).
[1012].
Uniting and Strengthening
[1013]. Patriot Act, §213. Warrants authorizing these secret
searches no longer require, as they did in some circuit courts, that notice be
given within seven days after the secret search. Instead, an undefined “reasonable time”
is the new standard.
[1014]. Patriot Act, §215. Before the PATRIOT Act, these requests
were required to be directed to “agents of a foreign power,” under the Act they
can now be used against anyone, based only on a minimum standard of
relevance.
[1015]. Patriot Act, §505. Before the PATRIOT Act, these requests
were required to be directed to “agents of a foreign power,” under the Act they
can now be used against anyone, based only on a minimum standard of
“relevance.”
[1016]. Patriot Act, §§ 411,
805. Section 411 was written to
apply retroactively, so it covers donations made before the law was passed. Section 805 expanded the offense of providing
material support for terrorist activities and organizations. In general, “material support” is
defined as financial resources, expert advice or assistance, assets, housing,
personnel, training, or communications equipment. 18 U.S.C. § 2339A. This statute’s definition of ‘material
support or resources’ also is used to prohibit the provision of material support
or resources to foreign terrorist organizations under section 2339B of title
18. Section 805 added the terms
“expert advice and assistance” to this list.
[1017]. A
[1018]. The Ninth Circuit found
that the PATRIOT Act attributes “the intent to commit unlawful acts punishable
by life imprisonment to persons who acted with innocent intent” and that “the
terms ‘personnel’ and ‘training’ are void for vagueness under the First and
Fifth Amendments because they bring within their ambit constitutionally
protected speech and advocacy.” Humanitarian Law Project v. United States DOJ,
352 F.3d 382, 397, 403 (9th Cir. 2003).
In 2004, Congress amended the law to specify that “training” was limited
to “instruction or teaching designed to impart a specific skill, as opposed to
general knowledge,” that “expert advice or assistance” was meant to encompass
“scientific, technical, or other specialized knowledge;” and to add “services”
to the list of prohibited activities. Intelligence Reform and Terrorism
Prevention Act of 2004, Pub. L. No. 108-458, § 6603, 118 Stat. 3638, 3763. The District Court reviewed the new
language in 2005 and found that these terms continued to be unconstitutionally vague, finding,
for example, that statute leaves “the term ‘training’ impermissibly vague
because it easily encompasses protected speech and advocacy, such as teaching
international law for peacemaking resolutions or how to petition the United
Nations to seek redress for human rights violations.” Humanitarian Law Project v. Ashcroft,
380 F. Supp. 2d 1134, 1150 (C.D. Cal. 2005).
[1019].
[1020]. A June 2003 report by the
DOJ Inspector General reported “significant problems in the way the detainees
were handled,” that officers “slammed detainees against the wall, twisted their
arms and hands in painful ways, stepped on their leg restraint chains, and
punished them by keeping them restrained for long periods of time,” all of which
was captured on videotape. Despite being seen on videotape, these officers
denied any involvement upon the Inspector General inquiry. The Inspector General also found that
government employees had engaged in a “pattern of physical and verbal abuse,”
and found that detainees were held in lock downs 23 hours per day with lights
constantly on in their cells. Some
detainees were found to have been thrown against the wall naked and subjected to
such verbal taunts as “you’re going to die here” and “you will feel pain.” Office of
[1021]. The California State
Senate Office of Research found that the National Security Entry-Exit
Registration System (NSEERs) program did not identify any terrorists. California State Senate Office of
Research, The Patriot Act, Other Post 9/11 Enforcement Powers and The Impact on
California’s Muslim Communities 23 (2004).: “No suspected connection to terrorism
formed the criteria for sanctions ... the government...used national origin as a
proxy for evidence of dangerousness” Id. at 21 (2004). With regard to the Department’s
“voluntary interrogation program,” the GAO found the program to be of no
intelligence value, and that the information gathered from the interviews sits
in federal databases without any specific plans for use, finding: “[n]one of the law enforcement officials
with whom [the GAO] spoke could provide examples of investigative leads that
resulted from the project.” U.S.
Gen. Accounting Office, Homeland Security: Justice Department's Project to
Interview Aliens After September 11, 2001 16 (2003). The GAO further found that even though
the Department’s guidelines specified that the interviewees were to be sources
of information, not suspects, they were routinely asked incriminating
questions. Finally, the GAO found
that according to some law enforcement officials, the interviews negatively
affected relations with the Arab community, observing, “Federal law enforcement
officials at ... districts we visited expressed the view that the interview
project had a negative effect on relations between the Arab community and law
enforcement personnel.” Concerning
the Department’s investigation and detention of Brandon Mayfield, a
Muslim-American attorney wrongfully detained by the FBI in connection with the
Madrid, Spain bombings in March 2004, a January 2006 report issued by the
Department of Justice Inspector General found that not only were the FBI
fingerprint examiners reckless in their duties, but “that Mayfield’s [legal]
representation of a convicted terrorist and other facts developed during the
field investigation, including his Muslim religion, also likely contributed to
the examiners’ failure to sufficiently reconsider the identification after
legitimate questions were raised.”
Office of the Inspector General, U.S. Dep’t of Justice, A Review of the
FBI’s Handling of the Brandon Mayfield Case 12 (Jan. 2006) (hereinafter OIG
Mayfield Report).
[1022]. The White House, press
release, President Issues Military Order (Nov. 13, 2001), available at
http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html. In 2004, the Supreme Court overruled
part of the military commission orders and held that military detainees have the
right to challenge their detentions in federal courts. Rasul v. Bush, 542
[1023].
Neil A. Lewis, “Traces of Terror: The Inquiry; Ashcroft Permits F.B.I. to
Monitor Internet and Public Activities”, The New York Times, May 31, 2002, at
A20. The new guidelines authorize
the collection and use of information from databases either public, commercial
or non-profit, otherwise known as “data mining.” Agents are also authorized to “attend
any place or event” or “conduct research including online research, accessing
online sites and forums.” The
guidelines declare that files kept as a result of new investigations are not
subject to the protections of the Privacy Act.
[1024].
William Safire, “J. Edgar Mueller”, The
New York Times, June 3, 2002, at A15.
[1025].
In March 2006, The Washington Post reported, “[a]n FBI report from November 2002
indicates that an agent photographed members from the
[1026]. A November 2002 The
Washington Post article identified 44 material witnesses and found that almost
half of them never testified before a grand jury. Steven Fainaru & Margot Williams,
“Material Witness Law has Many in Limbo; Nearly Half Held in War on Terror
Haven’t Testified”, The Washington
Post, Nov. 24, 2002, at A1. In
June 2005, Human Rights Watch and the American Civil Liberties Union released a
detailed report identifying 70 individuals detained pursuant to the material
witness law, with “[a]ll but one [being] Muslim by birth or conversion [and]
[a]ll but two were of Middle Eastern, African, or South Asian descent or
African-American.” Human Rights
Watch & American Civil Liberties Union, Witness to Abuse: Human Rights
Abuses Under the Material Witness Law Since September 11 at 16 (2005) The Report also found that of these 70
cases, 42 suspects never faced any charges, and only seven faced any
terrorism-related charges, and that more than one-third of the suspects were
jailed for two months or longer, often in solitary confinement.
[1027]. John Conyers, “Two
Unpatriotic Acts: Don’t Let Troops Come Home to a Nation That Destroys Civil
Liberties”, Legal Times, April 14,
2003. As a result of the public
outcry, the Administration opted not to introduce the
legislation.
[1028]. Charlie Savage, “Bush
Challenges Hundreds of Law: President Cites Powers of his Office”,
[1029]. Charlie Savage, “Bush
Challenges Hundreds of Law: President Cites Powers of his Office”,
[1030]. Charlie Savage, “Bush
Challenges Hundreds of Law: President Cites Powers of his Office”,
[1031]. James Risen & Eric
Lichtblau, “Bush Lets
[1032]. Foreign Intelligence
Surveillance Act of 1978, Pub. L. 95-511, Title I, 92 Stat. 1796 (Oct. 25, 1978)
codified as amended.
[1033]. The Fourth Amendment
provides “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.” U.S. Const. amend. IV. It remains unclear when the domestic
spying program was initiated.
According to President Bush in his December 17, 2005 radio address, the
program began “in the weeks following the terrorist attacks on [the
[1034]. James Risen & Eric
Lichtblau, “Bush Lets
[1035].
James Risen & Eric Lichtblau, “Spy Agency Mined Vast Data Trove, Officials
Report”, The New York Times, Dec. 23,
2005, at A1. According to a former
technology manager at one of the major telecommunications companies, the “data
is mined with the cooperation of the government and [then] shared with [the
government].” It is unclear is
what, if anything, the Bush Administration is doing with the massive amounts of
unused data generated by the domestic spying program. According to a national security lawyer
who represents a participant in the program, staff is becoming increasingly
“uncomfortable with the mountain of data they have now begun to accumulate,”
including so-called “non-threatening
[1036]. Attorney General Alberto
Gonzales and Principal Deputy Director for National Intelligence General Michael
Hayden, Press Briefing (Gonzales and Hayden Press Briefing) (Dec. 19, 2005),
available at www.whitehouse.gov/news/releases/2005/12/20051219-1.html. Various members of the Administration,
including the President, have omitted the Attorney General’s caveats at various
times, asserting, for example, that the only communications being intercepted
were “communications, back and forth, from within the United States to overseas
with members of Al Qaeda.”
[1037]. General Michael Hayden,
Principal Deputy Director for National Intelligence, Press Briefing (Hayden
Press Briefing) (Dec. 19, 2005), available at
http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html.
[1038]. Hayden Press Briefing
(Dec. 19, 2005). Because the
judgement is made “without the burden of obtaining warrants,” General Hayden
conceded that the NSA Program has used a “quicker trigger” and “a subtly softer
trigger” when it decides to target someone than is required to be made under
FISA. “Charlie Savage, Wiretaps
Said to Sift All Overseas Contacts Vast US Effort Seen on Eavesdropping”, The
[1039]. Daniel Klaidman, Stuart
Taylor Jr., & Evan Thomas, “Palace Revolt”, Newsweek, Feb 6, 2006, at 34.
[1040]. Evan Thomas and Daniel
Klaidman, “Full Speed Ahead”, Newsweek, Jan. 9, 2006, at
22.
[1041]. Evan Thomas and Daniel
Klaidman, “Full Speed Ahead”, Newsweek, Jan. 9, 2006, at 22.
[1042]. James Risen and Eric
Lichtblau, “Bush Secretly Lifted Some Limits on Spying in
[1043]. Carol D. Leonnig,
“
[1044]. Ibid.
[1045]. Ibid.
[1046]. Ibid.
[1047]. Carol D. Leonnig,
“
[1048]. Letter from William E.
Moschella, Assistant Attorney General, U.S. DOJ, to the Honorable Pat Roberts,
Chairman Senate Select Committee on Intelligence, the Honorable John D.
Rockefeller, IV, Vice Chairman, Senate Select Committee on Intelligence, et. al.(Dec. 22,
2005).
[1049]. U.S. Department of
Justice, Legal Authorities Supporting the Activities of the National Security
Agency Described by the President (White Paper) (Jan. 19, 2006), available at
http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf.
[1050]. U.S. Department of
Justice memorandum, Myth v Fact (Jan 27, 2006), available at http://releases.usnewswire.com/printing.asp?id=59973. On February 9, 2006, President
Bush held a special press conference to declare how effective their
anti-terrorism efforts have been, claiming that they used the program to disrupt
a plot to fly hijacked planes into Los Angeles’s Library Tower (now known as the
U.S. Bank Tower). Peter Baker
and Dan Eggan, “Bush Details 2002 Plot to
[1051].
Wartime Executive Power and the NSA’s
Surveillance Authority: Hearing before the Senate Judiciary Committee,
109th Cong. (2006) (statement of Senator Arlen Specter). Numerous government officials who are
familiar with the warrantless surveillance program consider it to be “unlawful
and possibly unconstitutional, amounting to an improper search.” James Risen & Eric Lichtblau, “Bush
Lets
[1052]. Dan Eggen & Walter
Pincus, “Ex-Justice Lawyer Rips Case for Spying”, The
[1053]. Mark Hosenball, “Spying:
Giving Out
[1054]. Newsweek reported, “the
Senate intelligence committee's chairman, Pat Roberts, and its top Democrat, Jay
Rockefeller, got a closed-door briefing on Bolton's NSA dealings from the deputy
intel czar, Gen. Michael Hayden … Rockefeller complained that Bolton sought out
a State Department official whose name was supplied by the NSA ‘to congratulate
him’—for unspecified reasons—which . . . was ‘not in keeping’ with Bolton's
request for the uncensored NSA report.”
Mark Hosenball, “
[1055]. Leslie Cauley, “NSA Has
Massive Database of Americans’ Phone Calls”,
[1056]. Leslie Cauley, “NSA Has
Massive Database of Americans’ Phone Calls”,
[1057]. Leslie Cauley, “NSA Has
Massive Database of Americans’ Phone Calls”,
[1058]. Leslie Cauley, “NSA Has
Massive Database of Americans’ Phone Calls”,
[1059]. Leslie Cauley, “NSA Has
Massive Database of Americans’ Phone Calls”,
[1060]. Barton Gellman and Arshad
Mohmmed, “Data on Phone Calls Monitored: Extent of Administration’s Domestic
Surveillance Decried in Both Parties”, The Washington Post, May 12, 2006 at
A1.
[1061]. John Markoff, “Questions
Raised for Phone Giants in Spy Data Furor”, The New York Times, May 13, 2006 at
A1. The Qwest statement provided:
“Mr. Nacchio [the then CEO] made inquiry as to whether a warrant or other legal
process had been secured in support of that request. When he learned that no such authority
had been granted, and that there was a disinclination on the part of the
authorities to use any legal process,” he determined the requests were unlawful
and refused to comply.”
[1062]. Eric Lichtblau and Scott
Shane, “Bush is Pressed Over New Report on Surveillance”, The New York Times, May 12, 2006 at
A1.
[1063]. Karen Tumulty, “Inside
Bush’s Secret Spy Net: Your phone records have been enlisted in the war on
terrorism. Should that make you
worry more or less?”, Time Magazine,
May 14. 2006 at 32.
[1064].
[1065]. Robert Schmidt and
Nicholas Johnston, “NSA Collected Phone Records in the
[1066]. NewsHour with Jim Lehrer:
NSA Wire Tapping Program Revealed (PBS television broadcast, May 11, 2006) available at
http://www.pbs.org/newshour/bb/law/jan-june06/nsa_05-11.html.
[1067]. In a May 21 appearance on
ABC’s “This Week,” Attorney General Gonzales indicated that the Justice
Department would go so far as to actually prosecute those newspapers which
disclosed the illegal NSA programs.
When asked if journalists could be prosecuted for such actions, he
stated, “[t]here are some statutes on the book which, if you read the language
carefully, would seem to indicate that it is a possibility” and “[w]e have an
obligation to enforce those laws.” Ed O’Keefe, “Alberto Gonzales: Build the
Wall”, ABC News, May 21,
2006.
[1068]. Letter from Randal S.
Milch, Senior Vice President and General Counsel at Verizon Business to
Congressman John Conyers (Feb. 17, 2006). Letter from
Marc Gary, Executive Vice President and General Counsel at
[1069]. Ken Belson and Matt
Richtel, “Verizon Denies Turning Over Local Phone Data”, The New York Times, May 17, 2006.
[1070]. Arshad Mohammed,
“BellSouth Wants Story Retractions”, The
[1071]. Peter Svensson, “Verizon:
The NSA didn’t ask us for records”, Business Week, May 16,
2006.
[1072]. Greg Sargent, “New
Presidential Memorandum Permits Intelligence Director to Authorize Telcos to Lie
without Violating Security Laws”, Think
Progress, May 17, 2006, available at
http://thinkprogress.org/2006/05/17/new-executive-order/.
[1073]. Cameron: “Democrats
complaining about the NSA programs” without knowing all the details “is
precisely why Republicans say Democrats just aren’t serious about security,”
Media Matters, May 15, 2006, available
at http://mediamatters.org/items/200605150001.
[1074]. Leslie Cauley, “NSA Has
Massive Database of Americans’ Phone Calls”,
[1075]. Despite bipartisan outcry
over NSA phone call database, CNN’s Henry said, “Democrats obviously are already
pouncing on this” Media Matters, May 11, 2006, available at
http://mediamatters.org/items/200605110009.
[1076]. In May 2003, Amnesty
International stated in its annual report that the Bush Administration’s
treatment of foreign nationals and Guantanamo Bay was a “human rights scandal”
and that their actions in that regard, “far from making the world a safer place,
has made it more dangerous by curtailing human rights, undermining the rule of
international law and shielding governments from scrutiny.” Amnesty
International, Report 2003: Counter-terrorism and Human Rights, available at
http://web.amnesty.org/report2003/index-eng. These abuse would appear to stem, at
least in part, from a series of controversial legal opinions issued by the
Department of Justice which provided that 1) the Geneva Conventions and other
international laws banning torture did not apply to our detainees, 2) if they
did, they could be construed so narrowly that events such as those at Abu Ghraib
are not legally “torture,” and 3) even if those acts could be defined as
“torture,” the Administration and its military are not liable under the
President’s Commander-in-chief authority and other
defenses.
[1077]. In its June 2004 decision
in Hamdi v. Rumsfeld, the Supreme Court held that the more than 600 detainees at
[1078]. Mr. Padilla was arrested
at O'Hare International Airport in May 2002 and President Bush later declared
Padilla an enemy combatant. For
three years, the Administration claimed he posed such a grave threat that it had
the right to detain him without trial as an enemy combatant. His case made its way up to the Supreme
Court in Rumsfeld v. Padilla, but the Court dismissed the case on procedural
grounds. Rather than risk a
substantive review of its policy by the Supreme Court, the Administration
indicted Mr. Padilla on comparatively minor criminal charges. When the
Administration asked the 4th Circuit Court for permission to transfer Padilla
from military custody to jail, the once-cooperative court flatly refused,
expressing amazement that the Administration suddenly would decide Mr. Padilla
could be treated like a common purse snatcher - a reversal that, they said,
comes "at substantial cost to the government's credibility." See Jerry Markon, “Justices Order
Padilla Terror Case Moved to
[1079]. Perhaps the most
notorious case of extraordinary rendition by the Bush Administration involved
Maher Arar who was detained by the INS during a layover at JFK airport in
[1080]. On November 2, 2005, The
Washington Post reported that the CIA has been conducting interrogations of
al-Qaeda captives in secret prisons in
[1081].
An FBI agent corroborated that no actionable intelligence is being gathered
through abuse at
[1082]. Charles Babington,
“Activists on the Right, GOP Lawmakers Divided on Spying; Privacy Concerns,
Terror Fight at Odds”, The
[1083]. The operative provision
of the AUMF provides “the President is authorized to use all necessary and
appropriate force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks of September 11,
2001, or harbored such organizations or persons, in order to prevent any future
acts of international terrorism against the United States by such nations,
organizations or persons.” 115 Stat. 224(2)(a)
(2001).
[1084]. White Paper at 12. In
emphasizing the “at home” language, the Administration explains, “[t]o take
action against those linked to the September 11th attacks involves taking action
against individuals within the
[1085]. 542
[1086]. White Paper at
2.
[1087]. Letter from the Honorable
William E. Moschella, Assistant Attorney General, to the Honorable Pat Roberts,
Chairman, Senate Select Committee on Intelligence, the Honorable John D.
Rockefeller, IV, Vice Chairman, Senate Select Committee on Intelligence, et al.
(Dec. 22, 2005).
[1088]. Ibid.
[1089]. White Paper at 28.
[1090]. Tom Daschle, “Power We
Didn’t Grant”, The
[1091]. Tom Daschle, “Power We
Didn’t Grant”, The
[1092].
Scott Rothschild, “Senator: Bush’s Spying Raises Serious Concerns”, Lawrence Journal-World, Dec. 24, 2005,
available at
http://www2.ljworld.com/news/2005/dec/24/senator_bushs_spying_raises_concerns/?city_local.
[1093]. Senate NSA Hearing (Sen.
Arlen Specter, Chairman, Senate Judiciary Committee).
[1094]. Senate NSA Hearing (Sen.
Lindsey Graham, Senate Judiciary Committee).
[1095]. Susan Page, “Bush’s
Defense of Domestic Spying Meets Skepticism”, USA Today, Dec. 21, 2005 at
6A.
[1096]. CRS Memo at 44.
[1097]. Indeed, it would be odd
if the AUMF was to be interpreted as giving the Administration greater legal
authority than an actual declaration of war, as under FISA, war time warrantless
surveillance is limited to 15 days. 50 U.S.C. § 1811 (1978).
[1098]. Gonzales and Hayden Press
Briefing (Dec. 19, 2005).
[1099]. George F. Will, “No
Checks, Many Imbalances”, The
[1100]. When asked at the Senate
Judiciary Committee whether the Administration raised the idea of amending FISA
with any Members of the Committee, Attorney General Gonzales responded, “I have
no personal knowledge that anyone on this Committee was told.” Senate NSA Hearing (testimony of
Attorney General Alberto Gonzales).
[1101]. At his confirmation
hearing, General Hayden acknowledged that he “did not recall any substantive
discussion about the Congressional authorization in September 2001 to use all
necessary force against Al Qaeda.”
Erich Lichtblau, “Nominee Says N.S.A. Stayed Within Law on Wiretaps”, The New York Times, May 19, 2006,
A20.
[1102]. In 2003, the
Administration proposed a draft “PATRIOT II” bill, which would have among other
things, changed current law authorizing wartime warrantless surveillance for up
to 15 days without court approval, to “allow the wartime exception to be invoked
after Congress authorizes the use of military force, or after the
[1103]. In June 2002, Senator
Dewine, offered legislation that would have permitted “reasonable suspicion”
rather than “probable cause” to serve as the standard for obtaining surveillance
warrants for non-US citizens believed to be connected to terrorism (S. 2659,
107th Cong. (2002); however, the Bush Administration objected, asserting the
proposal raised “both significant legal and practical issues.” Hearing on
Proposals to Amend the Foreign Intelligence Surveillance Act of 1978, Before the
S. Select Comm. on Intelligence, 107th Cong. (2002) (testimony of James A.
Baker).
[1104]. 542
[1105]. 542
[1106]. Tribe Letter (emphasis in
original). The Bush
Administration’s contention on this point is also undercut by a legal memorandum
prepared by 14 legal experts and former government officials, including
President Reagan’s FBI Director, William S. Sessions and prominent conservative
legal scholar, William Van Alstyne which concludes, “[i]t is one thing, however,
to say that foreign battlefield capture of enemy combatants is an incident of
waging war that Congress intended to authorize. It is another matter entirely to treat
unchecked, warrantless domestic spying as included in that authorization,
especially where an existing statute specifies that other laws are the
‘exclusive means’ by which electronic surveillance may be conducted.” Letter from Beth Nolan, Curtis Bradley,
David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H.
Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin,
Walter Dellinger, William S. Sessions, and William Van Alstyne to Members of
Congress (Legal Scholar Letter)
(Jan. 9, 2005). The Congressional
Research Service has contradicted the Bush Administration’s legal justifications
for the domestic spying program, concluding, among other things, “[t]here is reason, however, to limit
Hamdi to actual military operations on the battlefield as that concept is
traditionally understood.” CRS Memo
at 34.
[1107]. White Paper at
22.
[1108]. H. Conf. Rep. 95-1720, at
33.
[1109]. CRS Memo at
40.
[1110].
In the White Paper, the Bush Administration was somewhat dismissive of clear
congressional intent, noting “some Members of Congress believed that any such
authorization would come in the form of a particularized amendment to FISA
itself.” White Paper at
26. The Administration failed to
note that “some Members” came in the form of the Committee Report filed by the
House Intelligence Committee, which was most responsible for writing the
legislation.
[1111]. Democratic Briefing on
the “Constitution in Crisis: Domestic Surveillance and Executive Power,” Before
the H. Comm. on the Judiciary, 109th Cong. (2006) (statement of Prof. Jonathan
Turley). The Congressional Research
Service also concluded, “[a]lthough section 109(a) of FISA does not explicitly
limit the language “as authorized by statute” to refer only to Title III and to
FISA, the legislative history suggests that such a result was intended.” CRS
Memo at 43.
[1112]. J.E.M. Ag. Supply v.
Pioneer Hi-Bred, 534
[1113].
[1114]. Morales v. TWA, 504
[1115]. Legal Scholar Letter
(Jan. 9, 2005).
[1116]. US Attorney General
Alberto Gonzales, Prepared Remarks for Attorney General Alberto R. Gonzales at
the
[1117]. The Federalist No. 23
(Alexander Hamilton); White Paper at 7.
[1118]. Attorney General Alberto
Gonzales remarks (Jan 24, 2006), available at http://www.usdoj.gov/ag/speeches/2006/ag_speech_0601241.html. It is
instructive to note that the Administration did not point to the warrantless
wiretapping engaged in by the Nixon Administration or their efforts to rely on
inherent executive authority, however the Supreme Court did reject President
Nixon’s assertion of such authority to enjoin the publication of the Pentagon
Papers. See New York Times v.
Sullivan, 376
[1119]. 343
[1120]. 343
[1121]. 310 F.3d 717, 742. See White Paper at
8.
[1122].
[1123]. Benjamin Franklin,
Pennsylvania Assembly: Reply to the Governor (Nov. 11, 1755), reprinted in The
Papers of Benjamin Franklin 242 (Leonard W. Labaree, ed., Yale Univ. Press)
(1963).
[1124]. James Madison, Letters of
Helvidius, no. 1 (Aug. 24 - Sept. 14, 1793).
[1125]. Federalist 23 states,
“[t]he necessity of the Constitution, at least equally energetic with the one
proposed, to the preservation of the
[1126]. The Federalist No. 47
(James Madison).
[1127]. Wartime Executive Power
and the NSA's Surveillance Authority (Part II): Hearing before the S. Comm. on
the Judiciary, 109th Cong. (2006) (testimony of Harold Hongju Koh, Dean,
[1128]. 389
[1129]. 50 U.S.C. §§ 1801 et.
seq.
[1130]. Democratic Briefing on
the “Constitution in Crisis: Domestic Surveillance and Executive Power,” Before
the H. Comm. on the Judiciary, 109th Cong. (2006) (statement of Prof. Jonathan
Turley).
[1131]. 343
[1132]. 343 U.S 579, 637-640
(1952); see also Legal Scholar Letter (Jan. 9, 2005). As Justice Frankfurter articulated,
“[i]t is one thing to draw an intention of Congress from general language and to
say that Congress would have explicitly written what is inferred, where Congress
has not addressed itself to a specific situation. It is quite impossible, however, when
Congress did specifically address itself to a problem, as Congress did to that
of seizure, to find secreted in the interstices of legislation the very grant of
power which Congress consciously withheld.
To find authority so explicitly withheld is . . . to disrespect the whole
legislative process and the constitutional division of authority between
President and Congress.” 343
[1133]. As Professor Tribe
observed, “an unchecked presidential program of secretly recording the
conversations of perhaps thousands of innocent private citizens in the
[1134]. Congress refused to enact
language proposed by the Ford administration that: “[n]othing contained in this
chapter shall limit the constitutional power of the President to order
electronic surveillance for the reasons stated in section 2511(3) of title 18,
United States Code.” 94th Cong. 2d Sess, § 2528 (Mar. 23, 1976), reprinted in
Hearings on S. 743, S. 1998, S. 3197 Before the Subcomm. On Criminal Laws and
Procedures of the Senate Judiciary Comm., 94th Cong., 2d Sess. 134 (1976)
(stating in the first page of the report that S. 3197 was identical to the
measure transmitted to the Senate by the President on March 23,
1976).
[1135]. The repealed provision
provides: “Nothing contained in this chapter or in section 605 of the
Communications Act of 1934 shall limit the constitutional power of the President
to take such measures as he deems necessary to protect the Nation against actual
or potential attack or other hostile acts of a foreign power, to obtain foreign
intelligence information deemed essential to the security of the United States,
or to protect national security information against foreign intelligence
activities. Nor shall anything
contained in this chapter be deemed to limit the constitutional power of the
President to take such measures as he deems necessary to protect the
[1136]. H.R. Rep. No. 95-1283,
pt. 1, at 24 (1978).
[1137]. S. Rep. No. 95-604, pt.
I, at 6 (1978) (emphasis added). To
eliminate any doubt concerning the legislative intent, the Senate Report
concludes that FISA was “designed . . . to curb the practice by which the
Executive Branch may conduct warrantless electronic surveillance on its own
unilateral determination that national security justifies it.” Ibid. at 8. When it comes to electronic surveillance
covered by FISA, “the Congress has declared that this statute, not any claimed
presidential power, controls.”
[1138].Joint Explanatory
Statement of the Committee of the Conference, House Conference Rep. No. 95-1720,
35 (Oct. 5, 1978) (emphasis added).
The Report further stated, “[t]he Senate Bill provided that the
procedures in this bill and in Chapter 119 of Title 18, United States Code,
shall be the exclusive means by which electronic surveillance, as defined in
this bill, and the interception of domestic wire and oral communications may be
conducted. The House amendments
provided that the procedures in this bill and in Chapter 119 of Title 18, U.S.C.
shall be the exclusive statutory means by which electronic surveillance as
defined in this bill and the interception of domestic wire and oral
communications may be conducted.
The Conference substitute adopts the Senate provision which omits the
word “statutory” . . . . The
conferees agree that the establishment by this act of exclusive means by which
the President may conduct electronic surveillance does not foreclose a different
decision by the Supreme Court.”
[1139]. The White Paper notes
while FISA was being debated during the Carter Administration, Attorney General
Griffin Bell testified that “the current bill recognizes no inherent power of
the President to conduct electronic surveillance, and I want to interpolate here
to say that this does not take away the power [of] the President under the
Constitution.” White Paper at 8.
[1140]. Foreign Intelligence
Electronic Surveillance Act of 1978: Hearings on H.R. 5764, Congressional
Hearing on H.R. 9745, H.R. 7308, and H.R. 5632, Before the Subcomm. on
Legislation of the H. Comm. on Intelligence, 95th Cong. (1978) (statement of Attorney General Griffin Bell)
(emphasis added). During the House
Hearings, John M. Harmon, the Assistant Attorney General, Office of Legal
Counsel, admitted that “it seems unreasonable to conclude that Congress, in the
exercise of its powers in this area, may not vest in the courts the authority
intelligence surveillance.” Also,
when President Carter signed FISA into law, he specifically acknowledged that
the law requires “a prior judicial warrant for all electronic surveillance for
foreign intelligence or counterintelligence purposes in the
[1141]. In re Sealed Case, 310
F.3d at 746.
[1142]. In Truong, the court
found that pre-FISA, judicial review of warrants of foreign surveillance was not
appropriate because of the desire to avoid undue delay, the need for secrecy,
the competence of the judiciary, and sensitivity to separation of powers. 629
F.2d at 914. All of these concerns
have been addressed and incorporated in the FISA law – emergency surveillance is
permitted; the proceedings are secret; special judges have been chosen; and
Congress has enacted procedures which balance the separation of powers. In Butenko, 494 F.2d 593 (3rd Cir.
1974), cert. denied sub nom. Ivanov v. United States, 419 U.S. 881 (1974), while
the court held that warrantless electronic surveillance of foreign nationals was
lawful, it stated that it would be unlawful if the interception were to be
conducted on a domestic group for law enforcement purposes. 494 F.2d at 606. In Brown, 484 F.2d 418, 426
(1973), the Court also recognized
the legality of a challenged warrantless wiretap for the purpose of gathering
foreign intelligence, but in so doing partially relied upon since repealed
statutory language indicating congressional intent to defer to the President on
these matters. Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 2511(3) (1968)
(provision repealed).
[1143]. CRS Memo at 32. The fourth pre-FISA circuit court
decision to address this decision, Zweibon v. Mitchell, firmly rejected the idea of warrantless
surveillance. 516 F.2d 594 (D.C.
Cir. 1975) (en banc).
[1144].The
two seminal Supreme Court precedents in this area make it clear that widespread
domestic surveillance necessitates a judicially approved warrant. In Katz v. U.S., 389 U.S. 347 (1967),
the only instance in which the Supreme Court considered the issue of national
security wiretaps, the Court held that the Fourth Amendment requires adherence
to judicial processes, and searches conducted outside the judicial process, are
per se unreasonable under the Fourth Amendment, subject only to a few
specifically established and well-delineated exceptions. In United States v. United States
District Court (the Keith case), 407 U.S. 297 (1972), the Court specifically
held that, in the case of intelligence gathering involving domestic security
surveillance, prior judicial approval was required to satisfy the Fourth
Amendment. Ibid. at 313-14, 317, 319-20. The Court stated: “These Fourth
Amendment freedoms cannot properly be guaranteed if domestic security
surveillances may be conducted solely within the discretion of the Executive
Branch.” Ibid. at
317-18.
[1145]. White Paper at
37.
[1146]. See In re Sealed Case,
310 F.3d 717 (Foreign Intel. Surv.
[1147]. In re Sealed Case merely
represents the principle that before FISA was enacted, the President had
inherent authority to engage in certain foreign intelligence surveillance, since
that time, of course, Congress has enacted in the form of FISA an entire
statutory framework governing surveillance activities. See 310 F.3d 717 (Foreign Intel. Surv.
[1148]. Tribe Letter. Professor Tribe has written, the
wiretapping scheme that the Administration employs is “so indiscriminate and
sweeping” in its intrusion into American citizens’ private communications that
no balancing test can save it from violating those rights protected by the
Fourth Amendment to be secure against unreasonable searches and seizures. Professor Tribe argues that this is
especially so when the scheme is administered by one branch of government
without adequate checks on that power.
This applies even when such activity may be a constitutional power
entrusted to the President by Article II or delegated to the President by
Congress in exercising its powers by Article I.
[1149]. Senate NSA Hearing
(testimony of Attorney General Alberto Gonzales).
[1150]. Jeffrey Rosen, “Alberto
Gonzales’s Spin”, The New Republic
Online, Feb. 27, 2006, available
at http://www.tnr.com/doc.mhtml?i=20060227&s=rosen022706.
[1151]. Woods has stated that the
lower reasonable basis standard “in my mind, is a much more likely reason why
they maintained this [surveillance program].” Richard B. Schmitt and David G. Savage,
“Legal Test Was Seen as Hurdle to Spying; Some Say the Court’s Tougher Standard
of ‘Probable Cause’ Led to the Surveillance Order”, Los Angeles Times, Dec. 20, 2005, at
A1.
[1152]. Barton Gellman, Dafna
Linzer, & Carol D. Leonnig, “Surveillance Net Yields Few Suspects”, The
[1153]. Ibid.
[1154]. Ibid.
[1155]. Ibid.
[1156]. Ibid.
[1157]. Ibid.
[1158]. As the non-partisan
Congressional Research Service wrote, the actions by the telecommunications
companies may well “expose the telephone companies to ... civil remedies or criminal
sanctions.” Elizabeth B. Bazan,
Gina Marie Stevens, and Brian T. Yeh, Legislative Attorneys, American Law
Division, Government Access to Phone Calling Activity and Related Records: Legal
Authorities, Congressional Research Service Memorandum (May 17,2006) at
1.
[1159]. 18 U.S.C. § 2702 et seq.
(2006). A cause of action lies for violation of this law and damages of up to
$1000 per violation can be assessed against the guilty party as well as attorney’s fees and punitive damages in
certain circumstances.
[1160]. 18 U.S.C. § 2702(c)(1)
(2006).
[1161]. 18 U.S.C. §§ 2702(c)(1)
& 2709
(2006).
[1162]. 18 U.S.C. § 2702(c)(2)
(2006).
[1163]. 18 U.S.C. § 2702(c)(3)
(2006).
[1164]. 18 U.S.C. § 2702(c)(4)
(2006). There is also a general
exception to privacy requirements for telecommunications providers responding to
law enforcement requests set forth in 18 U.S.C. § 2511, however that is limited
to actual “content” rather than
identifying data, and is also limited to requests by the Attorney General or
designated law enforcement officer, which does not appear to be the case
here.
[1165]. See 18 U.S.C. § 2709
(2006); John Markoff, “In Spy Data Furor, Ex-Qwest Chief Balked-Lawmakers Vow
Closer Inquiry on Program”, The New York
Times, May 13, 2006 at 13.
[1166]. Barton Gellman and Arshad
Mohammed, “Data on Phone Calls Monitored, Extent of Administrations’s Domestic
Surveillance Decried in Both Parties”, The Washington Post, May 12, 2006, available at
http://www.washingtonpost.com/wpdyn/content/article/2006/5/11/AR200 (The
government lawyer stated “It is within their terms of service because you have
consented to that...and if they do it voluntarily, the U.S. government can
accept it.”).
[1167]. 18 U.S.C. §. 2510-22
(2006).
[1168]. Processor Orin Kerr , a
former federal prosecutor and an expert on the Fourth Amendment, agrees that any
consent granted within the small print in companies’ Terms of Service will not
suffice to provide the consent necessary for the consent exception. Anita
Ramasastry, The Recent Revelations about the NSA’s Access to our Phone Records:
the Laws that were Probably Broken and the Likely Consequences, May 15, 2006, available at
http://writ.news.findlaw.com/ramasastry.
[1169].
Beginning in 2006, the Attorney General is required to submit to the Committee
of the Judiciary in both the House and the Senate a report containing the
“number of accounts from which the Department of Justice has received voluntary disclosures under the
emergency exception,” and a summary for the basis of those disclosures in some
instances. 18 U.S.C. § 2702
(2006).
[1170].47
U.S.C. § 222 et seq. (2006). Anyone who violates this act is subject to fines of
up to $10, 000 or up to one year imprisonment or
both.(§501-503)
[1172]. 47 U.S.C. § 222(c)(1)
(2006).
[1173]. 47 U.S.C. § 222(c)(1)
(2006) (Specifically, the telecommunications companies may disclose this
information in order to provide the telecommunications service from which the
information is derived or when such disclosure is otherwise necessary to provide
service or services necessary to provide this service, including, for example,
the publishing of directories).
[1174]. 47 U.S.C. § 222 (2006).
The Federal Communications Commission issued its Customer Proprietary Network
Information Regulations to implement this law. The rules require that the
companies obtain express consent from their customers before disclosing the
information to third parties or affiliates that do not provide
communications-related services. However, carriers may disclose this information
to affiliates only after obtaining a customer’s “opt-out” consent. “Opt out”
consent requires that the telephone company send the customer a notice saying it
will consider the customer to have given approval to use the customer’s
information for marketing unless the customer tells it not to do so(usually
within 30 days). 47 C.F.R. § 64.2005-2008 (2006).
[1175].
[1176]. 18 U.S.C. § 3123
(2006).
[1177].
Letter from the Center for Democracy and Technology: Preliminary Analysis of NSA
Datamining Program, (May 11, 2006). available at
http://www.cdt.org.
[1178]. Kate Martin, “NSA Again
Violates the Law “(May 11,2006) available
at
http://www.acsblog.org/bill-of-rights-2835-guest-blogger-nsa-again-violates-the-law.html.
[1179]. 442
[1180]. Laurence H. Tribe, “Bush
Stomps on Fourth Amendment”, The
[1181]. Michael V. Hayden, “What
American Intelligence and Especially the NSA Have Been Doing to Defend the
Nation,” National Press Club, Washington, D.C. (Jan 23, 2006)(“I don’t think
that anyone can make the claim that the FISA statute is optimized to deal with
our prevent a 9/11 or to deal with a lethal enemy who likely already had
combatants inside the United States.”).
[1182]. Michael Hayden has
stated, “[H]ad this program been in effect prior to 9/11, it is my professional
judgment that we would have detected some of the 9/11 al Qaeda operatives in the
[1183]. Bush Administration
allies such as William Kristol have also pointed to the case of Zacarias
Moussaoui to support the proposition that FISA impeded the Administration from
stopping the 2001 terrorist attacks and stated that the probable-cause
requirements under FISA are too high to obtain a warrant. See William Kristol and Gary Schmitt,
“Vital Presidential Power”, The
[1184]. Scott McClellan, Remarks
at Press Briefing (Jan. 17, 2006), available at http://www.whitehouse.gov/news/releases/2006/01/20060117-3.html
(“It was the
[1185]. Barton Gellman, “RNC
Points to Spy Orders By Carter,
[1186]. Senate NSA Hearing
(testimony of Attorney General Alberto Gonzales).
[1187]. Foreign Intelligence
Surveillance Act of 1978, 50 U.S.C. § 1805(f) (providing the Attorney General
with the power to authorize electronic surveillance “when the Attorney General
reasonably determines that an emergency situation exists with respect to the
employment of electronic surveillance to obtain foreign intelligence information
before an order authorizing such surveillance can with due diligence be
obtained, and the factual basis for issuance of an order under [FISA’s
subchapter on electronic surveillance] to approve such surveillance
exists”). Beyond the three day
requirement, FISA also permits the government to wiretap a foreign government
for up to an entire year without warrants if the Attorney General can certify
that the information will only be used for foreign intelligence purposes. 50 U.S.C. §
1802.
[1188]. As The New York Times
wrote, “[i]n other words, there is not a shred of proof that the illegal program
produced information that could not have been obtained legally, had the
administration wanted to bother to stay within the law.” “Kabuki Congress”, The New York Times, Mar. 6, 2006. At House Judiciary Briefings, Department
of Justice representatives essentially admitted that their principal objection
to using this program was that it would necessitate additional resources and
manpower, even though in the most recent fiscal year, the Department had a
budget of more than $22 billion and more than 112,000 employees. See U.S. Dept. of Justice, FY2005
Performance and Accountability Report, available at
http://www.usdoj.gov/ag/annualreports/pr2005/TableofContents.htm.
[1189]. FISA previously allowed
the government to begin surveillance without a warrant, in an emergency, so long
as a warrant request was presented to the
[1190]. See Summary of Post
9/11Changes to FISA and Related Laws, Prepared by the Democratic Staffs of the
House Intelligence and Judiciary Committees (Jan. 20,
2006).
[1191]. The Patriot Act expanded
pen register and trap and trace authority under FISA to include addressing and
routing information from e-mail and Internet traffic, in addition to the
previously authorized interception of incoming and outgoing telephone
numbers.
[1192]. Prior to the Patriot Act,
the government could obtain an order for a FISA pen register and trap and trace
(“pen-traps”) only upon certifying that there was reason to believe that the
line to be monitored is being used or about to be used by a suspected spy or
terrorist. Under the Patriot Act, a
FISA pen-trap order may be obtained “for any investigation to gather foreign
intelligence information” where the government certifies that the information
sought is “relevant” to an ongoing investigation. This lower standard of relevance also
applies to e-mail and Internet traffic.
[1193]. Prior to the passage of
the Patriot Act, the government could conduct surveillance under FISA only where
gathering foreign intelligence information was the purpose for the
surveillance. The Patriot Act
changed FISA to allow collection when gathering foreign intelligence information
is a significant purpose of the surveillance.
[1194]. The Patriot Act
significantly extended the duration for FISA warrants for certain categories of
surveillance and physical searches.
[1195]. Before September 11, only
common carriers, hotels, storage facilities, or car rental agencies were
subjected to FISA’s business record authority. Section 215 of the PATRIOT Act
eliminated restrictions on the categories of records that could be sought and
permitting FISA subpoenas to be issued for “any tangible things,” including the
records of libraries, booksellers, financial institutions, internet service
providers and others.
[1196]. To address the problem of
unknown suspected terrorists switching phones or computers, FISA was amended by
the Patriot Act to allow for a generic warrant authorizing covering
communications by an unidentified target, regardless of the specific
communications device used.
[1197]. The Patriot Act amended
the law to require the Director of Central Intelligence (now Director of
National Intelligence) to establish FISA requirements and priorities, and
provide assistance to the Attorney General to ensure proper dissemination of
FISA-derived information.
[1198]. The Patriot Act amended
FISA to shield from causes of action, in any court, companies and individuals
who provide assistance pursuant to FISA court
orders.
[1199]. Previously, government
officials could issue NSLs for financial, credit, telephone, and other business
records only upon certifying there were “specific articulable facts giving
reason to believe” that the subject of an investigation was a “foreign power or
the agent of a foreign power.” The
Patriot Act lowered the standard.
Now, the government is required only to assert that the records or things
are “sought for” a foreign intelligence investigation or to protect against
international terrorism or clandestine intelligence activities.
[1200]. The Patriot Act also
deleted the requirement for high-level FBI headquarters approval for NSLs. Now, Special Agents-in-Charge of FBI
field offices can approve the issuance of NSLs.
[1201]. In the Intelligence
Reform and Terrorism Prevention Act of 2004, Congress for the first time allowed
FISA surveillance of any non-U.S. person who engages in or prepares for
international terrorism.
Previously, FISA surveillance was available only where the government
could show a nexus to a foreign power or international terrorist group. See S.
2845, 108th Cong. (2004).
[1202]. Carol D. Leonnig,
“
[1203]. Carol D. Leonnig,
“
[1204]. Dan Eggen & Robert
O'Harrow Jr., “
[1205]. Carol D. Leonnig,
“
[1206]. Steven R. Weisman,
“Powell Speaks Out on Domestic Spy Program”, The New York Times, Dec. 26, 2005, at
A1.
[1207]. National Commission on
Terrorist Attacks Upon the
[1208]. Jim VandeHei and Dan
Eggan, “Cheney Cites Justifications for Domestic Eavesdropping”, The
[1209].
[1210]. “In our view, the FBI
applied too cramped an interpretation of probable cause and ‘agent of a foreign
power’ in making the determination of whether Moussaoui was an agent of a
foreign power. FBI Headquarters
personnel in charge of reviewing this application focused too much on
establishing a nexus between Moussaoui and a ‘recognized’ group, which is not
legally required. Without going
into the actual evidence in the Moussaoui case, there appears to have been
sufficient evidence in the possession of the FBI which satisfied the FISA
requirements for Moussaoui application.”
Senator Charles Grassley, Senator Patrick Leahy, and Senator Arlen
Specter, FISA Implementation Failures: Interim Report on FBI Oversight in the
107th Congress, Before the Senate Judiciary Committee, Feb. 2003, at 26.
[1211]. Jerry Markon &
Timothy Dwyer, “FBI Was Warned About Moussaoui”, The
[1212].
Maureen Dowd, “Fly Into a Building? Who Could Imagine?” The New York Times, Mar. 22, 2006, at
25. There also would not
appear to have been any legal impediment to prevent the Bush Administration
from, on September 10, 2001, conducting surveillance without pre-approval when
the government intercepted al Qaeda calls outside the United States, which
revealed that an attack was highly imminent, as well as intercepts such as “the match begins
tomorrow” and “tomorrow is zero hour” the Administration could have proceeded
with an emergency wiretap. See,
e.g., David Ensor, Kate Snow, and Kelly Wallace, “Justice May Probe Leaked
Pre-9/11 Intercepts”, CNN, June 21,
2002; James Bamford, “The Agency
That Could Be Big Brother”, The
Nation, Dec. 25, 2005, at 1.
[1213]. Republican National
Comm., Research Briefing: Dems Play Politics Again with National Security (Dec.
21, 2005), available at
http://www.gop.com/media/PDFs/122105NationalSecurity.pdf.
[1214]. Exec. Order 12949 (Feb.
9, 1995).
[1215]. Exec. Order 12949 (Feb.
9, 1995).
[1216]. Barton Gellman, “RNC
Points to Spy Orders By Carter,
[1217]. “Myths and Falsehoods on
the NSA Domestic Call-Tracking Program”, Media Matters, May 15,
2006.
[1218]. Press Release, White
House Press Secretary Scott McClellan, Setting the Record Straight: Democrats
Continue to Attack Terrorist Surveillance Program (Jan. 22, 2006) available at
http://www.whitehouse.gov/news/releases/2006/01/20060122.html.
[1219]. Ironically, it was
Senator Shelby, a Republican and former Chairman of the Senate Select Committee
on Intelligence, who reportedly leaked classified information to the press in
2002. See Allan Lengel and Dana
Priest, “Investigators Concluded
[1220]. 50 USC §
401.
[1221]. 50 USC §
413(a)(1).
[1222]. 50 USC § 413b(e).
[1223]. 50 USC §
413b(e)(1).
[1224]. 50 USC §
413(e).
[1225]. David Morgan, “Bush
agrees to full NSA oversight by Congress”, Reuters, May 16, 2006, available at
http://go.reuters.com/newsArticle.jhtml?type=topNews&storyID=12227749&src=rss/topNews.
[1226]. Alfred Cumming,
“Specialist in Intelligence and National Security, Foreign Affairs, Defense and
Trade Division, Statutory Procedures Under Which Congress Is To Be Informed of
US Intelligence Activities, Including Covert Actions”, Congressional Research
Service Memorandum (Jan. 18, 2006) at 7.
[1227]. Alfred Cumming,
Specialist in Intelligence and National Security, Foreign Affairs, Defense and
Trade Division, Statutory Procedures Under Which Congress Is To Be Informed of
US Intelligence Activities, Including Covert Actions, Congressional Research
Service Memorandum (Jan. 18, 2006) at 8. Representative Harman, the House
Intelligence Committee’s Ranking Member, cited the National Security Act of 1947
in a letter dated January 4, 2006, asserting that Bush violated the law: “I have
reviewed the law and now believe that the practice of briefing only certain
Members of the intelligence committees violates the specific requirements of the
National Security Act.” She states that “failure to provide briefings to the
full congressional intelligence committees is a continuing violation of the
National Security Act.” Harman goes
on to write that “[a]s a general matter, Gang of Eight briefings do not provide
for effective oversight. Members of
the Gang of Eight cannot take notes, seek the advice of their counsel, or even
discuss the issues raised with their committee colleagues. It is precisely for this reason that the
law requires briefings for the full committee.” Letter from the Honorable Jane Harman,
Ranking Member on the House Permanent Select Committee on Intelligence to
President George W. Bush (Jan. 4, 2006).
[1228]. See Scott Shane, “Key Dem
Rips Spy Program Briefings”, The New York
Times, Jan. 5, 2006, at A4. President Discusses Global War on Terror
at
[1229]. Suzanne E. Spaulding,
“Power Play; Did Bush Roll Past the Legal Stop Signs”, The
[1230]. Letter from The Honorable
Jane Harman, Ranking Member on the House Permanent Select Committee on
Intelligence, to The Honorable George W. Bush, United States President (Jan. 4,
2006).
[1231]. Democratic Congressional
Briefing on Constitution in Crisis: Domestic Surveillance and Executive Power
Before the Democratic Judiciary Comm., 109th Cong. (2006) (prepared statement
submitted by Bruce Fein).
[1232]. Thomas G. Donlan,
Editorial Commentary, “Unwarranted Executive Power”, Barron’s, Dec. 26, 2005, available at
http://online.barrons.com/public/main.
[1233]. Jonathan Schell, “Letters
From Ground Zero: The Hidden State
Steps Forward”, The Nation, Jan. 9,
2006, at 8.
[1234]. Senate NSA Hearing
(testimony of Attorney General Alberto Gonzales).
[1235]. Eric Lichtblau and Adam
Liptak, “Bush and His Senior Aides Press On in Legal Defense for Wiretapping
Program”, The
[1236]. Senate NSA Hearing
(testimony of Attorney General Alberto Gonzales).
[1237]. “Statement of President
George W. Bush on signing H.R. 2863, Department of Defense, Emergency
Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and
Pandemic Influenza Act, 2006 (Dec. 30, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051230-8.html.
[1238]. Bob Herbert, Op-Ed, “The
Nixon Syndrome”, The New York Times,
Jan. 9, 2006, at A21.
[1239]. “The President’s End
Run”, Editorial, The Washington Post,
Jan. 23, 2006, at A14.
[1240]. Memorandum from Jay S.
Bybee, Assistant Attorney General, to Alberto R. Gonzalez, Counsel to the
President, Re. Standards of Conduct for Interrogation under 18 U.S.C. §§
2340-2340A (Aug. 1 2002) available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.08.01.pdf.
[1241]. Chirtra Ragavan, “The
Letter of the Law”,
[1242]. When Senator Schumer
asked, “Has the Government searched someone’s home, and American citizen, or
office, without a warrant since 9/11, let’s say?,” the Attorney General
responded, “Sir to my knowledge, that has not happened under the terrorist
surveillance program, and I am not going to go beyond that.” When Senator
Kennedy asked, “[S]ince September 11th, has the President authorized any other
surveillance program within the United States under his authority as
Commander-in-Chief or under the authorization for use of military force in
Afghanistan,” the Attorney General responded, “Senator, I can’t answer that
question in terms of other operations.” Senate NSA Hearing (testimony of
Attorney General Alberto Gonzalez).
[1243]. In his letter to the
Senate Judiciary Committee, Gonzales wrote, “I did not and could not address ...
any other classified intelligence activities.... At least one constitutional scholar who
testified before the committee yesterday said in an interview that Gonzales
appeared to be hinting that the operation disclosed by The New York Times in
mid-December is not the full extent of eavesdropping on
[1244]. Ibid.
[1245]. Oversight Hearing on U.S.
Department of Justice: Hearing
Before the House Judiciary Committee 109th Cong. 24 (2006) (testimony by
Attorney General Gonzales). The
Attorney General further stated that in considering the legal question, he would
look to the same legal justifications used in the domestic spying program – “You
would look at precedent. What have
previous commander in chiefs done?” and he referred to President Wilson’s
authorizing cables to and from
[1246]. President George W. Bush,
Speech given in
[1247]. The
[1248]. President George W. Bush,
President Bush Calls for Renewing the USA Patriot Act (Apr. 19, 2004), available at
http://www.whitehouse.gov/news/releases/2004/04/20040419-4.html.
[1249]. President Bush:
Information Sharing, Patriot Act Vital to Homeland Security (Apr. 20, 2004), available at
http://www.whitehouse.gov/news/releases/2004/04/print/20040420-2.html.
[1250]. President George W. Bush,
Remarks at Ask President Bush Event (Jul. 14, 2004), available at
http://www.whitehouse.gov/news/releases/2004/07/20040714-11.html.
[1251]. Confirmation Hearings on
the Nomination of Alberto R. Gonzales to be Attorney General of the
[1252]. Confirmation Hearing on the Nomination
of Alberto R. Gonzales to be Attorney General of the
[1253]. President George W. Bush,
Remarks at
[1254]. President Bush Encourages
Renewal of Patriot Act Provisions (Jul. 20, 2005), available at
http://www.whitehouse.gov/news/releases/2005/07/20050720-4.html
[1255]. President George W. Bush,
President Visits Troops at
[1256]. Compare
[1257]. President George Bush,
President Visits National Security Agency (Jan. 25, 2006), available at
http://www.whitehouse.gov/news/releases/2006/01/20060125-1.html.
[1258]. Attorney General Alberto
Gonzales, Press Briefing (Dec. 19, 2005), available at
http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html.
[1259]. Vice President Dick
Cheney, Vice President’s remarks on
[1260]. General Michael V.
Hayden, Remarks at National Press Club (Jan. 23, 2006), available at
http://www.freerepublic.com/focus/f-news/1564046/posts.
[1261]. Ibid.
[1262]. Ibid.
[1263]. Ibid.
[1264]. Ibid.
[1266]. Blogometer: When It
Rains, It Amanpours, The Hotline, Jan. 5, 2006, available at
http://nationaljournal.com/cgi-bin/ifetch4?ENG+HOTLINE-_-HOTLINE_WORLD_EXTRA-_-HOUSE_RACE_HOTLINE-_-POLL_TRACK-_-AD_SPOTLIGHT+7-hotindex+1173899-REVERSE+0+1+158+F+1+4+1+amanpours;
David Ensor, “NSA: Amanpour, other CNN reporters not targeted for surveillance”,
CNN.com, Jan.5, 2006, available at
http://www.cnn.com/2006/POLITICS/01/06/nsa.amanpour/index.html.
[1267]. David Ensor, “NSA:
Amanpour, other CNN reporters not targeted for surveillance”, CNN.com, Jan.6,
2005, available at
http://www.cnn.com/2006/POLITICS/01/06/nsa.amanpour/index.html.
[1268]. Letter from the Hon. John
Conyers, Jr., Ranking Members of the House Judiciary Committee, and 27 Members
of Congress, to President George W. Bush (Jan. 5,
2006).
[1269]. In response to the uproar
over the reported wiretapping of Amanpour, a senior intelligence official
assured CNN that he would look into the matter and explained that occasionally
“NSA surveillance overseas ‘inadvertently’ acquires recordings or copies of
communications involving Americans – or what the government calls ‘U.S.
persons,’ which includes most U.S. residents and employees of American companies
. . . however, such materials [by law] are required to be erased or destroyed
immediately.” David Ensor, “NSA: Amanpour, other CNN reporters not targeted for
surveillance”, CNN.com, Jan.6, 2006, available at
http://www.cnn.com/2006/POLITICS/01/06/nsa.amanpour/index.html.
[1270]. James Risen & Eric
Lichtblau, “Bush Lets
[1271]. Ibid.
[1272]. Ibid.
[1274]. Jack O'Neill, “Connecting
the Dots”, The Washington Times, Dec.
26, 2006, at A16 (emphasis added).
[1275]. Barton Gellman, Dafna
Linzer & Carol D. Leonnig, “Surveillance Net Yields Few Suspects”, The
[1276].
[1277].
Dan Eggen, “Negroponte Had Denied Domestic Call Monitoring”, The
[1278].
Dan Eggen, “Negroponte Had Denied Domestic Call Monitoring”, The
[1279]. Barton Gellman &
Arshad Mohammed, “Data on Phone Calls Monitored”, The
[1280].
Leslie Cauley, “NSA Has Massive Database of Americans’ Phone Calls”,
[1281]. Barton Gellman, Dafna
Linzer & Carol D. Leonnig, “Surveillance Net Yields Few Suspects”, The
[1282]. Statement of Lieutenant
General Michael V. Hayden, USAF Director, National Security Agency Chief,
Statement Before the Joint Inquiry of the Senate Select Committee on
Intelligence and the House Permanent Select Committee on Intelligence, October
17, 2002.
[1283]. The database would be
populated by transaction data contained in current databases such as financial
records, medical records, communication records, travel records and intelligence
data. Eric Lichtblau, “F.B.I. Watched Activist Groups, New Files Show”, The New York Times, Dec. 20, 2005 at
A1.
[1284]. In 2003, it was disclosed
that the Bush Administration was developing a futures market to allow investors
to bet on the probability of coups, assassinations, terrorist strikes, and other
events in the
[1285].
Shane Harris, “TIA Lives On”, National
Journal, Feb. 25, 2006, at 66. The National Journal reported that when asked
whether the government could have used the tools apart from TIA, The former No.
2 official in Poindexter's office, Robert Popp replied, “I can't speak to that."
Asked to comment on TIA projects that moved to ARDA, Don Weber, an NSA spokesman
said, "As I'm sure you understand, we can neither confirm nor deny actual or
alleged projects or operational capabilities; therefore, we have no information
to provide.”
[1286]. Initiated by former
Deputy Secretary Paul Wolfowitz in 2003, TALON has been used to collect
information on a wide range of groups unrelated to terrorism, including peace
activists such as the Quaker Meeting House in
[1287]The number of reports with
names of
[1289].
Walter Pincus, “Lawmakers Want More Data on Contracting Out Intelligence”, The
[1290]. United States General
Accounting Office, Data Mining: Federal Efforts Cover a
[1291]. United States General
Accounting Office, Data Mining: Federal Efforts Cover a
[1292].
James Risen & Eric Lichtblau, “Spy Agency Mined Vast Data Trove, Officials
Report”, The New York Times, Dec. 23,
2005, at A1.
[1293]. James Risen & Eric
Lichtblau, “Spy Agency Mined Vast Data Trove, Officials Report”, The New York Times, Dec. 23, 2005, at
A1.
[1294]. James Risen & Eric
Lichtblau, “Spy Agency Mined Vast Data Trove, Officials Report”, The New York Times, Dec. 23, 2005, at
A1.
[1295]. Of the twenty letters
sent, Rep Conyers received written responses from eleven of the companies –
T-Mobile, Cox, Microsoft, Charter, Comcast, Time Warner, Verizon, AT&T,
BellSouth, Google and CenturyTel. Earthlink met with Rep. Conyers staff and
provided an official statement from its chief privacy officer. He received no
response from eight of the companies – Sprint, Citizens Communications, Qwest,
Adelphia, Cablevision, Yahoo!, Cingular, and United Online. Letter from
Congressman John Conyers to Presidents and CEO’s of 20 Telecommunications
Companies concerning President Bush’s Secret Spying Program (Jan. 20,
2006).
[1296]. For example, Comcast
stated that it has not allowed access to customer communications and has not
provided customer records in the absence of valid legal process, articulating
it's "policy and practice to require valid, appropriate legal process such as a
subpoena, court order, or search warrant, in response to all requests for
customer information,” while Time Warner said that its companies “provide
narrowly tailored responses to such requests, and require the government to
furnish process appropriate to the nature of the data sought (such as court
order or subpoena).” Other companies indicated they have not been approached to
provide such assistance For example, Earthlink publicly stated that “[w]e've
never even been asked to give information without the benefit of a subpoena or a
court order behind it. And our policy is to require a subpoena or court order,
basically to require a court of law behind the
inquiry.”
[1297]. For example, AT&T
wrote, “[w]ithout commenting in any way on press reports, let me assure you that
AT&T abides by all applicable laws, regulations and statutes in its
operations and, in particular, with requests for assistance from governmental
authorities.” Verizon responded
that the issue is a matter of national security and that it “accordingly cannot
either confirm or deny cooperation in any such
program.”
[1298]. Ryan Singel,
“Whistle-Blower Outs NSA Spy Room”, Wired
News, April 7, 2006, available at
http://www.wired.com/news/technology/1,70619-0.html.
[1299]. Press Release, White
House Press Secretary Scott McClellan, Setting the Record Straight: Democrats
Continue to Attack Terrorist Surveillance Program (Jan. 22, 2006) available at
http://www.whitehouse.gov/news/releases/2006/01/20060122.html. McClellan said that "[i]t defies common
sense for Democrats to now claim the administration is acting outside its
authority while their own party leaders have been briefed more than a dozen
times."
[1300]. Dan Eggen and Walter
Pincus, “Varied Rationales Muddle Issue of NSA Eavesdropping”, The
[1301]. Leslie Cauley, “NSA has
massive database of Americans’ phone calls”, USA Today, May 11, 2006, at
A1.
[1302]. See Charles Babington and
Dafna Linzer, “Senator Sounded Alarm in ‘03”, The
[1303]. Charles Babington and
Dafna Linzer, “Senator Sounded Alarm in ‘03”, The
[1304]. Letter from the Honorable
Nancy Pelosi, Ranking Democrat, House Intelligence Committee, to Lieutenant
General Michael V. Hayden, USAF Director National Security Agency, (Oct. 11,
2001).
[1305]. Letter from the Honorable
Nancy Pelosi, Ranking Democrat, House Intelligence Committee, to Lieutenant
General Michael V. Hayden, USAF Director National Security Agency, (Oct. 11,
2001). Leader Pelosi also authored an op-ed in The Washington Post soon after
the story of the program broke, stating “[b]ut when the administration notifies
Congress in this manner, it is not seeking approval. There is a clear expectation that the
information will be shared with no one, including other members of the
intelligence committees. As a
result, only a few members of Congress were aware of the president’s
surveillance program, and they were constrained from discussing it more
widely.” Nancy Pelosi, “The Gap in
Intelligence Oversight”, The
[1306]. Douglas Jehl, “Spy
Briefings Failed to Meet legal Test, Lawmakers Say”, The New York Times, Dec. 21, 2005, at
A36.
[1307]. Diana Marrero, “Daschle
says White House Omitted Key Details About NSA Spying Program”, Gannett News Service, Dec. 20, 2005.
[1308]. Evan Thomas & Daniel
Klaidman, “Full Speed Ahead”, Newsweek, Jan. 9, 2006, at 22.
[1309]. Greg Miller and Maura
Reynolds, “U.S. Spying Plan Lacked Congress’ Scrutiny, Leading Democrat Says”,
Los Angeles Times, Dec. 20, 2005, at
A32.
[1310]. Susan Page, “NSA Secret
Database Report Triggers Fierce Debate in
[1311]. Lowell Bergman, Scott
Shane, Don Van Natta, Jr. & Eric Lichtblau, “Spy Agency Data After Sept. 11
Led F.B.I. to Dead Ends”, The New York
Times, Jan. 17, 2006, at A1.
[1312]. “Wiretaps Fail to Make
Dent in Terror War; Al Qaeda Used Messengers”, Insight Magazine, Dec. 26, 2005 - Jan.
1, 2006, available at
http://www.insightmag.com/media/mediaManager/wiretaps_0.htm.
[1313]. Eric Lichtblau &
James Risen, “Spy Agency Mined Vast Data Trove, Officials Report”, The New York Times, Dec. 24, 2005, at
A1.
[1314]. James Gordon Meek, “Taps
Found Clues, Not Al Qaeda, FBI Chief Says”, NY Daily News, Feb. 3, 2006, at 17. When
asked whether the program had led to any leads during his Senate Judiciary
testimony, Attorney General Gonzales refused to say. Senate NSA Hearing
(testimony of Attorney General Alberto Gonzales).
[1315]. Barton Gellman, Dafna
Linzer & Carol D. Leonnig, “Surveillance Net Yields Few Suspects”, The
[1316].
[1317]. Ibid.
[1318]. Ibid.
[1319]. Lowell Bergman, Scott
Shane, Don Van Natta, Jr. & Eric Lichtblau, “Spy Agency Data After Sept. 11
Led F.B.I. to Dead Ends”, The New York
Times, Jan. 17, 2006, at A1.
FBI Director Robert Mueller, testified that “most leads [received by the
FBI], whether it be from the NSA or overseas from the CIA, ultimately turn out
not to be valid or worthwhile.”
Hearing on the Worldwide Threats to the
[1320]. Martin Garbus,
“Impeachment is Now Real”, The Huffington
Post, Dec. 28, 2005 at
http://www.huffingtonpost.com/martin-garbus/impeachment-is-now-real_b_12972.html.
[1321]. Eric Lichtblau &
James Risen, “Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts”,
The
[1322]. Eric Lichtblau &
James Risen, “Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts”,
The
[1323]. Senate NSA
Hearing.
[1324]. Eric Lichtblau &
James Risen, “Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts”,
The
[1325]. Carol D. Leonnig,
“
[1326]. Mark Hosenball & Evan
Thomas, “Hold The Phone”, Newsweek,
May 22, 2006 at 22.
[1327].
[1328]. Wolf Blitzer, CNN Late
Edition, “Interview with Bill Frist”, (May 14, 2006), available at
http://transcripts.cnn.com/TRANSCRIPTS/0605/14/le.01.html.
[1329]. Daniel Klaidman, Stuart
Taylor Jr., & Evan Thomas, “Palace Revolt”, Newsweek, Feb. 6, 2006, at
34.
[1330]. Republican Senator
Lindsey Graham argued that Bush did not deserve punishment for authorizing
warrantless wiretapping because, unlike President Richard Nixon during the
Watergate scandal, Bush had acted in good faith: "This is apples and oranges. .
. . Anybody who believes that Richard Nixon was relying on some
inherent-authority argument is recreating history." David D. Kirkpatrick, “Call
to Censure Bush Is Answered by a Mostly Empty Echo”, The New York Times, April 1, 2006, at
A11.
[1331]. Eric Lichtblau, “Panel
Rebuffed on Documents on
[1332]. During the Department of
Justice oversight hearing in the House Judiciary Committee, Chairman
Sensenbrenner asked Attorney General Gonzales “who was included in the review
prior to the [NSA] program being authorized,” Gonzales responded, "who is read
into the program is a classified matter so I can't - - I can't get into specific
discussions about specifically who was involved in reviewing the legal
authorities for the President of the United States in authorizing this
program." Oversight Hearing on
[1333]. Richard Lacayo, “The
Spying Controversy: Has Bush Gone Too Far?”, Time, Jan. 9, 2006, at
25.
[1334]. Daniel Klaidman, Stuart
Taylor Jr., & Evan Thomas, “Palace Revolt”, Newsweek, Feb. 6, 2006, at 34.
[1335]. Bob Drogin, “Lawmakers
Urge Review of U.S. Spy Program”, Los
Angeles Times, Dec. 19, 2005, at A11 ("I sat in my office" with Lt. Gen.
Michael V. Hayden, who was then head of the National Security Agency and is now
deputy director of national intelligence, to brief Graham at the time, Cheney
said.”).
[1336]. Eric Lichtblau and James
Risen, “Justice Deputy Resisted Parts of Spy Program”, The New York Times, January 1, 2006, at
A1.
[1337]. The Justice Department
opened a criminal investigation at the end of December 2005, within two weeks of
initial disclosure of the program. Dan Eggen, “Justice Dept. Investigating Leak
of NSA Wiretapping”, The
[1338]. President George W. Bush,
Press Conference, (Dec. 19, 2005), available at
http://www.whitehouse.gov/news/releases/2005/12/20051219-2.html.
[1339]. David Johnston, “Inquiry
Into Wiretapping Article Widens”, The New
York Times, Feb. 12, 2006, at 26.
[1340]. David Johnston, “Inquiry
Into Wiretapping Article Widens”, The New
York Times, Feb. 12, 2006, at 26.
[1341]. At the Senate Judiciary
Hearings, the Attorney General stated, “[y]ou would assume that the enemy is
presuming that we are engaged in some kind of surveillance. But if they’re not constantly reminded
about it all the time in newspapers and in stories, they sometimes forget.” Senate NSA Hearing (testimony of
Attorney General Alberto Gonzales).
[1342]. Dan Eggen, “Justice Dept.
Role in Eavesdropping Decision Under Review”, The
[1343]. Frank Rich, “The
Wiretappers Who Couldn’t Shoot Straight”, The New York Times, Jan. 8, 2006,
A15. The Bush Administration has
even raised the specter of using the Justice Department to prosecute the press
directly for publishing information critical of the Administration provided to
them by whistleblowers. Walter
Pincus, “Press Can Be Prosecuted for Having Secret Files,
[1344]. Daniel Klaidman, Stuart
Taylor Jr., & Evan Thomas, “Palace Revolt”, Newsweek, Feb 6, 2006, at 34.
[1345]. Ibid.
[1346]. Ibid.
[1347]. Ibid.
[1348]. Daniel Klaidman, Stuart
Taylor Jr., & Evan Thomas, “Palace Revolt”, Newsweek, Feb 6, 2006, at 34; Evan
Thomas & Daniel Klaidman, “Full Speed Ahead”, Newsweek, Jan. 9, 2006, at 22.
[1349]. Dan Mangan, “Bush Dissed
Justice Big As Cuomo”, The
[1350]. Daniel Klaidman, Stuart
Taylor Jr., & Evan Thomas, “Palace Revolt”, Newsweek, Feb 6, 2006, at
34.
[1351]. Kim Zetter, “The NSA is
on the line–all of them: An intelligence expert predicts we’ll soon learn that
cellphone and Internet companies also cooperated with the NSA to eavesdrop on
us”, Salon.com, May 15, 2006.
[1352]. Leslie Cauley, “NSA Has
Massive Database of Americans’ Phone Calls”,
[1353]. Transcript of David
Frost- Richard Nixon interview, The New
York Times, May 20, 1977, at A16.
[1354]. Katherine Shrader, “Vocal
critic of spying program to shepherd bills through Senate”, Associated Press, March 23, 2006. The Washington Post observed, this “is
the way this executive branch treats its supposedly equal partner: as an
annoying impediment to the real work of government. It provides information to Congress
grudgingly, if at all. It handles
letters from lawmakers like junk mail, routinely tossing them aside without
responding.” Ruth Markus, “Contempt
for Congress”, The
[1355]. The Department’s rules
require the appointment of an outside special counsel when (1) criminal
investigation of a matter is warranted; (2) the investigation of that matter
presents a conflict of interest for the Department; and (3) the appointment of a
Special Counsel is in the public interest.
28 C.F.R. part 600. Under
the FISA statute, surveillance of
[1356]. White House Press
Secretary Scott McClellan, Press Briefing (Feb. 27, 2006), available at
http://www.whitehouse.gov/news/releases/2006/02/20060227-1.html. McClellan said that he does not “think
there's any basis for a special counsel, and. . . Attorney General has spoken
about that.” Ibid. In addition, the ACLU requested that
Attorney General Gonzales appoint an outside special counsel to investigate and
prosecute any criminal acts committed by any member of the Executive Branch in
the NSA warrantless electronic surveillance program. Letter from Anthony Romero, Executive
Director, ACLU, et. al., to Alberto
Gonzales, Attorney General, Department of Justice (Dec. 21, 2005), available at
http://www.aclu.org/safefree/general/23184leg20051221.html. After over three months, the Department
of Justice responded with a one-paragraph letter that sidestepped the ACLU
request and indicated that the Department would merely “act consistently with
special counsel regulations.”
Letter from Steven G. Bradbury, Acting Assistant Attorney General,
Department of Justice, to Anthony Romero, Executive Director, ACLU, et. al. (March 8,
2005).
[1357]. Letter from Congresswoman
Lofgren to President Bush (May 11, 2006).
[1358]. Oversight Hearing on
[1359].
Letter from Glenn A. Fine, Inspector General, Department of Justice, to
Congresswoman Zoe Lofgren et. al. (Jan. 4, 2006).
[1360]. Letter from Thomas F.
Gimble, Acting Inspector General, Department of Defense, to Congresswoman Zoe
Lofgren et. al. (Jan. 10, 2006).
[1361]. Dan Eggen, “Justice Dept.
Role in Eavesdropping Decision Under Review”, The
[1362]. Associated Press,
“Security Issue Kills Domestic Spying Inquiry: NSA Won’t Grant Justice
Department Lawyers Required Security Clearance” (May 10,2006) available at
http://www.msnbc.msn.com/id/12727867/. It was subsequently revealed by
senior government officials that the “only classified information that OPR
investigators were seeking about the NSA’s eavesdropping program was what had
already been given to Ashcroft, Gonzales and other department attorneys in their
original approval and advice on the program.” Shane Harris and Murray Waas,
“Justice Department Probe Foiled”, National Journal, May 25, 2006, available at
http://news.nationaljournal.com/articles/0525nj2.htm.
[1363]. Letter from Democratic
Leader Nancy Pelosi, et. al., to Speaker of the House Dennis Hastert (Dec. 17,
2005), available at http://www.house.gov/pelosi/press/releases/Dec05/investigate.html
(“we believe . . .the justifiable concern of the American people over the
allegations in the Times article, require the House of Representatives to take
steps immediately to conduct hearings on the scope of Presidential power in the
area of electronic surveillance. These hearings would benefit substantially if
an independent panel of Constitutional scholars and experts on the laws
affecting intelligence activities was to examine existing statutes, regulations,
practices and precedents. We urge that you and the Democratic Leader establish
such a panel jointly.”).
[1364]. Surveillance Activities
Commission Act of 2006, S. 2362,
109th Cong. (2006); Surveillance Activities Commission Act of 2006, H.R. 5223, 109th Cong. (2006).
[1365]. Wartime Executive Power
and the NSA’s Surveillance Authority: Hearing Before the Senate Comm. on the
Judiciary, 109th Cong. (2006).
[1366]. Wartime Executive Power
and the NSA’s Surveillance Authority: Hearing Before the Senate Comm. on the
Judiciary, 109th Cong. (2006) (Ranking Member Patrick
Leahy).
[1367]. Letter from Assistant
Attorney General William E. Moschella to Honorable Arlen Specter (Feb.15, 2006).
1368. “Specter warns of
"confrontation" over NSA hearings”, CNN.com, June 8, 2006, available at
http://www.cnn.com/2006/POLITICS/06/07/nsa/
[1369]. Letter from William E.
Moschella, Assistant Attorney General, to the Hon. F. James Sensenbrenner,
Chairman, Committee on the Judiciary (March 24, 2006). The
Department provided vague and unresponsive answers to all but two of the 45
questions submitted by Judiciary Committee Democrats and most of the questions
posed by Judiciary Committee Chairman Sensenbrenner.
[1370]. Dan Eggen, “Warrantless
Wiretaps Possible in the
[1372]. David Kirkpatrick &
Scott Shane, “G.O.P. Senators Say Accord is Set on Wiretapping”, The New York Times, March 8, 2006, at
A1.
[1373]. Editorial, “About that
Rebellion”, The New York Times, March
11, 2006, at A14.
[1374]. Editorial, “Kabuki
Congress”, The New York Times, March
6, 2006, at A20. Regarding the
DeWine legislation, the Philadelphia Daily News wrote, “[t]o us, this is mopping
up after spilled milk, while the guy who spilled it, the president, gets off
with a smirk.” Editorial, “The Fix
is in for Bush”, Philadelphia Daily
News, March 23, 2006, at 17.
[1375]. Editorial, “Kabuki
Congress”, The New York Times, March
6, 2006, at A20.
[1376].Intelligence Authorization
Act for Fiscal Year 2006, S. 1803, 109th Cong. (2005); Walter Pincus, “Senator
May Seek Tougher Law on Leaks”, The
Washington Post, Feb. 17, 2006, at A4. The House Intelligence Committee
has been even less aggressive in its oversight. Instead of a serious review, they appear
to be planning a continuation of the same oversight process that led to the
problems in the first place. As The
New York Times wrote, “the chairman of the House Intelligence Committee, Peter
Hoekstra, is turning [their investigation]
into a pro forma review that would end with Congress rewriting the
foreign-intelligence law the way Mr. Bush wants.” Editorial, “Kabuki Congress”, The New York Times, March 6, 2006, at
A20.
[1377]. H. Res. 641, 109th Cong.
(2005).
[1378]. H. Res. 643, 109th Cong.
(2005).
[1379]. H. Res. 644, 109th Cong.
(2005).
[1380]. H. Res. 645, 109th Cong.
(2005).
[1381]. H.R. Rep. No. 109-385
(2006); H.R. Rep. No. 109-382
(2006); H.R. Rep. No. 109-383 (2006); H.R. Rep. No. 109-384
(2006).
[1382]. This was the case even
though, for example, the Conyers resolution was specifically crafted to permit
redaction of any classified information included in the legal opinion. H. Res. 643, 109th Cong. (2005).
The request made in the Conyers Resolution was “subject to necessary redactions
or requirements for handling classified documents.”
[1383]. Letter from the Federal
Communications Commission to Honorable Markey, (May 22,
2006).
[1384]. Dan Eggen & Julie
Tate, “
[1385]. Mark Fazlollah, “Dozens
of Cases Misclassified as Terror”,
[1386]. Editorial, “Justice
Dept.’s Absurdity on Terrorism”, Daily
Iowan, July 20, 2004. They
found, for example, “five Mexicans faced terrorism charges after stealing baby
formula to sell to a man of Arab descent” who later resold the baby formula for
himself, and in Waterloo, Iowa, five Pakistanis were labeled terrorists after
they tired to have sham marriages so they could stay in the area to
work.
[1387]. U.S. Gen. Accounting
Office, Justice Department: Better Management Oversight and Internal Controls
Needed to Ensure Accuracy of Terror-Related Statistics 2 (2003).
[1388]. The Administration
selectively made public various classified documents in an apparent effort to
discredit political rivals and deflect criticism on its handling of the war on
terrorism. For example, then
Attorney General John Ashcroft accused former Clinton Deputy Attorney General
Jamie Gorelick, of building up the “wall” that prevented the flow of information
between law enforcement and intelligence in terrorism investigations when he
publicly released 29 pages of internal documents, including a memorandum
authored by Gorelick in 1995 about intelligence sharing. Eric Lichtblau, “White House Criticizes
Justice Dept. Over Papers”, The New York
Times, Apr. 30, 2004, at A24.
In 2003, after Congress had voted to restrict the library and bookstore
provisions of Section 215 of the PATRIOT Act, Mr. Ashcroft set out on a
nationwide speaking tour to rally support for the PATRIOT Act and “agreed to
declassify data on demands for library records to counter ‘misinformation’ and
because department has been unable to tilt debate in its favor.” President Bush employed a similar tactic
when he selectively declassified parts of a March 2002 National Intelligence
Estimate so as to discredit former Ambassador Joe Wilson, who found no evidence
that Saddam Hussein was procuring uranium from Niger. “Bush Acknowledges
Declassifying Intelligence”, CNN.com, April 11, 2006, available at
http://www.cnn.com/2006/POLITICS/04/10/whitehouse.leak/index.html.
[1389]. Memorandum from John
Ashcroft, Attorney General, to Heads of all Federal Departments and Agencies
(Oct 12. 2005).
[1390]. Gen. Accounting Office,
Freedom of Information Act: Agency Views on Changes Resulting from New
Administration Policy 20 (2003).
[1391]. The state secrets
doctrine was first used in 1953 to protect information about a plane crash, and
dismiss a suit by the crash victims’ families.
[1392]. William Fisher, “‘State
Secrets’ Privilege Not so Rare”, InterPress Service, Aug. 16, 2005, available at
http://ipsnews.net/news.asp?idnews=29902.
[1393]. For Maher Arar’s court
filings, see
http://www.ccr-ny.org/v2/legal/september_11th/sept11Article.asp?ObjID=zPvu7s2XVJ&Content=377. The United States District Court for the
Eastern District of New York has still not ruled on whether Mr. Arar’s case will
be dismissed.
[1395]. David Caruso, “Dismissal
of Lawsuits Over NSA Eavesdropping Sought”, The
[1396]. Andrew Harris,
“
[1397]. Dana Priest, “Secrecy
Privilege Invoked in Fighting Ex-Detainee’s Lawsuit”, The
[1398]. In 1995, President
Clinton created a presumption of disclosure policy, stating that “[i]f there is
significant doubt about the need to classify information, it shall not be
classified.” However, President
Bush subsequently reversed the presumption of
disclosure.
[1399]. In 2004, the federal
government classified 15.6 million new documents, an 80 percent increase from
2001. At the same time, the federal
government declassified only 28.4 million pages last year, the lowest number of
pages since 199, a 72 percent drop in the number of declassified pages
since 2001. Hearings Before the
Subcomm. on National Security, Emerging Threats, and International Relations of
the House Comm. on Government Reform, 109th Cong. (2005) (statement of Timothy
H. Edgar, Legislative Counsel, American Civil Liberties Union). J. William Leonard,
director of the Information Security Oversight Office, the arm of the National
Archives and Records Administration responsible for the security classification
program, warned “[p]eople also need to see that national security can be
adversely impacted if information is improperly hoarded.” Similarly, the 9/11 Commission
report recognized that excessive classification almost certainly represents the
greatest barrier to effective information sharing, explaining “[n ]o one has to
pay the long-term costs of over-classifying information, though these costs . .
. are substantial.” National
Commission on Terrorist Attacks Upon the
[1400]. Charlie Savage, “Bush
Challenges Hundreds of Laws: President Cites Powers of His Office,”
[1401]. Charlie Savage, “Bush
Challenges Hundreds of Laws: President Cites Powers of His Office”,
Legal Standards and
Authorities
The following is a description of various
laws, regulations and other legal requirements potentially applicable to the
various matters identified in the Report.
1. Deception
of Congress and the American Public
a. Committing
a Fraud Against the
b. Making
False Statements to Congress (18 U.S.C. § 1001)
c. War Powers
Resolution (Public Law 93-148)
d. Misuse of
Government Funds (31 U.S.C. § 1301)
2. Improper
Detention, Torture, and Other Inhumane Treatment
a.
Anti-Torture Statute (18 U.S.C. §§ 2340-40A)
b. The War
Crimes Act (18 U.S.C. § 2441)
c. The
d. United
Nations Convention Against Torture, and Cruel, Inhuman and Degrading
Treatment: International Laws
Governing the Treatment of Detainees
e. Command
Responsibility
f. Material
Witness (18 U.S.C. § 3144)
3. Retaliating
against Witnesses and Other Individuals
a. Obstructing
Congress (18 U.S.C. § 1505)
b.
Whistleblower Protection (5 U.S.C. § 2302)
c. The
Lloyd-LaFollette Act (5 U.S.C. § 7211)
d. Retaliating
against Witnesses (18 U.S.C. § 1513)
4. Leaking and
other Misuse of Intelligence and other Government
Information
a. Revealing
Classified Information in Contravention of Federal Regulations (Executive Order
12958/ Classified Information Nondisclosure Agreement)
b. Statutory
Prohibitions on Leaking Information
5. Laws and
Guidelines Prohibiting Conflicts of Interest
6. Laws Governing
Electronic Surveillance
a. Foreign
Intelligence Surveillance Act (50 U.S.C. § 1801 et seq.)
b. National Security
Act of 1947 (50 U.S.C. chapter 15)
c.
Communications Act of 1934 (47 U.S.C. § 222)
d. Stored
Communications Act of 1986 (18 U.S.C. § 2702)
e. Pen
Registers or Trap and Trace Devices (18 U.S.C. § 3121)
1. Deception
of Congress and the American Public
a. Committing
a Fraud Against the
This statute makes it a crime, punishable by a fine and up to five years
in prison, to conspire “to defraud the
For nearly 80 years this statute has been used to prosecute government
officials and citizens alike who commit a fraud in the most liberal use of the
term. The law is clear: the
government need not be defrauded of money or property to trigger this
statute. It is enough that the
government was prevented from being able to exercise its lawful duties and
authorities. As the Supreme Court
stated, the law applies to those who:
interfere with or obstruct one of its lawful
governmental functions by deceit, craft or trickery, or at least by means that
are dishonest. It is not necessary that the Government shall be subjected to
property or pecuniary loss by the fraud, but only that its legitimate official
action and purpose shall be defeated by misrepresentation, chicanery or the
overreaching of those charged with carrying out the governmental intention.
Another more recent case repeats that principle of law. The Second Circuit held that “this
statute does not restrict its application to documents that are required to be
given to Congress, does not require proof that any statements made to effect the
object of the conspiracy were made directly to Congress, and does not require
that the conspiracy was successful.” United States v. Ballistrea, 101 F.3d 827,
831-832 (2nd Cir. 1996), cited by
Francis T. Mandanici, Bush’s Uranium
Lies: The Case for a Special Prosecutor That Could Lead to Impeachment (June
29, 2005), available at
http://democracyrising.us/content/view/269/164. One treatise has defined fraud as “a
generic term which embraces all the multifarious means which human ingenuity can
devise and are resorted to by one individual to gain an advantage over another
by false suggestions or by suppression of the truth.” Corpus Juris Secundum § 2. Francis T. Mandanici, “Bush’s Uranium
Lies: The Case for a Special Prosecutor That Could Lead to Impeachment,” (June
29, 2005).
Lawrence E. Walsh, Independent Counsel in charge of the Iran-Contra
investigation pointed out that the deception of Congress statute applies even
when the official is involved in official government policy. In his final report, he concluded,
“Fraud is criminal even when those who engage in the fraud are Government
officials pursuing presidential policy.”
Under these precedents, anyone – including the President and his
Administration – is prohibited from intentionally misleading the Congress or any
other part of the government in pursuit of his or her policy. While this statute is similar to
obstructing or lying to Congress (described below), it is broader. It covers acts that may not technically
be lying or communications that are not formally before Congress. Indeed, it need only be “overreaching,”
in the words of the Supreme Court, (Hammerschmidt, 265
This statute was used in the prosecution of numerous Administration and
military officials in the Iran-Contra scandal. Ibid. It was also used by the Justice
Department to prosecute members of the Nixon Administration who used the CIA to
interfere with the FBI investigation of the Watergate break-in.
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
b. Making
False Statements to Congress (18 U.S.C. § 1001)
Federal law proscribes the submission of false statements or evidence to
Congress or congressional committees.
It is a criminal offense to knowingly and
willfully:
(1) falsif[y], conceal, or cover up by any
trick, scheme, or device a material fact; (2) make any materially false,
fictitious, or fraudulent statement or representation; or (3) make or use any
false writing or document knowing the same to contain any materially false,
fictitious, or fraudulent statement or entry. 18 U.S.C. § 1001(a). The penalty includes a fine,
imprisonment for not more than five years, or both.
With respect to the proceedings before
Congress, this prohibition applies to administrative matters and to “any
investigation or review, conducted pursuant to the authority of any committee,
subcommittee, commission or office of the Congress, consistent with applicable
rules of the House or Senate.” Ibid.
§ 1001(c). The statute’s parameters were extended to Congress only in 1996.
False Statements Accountability Act of 1996, Pub. L. No. 104-292, § 2, 110 Stat.
3459 (1996); see also
There is no limitation on the definition of what constitutes an
“investigation or review” by Congress.
As such, the term could encompass any hearing, markup, deposition,
interrogatory, informal request for information, or speech before Congress or
one of its committees or subcommittees.
For example, Article II of the Constitution directs the President “from
time to time [to] give to the Congress Information of the State of the
In addition, legal treatises have further explained the meaning of the
term “fraudulent misrepresentation.”
The term “fraudulent misrepresentation” includes “half truths calculated
to deceive; and a half truth may be more misleading than an outright lie. A representation literally true is
actionable if used to create an impression substantially false, as where it is
accompanied by conduct calculated to deceive or where it does not state matters
which materially qualify that statement.” Corpus Juris Secundum § 24. Francis T. Mandanici, “Bush’s Uranium
Lies: The Case for a Special Prosecutor That Could Lead to Impeachment,” (June
29, 2005).
c. War Powers
Resolution (Public Law 93-148)
It is unconstitutional and illegal for the President to engage the U.S.
Armed Forces without timely congressional authorization. As a constitutional matter, the War
Powers Clause, contained in article I, section 8, of the Constitution, gives
Congress the sole authority to declare war.
As a statutory matter, in 1973 Congress passed the War Powers Resolution
(WPR), which governs what powers the President is provided in order to send
armed forces into hostilities absent a congressional declaration of war. War
Powers Resolution, Pub. L. No. 93-148 (1973). The WPR requires the President to
consult with Congress “in every possible instance” before sending troops into
hostilities and to submit reports to Congress whenever forces are introduced. Ibid. Under the WPR, within sixty days after an
initial report to Congress is submitted or should have been submitted, the
President must terminate any use of armed forces unless Congress (1) declares
war or authorizes the use of force, (2) extends the sixty-day period, or (3)
cannot meet due to an attack on the United States. The D.C. Circuit Court of
Appeals has interpreted this to mean that if the President engages
d. Misuse of
Government Funds (31 U.S.C. § 1301)
Federal law makes it illegal to use government funds appropriated to the
government for any purpose other than those specifically permitted by the
appropriations. It specifically
states that “appropriations shall be applied only to the objects for which the
appropriations were made except as otherwise provided by law.” 31 U.S.C. §
1301. The illegal use of funds
would cause an automatic diminution in funds available to the guilty
agency. Id
To determine whether a government activity is legal, it is important to
understand whether the agency or office that engaged in the activity was
permitted to expend funds for that specific purpose. See U.S. General Accounting Office, Principles of
Federal Appropriations Law 4-9 (3d ed. 2004). As a general rule, of course, none of
the functions of government offices include the dissemination of false
information, the dissemination of information for political ends, or retribution
against political opponents. For
example, the Constitution provides that the President shall be
commander-in-chief of the Armed Forces, have the authority to grant pardons,
have the power to sign treaties, and nominate civil officers and ambassadors and
judges.
Thus, the use of government funds for anything other than these
enumerated purposes would violate the law.
Using appropriated funds to criticize other officials or private citizens
or to disseminate information for political purposes would be
illegal.
2. Improper
Detention, Torture, and Other Inhumane Treatment
Pursuant to federal law and numerous international treaties and
conventions, the
a.
Anti-Torture Statute (18 U.S.C. §§ 2340-40A)
Federal law prohibits torture, which is defined as: “an act committed by
a person acting under the color of law specifically intended to inflict severe
physical or mental pain or suffering . . . upon another person within his
custody or physical control.” 18 U.S.C. § 2340(1). This statute’s application
does not rely on the location of the abuse, the nationality of the victim, nor
the combat or civilian status of the person in custody; all
In practice, “torture” has been defined broadly by our own
government. The military’s own
manual lists techniques such as the abuse of stress positions and sleep
deprivation as torture and prohibits their use. Human Rights Watch, Getting Away With Torture:
Command Responsibility for the U.S. Abuse of Detainees, Apr. 2005 at 34
(citing Army Field Manual 34-52).
Further, our State Department has categorized other nations as human rights
violators for practicing these precise techniques, including food, sleep and
sensory deprivation, isolation and stress positions. Country Reports, U.S.
Department of State, available at
http://www.state.gov/g/drl/hr/c1470.htm.
It is also important to note that we have prosecuted others for war
crimes for the same behavior. After
World War II, the
Those who order torture, or in other ways conspire to commit torture, can
be held criminally liable under this statute – the statute doesn’t require a
person to actually commit torture with his own hands. Amnesty International, Denounce
Torture (Nov. 2001), available
at www.amnestyusa.org/stoptorture/law.html. In addition to the traditional
conspiracy and aiding and abetting charges, military personnel and officials can
be held liable under the command responsibility doctrine. See Human Rights Watch, Getting Away With Torture:
Command Responsibility for the
Conspiring to violate this prohibition is explicitly recognized in the
statute and is punishable up to life in prison if death results, and for twenty
years in prison otherwise. 18 U.S.C. § 2340A(c).
Notably, the Administration itself has recognized that its officials
could be prosecuted for their role in condoning torture under this statute in
particular. In fact, the Bush
Administration has taken great pains to craft a legal defense to a charge under
this statute noting that someday officials in the Bush Administration may be
prosecuted for their role in the abuse of detainees.
b. The War
Crimes Act (18 U.S.C. § 2441)
The War Crimes Act of 1996 criminalizes actions that would be either
“grave breaches”
·
of the
Geneva Conventions Geneva Convention Relative to the Treatment of Prisoners of
War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, [hereinafter “GC III”];
Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, [hereinafter “GC IV”], (entered into force Oct. 21, 1950). The
·
or
violations of Common Article 3 of the Geneva Conventions. 18 U.S.C. § 2441 As President Bush has admitted himself,
Iraqi detainees held in
Grave breaches are defined within the Conventions as “wilful killing,
torture or inhuman treatment, including biological experiments, willfully
causing great suffering or serious injury to body or health;” (GC III, art. 130;
GC IV art. 147) and “wilfully depriving a protected person of the rights of fair
and regular trial prescribed in the present Convention.” GC IV, art. 147. See also GC III, art. 130 which requires
that Prisoners of War also receive fair trials. urther, it is a grave breach to
remove a detained from the country where he is located, except when his removal
is necessary for his own safety.
Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol
1), June 8, 1977, art. 85, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]
(“4. In addition to the grave breaches defined in the preceding paragraphs and
in the Conventions, the following shall be regarded as grave breaches of this
Protocol, when committed willfully and in violation of the Conventions or the
Protocol:
(a) the transfer by the occupying Power of
parts of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the occupied
territory within or outside this territory, in violation of Article 49 of the
Fourth Convention”).
Common Article 3 prohibits
“[v]iolence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;...outrages upon personal dignity, in particular
humiliating and degrading treatment.” GC III, art. 3; GC IV, art.
3.
The Administration has admitted it is subject to prosecution under this
statute. The Attorney General in
fact cited his concern with prosecution under the War Crimes Act as a
justification for declaring Afghan detainees devoid of protection under the
Geneva Conventions. Memorandum from White House Counsel Alberto R.
Gonzales to President George W. Bush (Jan 25, 2002), available at
http://www.humanrightsfirst.com/us_law/etn/gonzales/memos_dir/memo_20020125_Gonz_Bush.pdf.
Because this provision can only be used to
prosecute abuse of those protected by the Conventions, withholding those
protections would allow the government to use techniques barred by international
law without fear of prosecution in American courts.
It is important to note that despite the focus in the media concerning
what exactly constitutes “torture,” “torture” isn’t necessary to a conviction
under this statute. It is just as
much a war crime to:
1.
treat a detainee “inhumanly”
2.
cause “great suffering” or “serious injury”
3.
denying detainees the right to a fair trial
4.
practice “cruel treatment”
5.
commit “outrages upon personal dignity, in particular humiliating and
degrading treatment” GC III, art. 130; GC IV, art. 147; Additional Protocol 1,
arts. 11, 85. See International Committee of the Red
Cross, How ‘Grave Breaches’ are Defined
in the
c. The
The
Violation of the above provisions are considered “grave breaches” and
obligate our government to investigate and punish those responsible. The Conventions make clear that it is up
to participating countries to enforce its provisions, as it is the only way that
those protections will be observed.
Jennifer
Member nations are required to provide the
framework for such enforcement and then to use that framework once violations
occur.
The Geneva Conventions afford many other protections that the
$
Holding civilians only as long as they are a demonstrable security risk,
and then reviewing their detention at least every six months in an independent
tribunal; GC IV, art. 41- 42.
$
Allowing the International Committee of the Red Cross access to
detainees/internees; GC IV, art. 143.
$
Preventing the use of weapons that cause the “superfluous injury or
unnecessary suffering” of combatants. GC Protocol I, art. 35(2). Similarly, civilians “shall enjoy
general protection against dangers arising from military operations.” GC
Protocol I, art. 51.
Similarly, the Hague Conventions regulate the laws of war. An Annex to the Hague Conventions,
entitled Respecting the Laws and Customs of War on Land, prohibits the use of
weapons or other devices that cause unnecessary suffering. Convention on the
Laws and Customs of War on Land (Hague IV Annex); October 18, 1907 (it is
forbidden “to employ arms, projectiles, or material calculated to cause
unnecessary suffering.).
The
Most notably, it also bans the use of cruel, inhuman and degrading
treatment of those in
As Amnesty International explains, there is no distinct line between
torture and CID, although the latter has been defined broadly to make sure
nothing abhorrent can slip through a “loophole” in the definition. Amnesty International, Torture and the
Law (November 2001) at
www.amnestyusa.org/stoptorture/law.html. Behavior of this nature is
prohibited by the Geneva Conventions and the Convention Against Torture.
However, Human Rights First has noted that other nations that have been
subjected to terrorism for decades have refrained from using CID techniques.
Human Rights First, U.S. Laws Prohibits
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, at www.humanrightsfirst.org.
Our own courts interpreting these phrases will look at a totality of the
circumstances to see if treatment rises to the level of a CID violation. Jama v.
INS, 22 F. Supp. 2d 353 (D. N.J. 1998).
For example, a federal court found cruel and inhuman treatment in a
The court found the following treatment
violated the ban on CID: sleep deprivation; forced nakedness; ethnic and sexual
taunts; sexual touch less than and including sexual assault; deprivation of
clothing; deprivation of fresh food; shackling of detainees to their beds;
months of solitary confinement; and the trading of sexual favors from female
detainees in exchange for the ability to contact their lawyers. Ibid. at 358-59.
This is consistent with international tribunals and other courts that
have interpreted the ban on CID treatment.
They have found that acts, which may not be illegal alone, when applied
in concert can rise to the level of CID, including hooding, sleep deprivation,
loud music, and long durations in stress positions. Ibid.
Again, the onus is on the member countries to enact whatever framework is
necessary to deter and punish not only those who commit these acts, but those
who are “complicit” in their execution. CAT, art. 4 (“Each State Party shall
ensure that all acts of torture are offences under its criminal law. The same
shall apply to an attempt to commit torture and to an act by any person which
constitutes complicity or participation in torture.”). This includes instituting
“prompt and impartial investigation, wherever there is reasonable ground to
believe that an act of torture has been committed.” Ibid. at art. 12.
Columnist Bob Herbert further noted:
The Universal Declaration of Human Rights,
adopted in 1948, states simply that “No one shall be subject to torture or
cruel, inhuman or degrading treatment or punishment.” The International Covenant on Civil and
Political Rights, to which the
The United States has long recognized the legal principle of command
responsibility – that military officials can be held criminally responsible for
acts of their subordinates if they knew - or should have known - of the
transgressions and failed to stop them or even punish them after the fact. See
Human Rights Watch, Getting Away With
Torture: Command Responsibility for the
In re Yamashita, 327 U.S. 1 (1946), the preeminent case on command
responsibility, held that a commander could be held criminally responsibility
for the actions of his subordinates.
General Tomoyuki Yamashita, the military governor of the
Its purpose to protect civilian populations
and prisoners of war from brutality would largely be defeated if the commander
of an invading army could with impunity neglect to take reasonable measures for
their protection. Hence the law of war presupposes that its violation is to be
avoided through the control of the operations of war by commanders who are to
some extent responsible for their subordinates. Ibid. at 15.
Deciding that Yamashita would stand trial
before military commissions for the atrocities committed by his soldiers, the
court held that a commander has “an affirmative duty to take such measures as
were within his power and appropriate in the circumstances to protect prisoners
of war and the civilian population.” Ibid. at 16. Yamashita was eventually found
guilty of war crimes for failing to control his troops and executed. Human Rights Watch, Getting Away With
Torture: Command Responsibility for the
U.S. and international law has since developed a three prong test to
impose command responsibility for military commanders and civilian officials
with constructive control over military forces: (1) a superior-subordinate
relationship must exist, (2) the superior must have knowledge or reason to know
that a crime was about to be committed or had been committed, and (3) the
superior failed to prevent the crime or punish it after the fact. Ibid. This doctrine is reflected in the
current Army Field Manual, (U.S. Army Field Manual 27-10, The Law of Land
Warfare (July 18, 1956), § 501.) guidelines for U.S. instituted military
tribunals, (Department of Defense, Military Commission Instruction No. 2, Crimes
and Elements for Trials by Military commission, Apr. 30, 2003, available at www.defenselink.mil.)
individual recovery under the Alien Tort Claim Act (Kadic v.
Karadzic, 70 F.3d 232 (2nd Cir. 1995); Xuncax v. Gramajo, 886 F.Supp.
162 (D.Mass.1995) and the Torture Victim Protection Act, (Ford v. Garcia, 289
F3d 1283, (11th Cir. 2002) (defining the three elements of command
responsibility in an action under the Torture Victim Protection Act); Xuncax v.
Gramajo, 886 F.Supp. 162 (D.Mass.1995) and international law. Study on Customary International
Law, International Committee of the Red Cross, July 21, 2005, available at www.icrc.org. As the Ninth Circuit stated, “The
principle of ‘command responsibility’ that holds a superior responsible for the
actions of subordinates appears to be well accepted in
First, there must be a superior-subordinate relationship. Courts will find such a relationship
where it is explicit, such as in the military command structure, but also where
actual or effective control exists. Ford, 289 F.3d at 1290-91. It therefore can be extended to civilian
and political superiors. Major Michael L. Smidt, Yamashita
Second, the superior must know, or have reason to know, that a crime was
about to be committed, or had been committed. One military commentator has explained
that the “should have known” standard “is primarily linked to time. Where
reports are received over time or where large numbers of crimes are committed by
large numbers of subordinates, creating a basis of constructive notice, it is
reasonable to say that the commander should have known.” Ibid. at 199.
Finally, the superior must have either failed to prevent the violation he
foresaw or failed punish it after it occurred. It is customary international law and
now standard in
This third prong may also be met when a superior to fails to investigate
and punish a crime once it has occurred. Ford, 289 F.3d at
1292-93.
f. Material
Witness (18 U.S.C. § 3144)
Federal law governs how individuals with information about a crime may be
detained. Section 3144 of title 18,
United States Code, provides that if the government was not certain that a
subpoena would compel a witness to appear in court, then the court could issue a
warrant for the person’s detention as a material witness. 18 U.S.C. § 3144. The individual would have to be provided
with access to counsel during detention.
The person may not be held at all, however, if their testimony could be
secured by a deposition. Ibid. Finally, the individual must be released
when justice would no longer be served by the detention. Ibid.
3. Retaliating
against Witnesses and Other Individuals
a. Obstructing
Congress (18 U.S.C. § 1505)
It is a federal criminal offense to impede any due exercise of
congressional authority. More
specifically, section 1505 of title 18 makes it illegal
to:
corruptly, or by threats or force, or by any
threatening letter or communication influences, obstructs, or impedes or
endeavors to influence, obstruct, or impede . . . the due and proper exercise of
the power of inquiry under which any inquiry or investigation is being had by
either House, or any committee of either House or any joint committee of the
Congress. 18 U.S.C. § 1505. The
penalty for violations of this prohibition includes a fine, imprisonment for not
more than five years, or both. Ibid.
In general, the statute prohibits persons from “corruptly” influencing or
impeding the exercise of congressional power. This has been construed to apply to
situations when the defendant causes another to violate his or her legal duty to
Congress, such as by coercing or threatening a witness before Congress to
testify falsely or inaccurately.
Finally, it is important to recognize that a congressional inquiry does
need not be formally authorized for the section 1505 prohibition to apply. Instead the courts have
found:
the question of whether a given
congressional investigation is a ‘due and property exercise of the power of
inquiry’ for purposes of § 1505 cannot be answered by a myopic focus on
formality. Rather, it is properly
answered by a careful examination of all the surrounding circumstances. If it is apparent that the investigation
is a legitimate exercise of investigative authority by a congressional committee
within the committee’s purview, it should be protected by § 1505. . . . To give § 1505 the protective force it
was intended, corrupt endeavors to influence congressional investigations must
be proscribed even when they occur prior to formal committee authorization.
Thus, any exercise of a committee or
Congress’ power, formal or informal, is protected from corruptive influence or
obstruction. It would be unlawful,
therefore, for any person in an official or unofficial capacity to coerce
another individual to provide false statements or testimony to Congress or to
force such individual to respond inaccurately to any congressional inquiry. Such inquiry could be initiated pursuant
to formal Committee action or merely as part of an informal
investigation.
b.
Whistleblower Protection (5 U.S.C. § 2302)
In 1989, Congress passed the Whistleblower Protection Act to ensure that
those who came forward to expose lawlessness and waste in the federal government
would not be discouraged by fear of reprisal. 5 U.S.C. §
2302.
5 U.S.C.A. § 2302 delineates different “prohibited personnel practices”
and applies to almost every government agency employee. Excepted positions include those within
the FBI, the CIA, the Defense Intelligence Agency, the National Security Agency
and military employees of the Department of Defense. Ibid. at (a)(2)(B)-(C); Homeland and
National Security Whistleblower Protections: The Unfinished Agenda, Project on
Government Oversight, Apr. 28, 2005 at 5, 8 [hereinafter POGO Report]. Other non-covered agencies include the
Government Accountability Office, Defense Mapping Agency, Airport Baggage
Screeners and government contractors.
One of those prohibited practices is adverse employment actions for
whistleblowing activities. For
positions besides those listed above, the government is barred from taking, or
failing to take, a personnel action in retaliation for the employee’s:
Disclosure of information…which the employee
or applicant reasonably believes evidences—
(i) a
violation of any law, rule or regulation, or
(ii) mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific danger to
pubic health or safety. 5 U.S.C.§ 2303(a). However, the employee’s disclosure must
be lawful itself for the employee to receive the statutory
protection.
The head of the applicable agencies are
responsible for ensuring these prohibited practices do not take place. Ibid. at (c). However, if they do, the employee may
seek redress from the Office of Special Counsel, the Merit Systems Protection
Board, and the federal court system. POGO Report, at 8.
c.
The Lloyd-LaFollette Act (5 U.S.C. § 7211)
Also known as the “anti-gag rule,” this statute passed in response to the
Taft and Theodore Roosevelt Administrations’ attempt to silence their
employees. It ensures that agency
employees can provide Congress with the information necessary to do its job.
Memorandum from Jack Maskell, Cong. Research Serv., to the Honorable Charles
Rangel at 4 (Apr. 26, 2004) [hereinafter Maskell Memo], available at
http://www.pogo.org/m/gp/wbr2005/AppendixD.pdf. It states that:
The Right of employees, individually or
collectively, to petition Congress or a Member of Congress, or to furnish
information to either House of Congress or to a committee or Member thereof, may
not be interfered with or denied. 5 U.S.C. § 7211.
Far broader than the Whistleblower Protection Act, this statute applies
to everyone in the government’s employ, even those in the intelligence field
that are not protected under that statute.
Moreover, it does not limit the sort of information that is
protected. It reflects what the
Supreme Court has found to be the fundamental right and necessity of Congress
receiving information: “a
legislative body cannot legislate wisely or effectively in the absence of
information regarding conditions which the legislation is intended to affect or
change.” Maskell memo supra at
3. In fact, this right is so
paramount that the Court has presumptively construed every statute in the
To give teeth to the Lloyd-LaFollette Act, Congress has repeatedly passed
a spending restriction in the annual Treasury Appropriations bill to prevent
paying the salary of anyone who interferes with an employee’s effort to provide
information to the Congress. The
requirement is clear: federal money shall not be spent to help suppress the
first amendment rights of federal employees:
No part of any appropriation contained in
this or any other Act shall be available for the payment of the salary of any
officer or employee of the Federal Government, who--
(1) prohibits or prevents, or attempts or
threatens to prohibit or prevent, any other officer or employee of the Federal
Government from having any direct oral or written communication or contact with
any Member, committee, or subcommittee of the Congress in connection with any
matter pertaining to the employment of such other officer or employee or
pertaining to the department or agency of such other officer or employee in any
way, irrespective of whether such communication or contact is at the initiative
of such other officer or employee or in response to the request or inquiry of
such Member, committee, or subcommittee; or
(2) removes, suspends from duty without pay,
demotes, reduces in rank, seniority, status, pay, or performance of efficiency
rating, denies promotion to, relocates, reassigns, transfers, disciplines, or
discriminates in regard to any employment right, entitlement, or benefit, or any
term or condition of employment of, any other officer or employee of the Federal
Government, or attempts or threatens to commit any of the foregoing actions with
respect to such other officer or employee, by reason of any communication or
contact of such other officer or employee with any Member, committee, or
subcommittee of the Congress as described in paragraph (1). See e.g. H.R. 3058, 109th Cong. § 918
(2005) (as engrossed by the House); S. 1446, 109th Cong. (2005); see also, for example, Consolidated
Appropriations Act, 2005, Pub. L.
No. 108-447, § 618 of Division H, 118 Stat. 2809 (2004); Consolidated
Appropriations Act, 2004, Pub. L. No. 108-99, § 618 of Division F, 117 Stat.
1176 (2003); Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, §§
617, 620, 117 Stat. 11 (2003);
Treasury and General Government Appropriations Act of 2002, Pub. L. No.
107-67, §§ 617, 620, 115 Stat. 514 (2001).
d.
Retaliating against Witnesses (18 U.S.C. § 1513)
The government may not retaliate against individuals who provide truthful
information to law enforcement officials.
Section 1513(e) of title 18 prohibits anyone from “knowingly, with the
intent to retaliate, takes any action harmful to any person, including
interference with the lawful employment or livelihood of any person, for
providing to a law enforcement officer any truthful information relating to the
commission or possible commission of any Federal offense . . . .” 18 U.S.C. §
1513(e).
The term “law enforcement officer” is defined as “an officer or employee
of the Federal Government . . . or serving the Federal Government as an adviser
or consultant (A) authorized under law to engage in or supervise the prevention,
detection, investigation, or prosecution of an offense; or (B) serving as a
probation or pretrial services officer under this title.” 18 U.S.C. §
1515(a)(4). The penalty for witness
retaliation consists of a fine, imprisonment for not more than 10 years, or
both. 18 U.S.C. § 1513(e).
Because of the definition of “law enforcement officer,” this statute
would apply to retaliating against any federal employee with investigative
authority. For instance, a “law
enforcement officer” would include any Justice Department employee (including
attorneys, FBI agents, DEA agents, and ATFE agents) as well as inspectors
general. This is because each
inspector general must “provide policy direction for and to conduct, supervise,
and coordinate audits and investigations relating to the programs and operations
of [the relevant office].” 5 U.S.C. app. 3, § 4 (emphasis added). Any person who
informed such officials of violations of federal law would be protected from any
form of retaliation, such as firing, demotion, or rescission of security
clearance or other tools necessary for job performance.
A violation of section 1513 is a predicate offense under RICO. 18 U.S.C.
§ 1961. It thus is unlawful to
acquire and invest income or to acquire any interest in any enterprise through a
pattern of section 1513 violations.
Ibid. § 1962. Penalties for
violating RICO include a fine, imprisonment for not more than twenty years, or
both, as well as forfeiture of any proceeds from the illegal activity. Ibid. § 1963.
Finally, it is a separate criminal offense to conspire to commit the
crime of witness retaliation. Ibid. §
1513. The penalty for conspiring to
commit such an offense is the same as for the crime that was the object of the
conspiracy.
4. Leaking and
other Misuse of Intelligence and other Government Information
Numerous federal laws and regulations make it a crime to disclose
national security or intelligence information without proper
authorization.
First, there are administrative sanctions for misuse of classified
information. Presidential Executive
Order 12958 prescribes a uniform system for classifying, declassifying, and
protecting information related to the national defense. Exec. Order No. 12948,
32 C.F.R. § 2001.10 et seq.
(2005). It requires each agency
head to implement controls over the distribution of classified information. Ibid. Section 5.5 provides that, if the
Director of the Information Security Oversight Office finds a violation of the
Order has taken place, the Director must report to the appropriate agency head
so correction action may occur.
Ibid. Further, sanctions for
such violations include: “reprimand, suspension without pay, removal,
termination of classification authority, loss or denial of access to classified
information, or other sanctions in accordance with applicable law and agency
regulation.”
Ibid.
The Order further requires that the supervisors of those who divulge
classified information take remedial action against such officials. Such action can include the removal of
security clearance and other measures to prevent further
disclosure.
In effect, any supervisor of an individual with access to classified
information must sanction such individual if he or she illegally discloses the
information. For instance, the
President would be responsible for ensuring that White House officials and staff
having access to classified information complied with the Executive Order and
would have to punish any such individual who violated the
Order.
Also, prior to obtaining access to classified information, government
officials must sign a Classified Information Nondisclosure Agreement, known as a
Standard Form 312 or SF-312. The
Agreement states that breaches (i.e., disclosure of classified information)
could result in the termination of security clearances and removal from
employment. The Agreement, signed
by White House officials such as Mr. Rove, states: “I will never divulge
classified information to anyone” who is not authorized to receive it. Information Security Oversight Office,
Classified Information Nondisclosure Agreement (Standard Form 312): Briefing
Booklet 73 (emphasis added).
See also The Honorable Henry
A. Waxman, Ranking Member, U.S. House Comm. on Gov’t Reform, Fact Sheet: Karl
Rove’s Nondisclosure Agreement 1-2 (July 15, 2005).
It also is important to note that even confirming the accuracy of
classified information in a public source is a violation of the agreement. Information Security Oversight Office,
Classified Information Nondisclosure Agreement (Standard Form 312): Briefing
Booklet 73 (emphasis added).
See also The Honorable Henry
A. Waxman, Ranking Member, U.S. House Comm. on Gov’t Reform, Fact Sheet: Karl
Rove’s Nondisclosure Agreement 1-2 (July 15, 2005).
The agreement specifically states:
However, before disseminating the
[classified] information elsewhere or confirming the accuracy of what appears in
the public source, the signer of the SF 312 must confirm through an authorized
official that the information has, in fact, been declassified. If it has not, further dissemination of
the information or confirmation of its accuracy is also an authorized
disclosure. Information Security
Oversight Office, Classified Information Nondisclosure Agreement (Standard Form
312): Briefing Booklet 73.
In short, if a White House official signs the agreement yet proceeds to
disclose or confirm classified information, the President would be required to
terminate that individual’s security clearance and remove him or her from their
position.
b. Statutory
Prohibitions on Leaking Information
Numerous federal statutes make it a criminal offense to convey anything
of value that belongs to the
This statute has been interpreted broadly, giving latitude to what
constitutes a “thing of value.” The
Fourth Circuit Court of Appeals has held that the classification of information
is, in and of itself, relevant to determining whether that information is a
“thing of value” to the
Because “thing of value” is a broad term, the prohibition in turn is
broad. Information such as
The mens rea, or intent,
requirement under the statute also is interpreted broadly. The government need only establish that
the defendant transmitted information without authority. Jeter, 775 F.2d at 681. It is irrelevant whether the defendant
knew the information was “of value” to the
Second, it is illegal for any person to willfully disclose information
related to the national defense.
Subsection 793(d) of title 18 applies to persons having lawful possession
of vital information. Criminal
liability assigns to anyone:
who has lawful possession of, access to,
control over, or being entrusted with any document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint, plan, map, model,
instrument, appliance, or note relating to the national defense, or information
relating to the national defense which information the possessor has reason to
believe could be used to the injury of the United States or to the advantage of
any foreign nation, [and] willfully communicates, delivers, transmits or causes
to be communicated, delivered, or transmitted or attempts to communicate,
deliver, or transmit or cause to be communicated, delivered or transmitted the
same to any person not entitled to receive it, or willfully retains the same and
fails to deliver it on demand to the officer or employee of the United States
entitled to receive it.” 18 U.S.C. § 793(d).
The penalty for violating this prohibition includes a fine, imprisonment
for not more than ten years, or both.
This means that it is unlawful to divulge any information related to
Courts have construed this prohibition broadly. For instance, prohibited disclosures are
not limited to foreign agents; it is illegal to disclose defense information to
the media, as well.
Third, it is a highly serious offense to transmit any defense information
to a foreign agent or foreign government, regardless of whether the foreign
entity is friendly or an enemy. See
Such conduct is illegal if the transmission is direct or indirect. Ibid. § 794(a). The disclosure must occur with the
intent or reason to believe that it would be used to injure the
In other words, government officials and private citizens are prohibited
from leaking to foreign governments any information related to our national
defense. This prohibition applies
to information about
Finally, it also can be a specific federal crime to disclose the name of
a covert
5. Laws and
Guidelines Prohibiting Conflicts of Interest
Existing law and rules of professional conduct govern when Department
attorneys must recuse themselves from particular investigations. Federal law requires the Attorney
General to promulgate rules mandating the disqualification of any officer or
employee of the Justice Department “from participation in a particular
investigation or prosecution if such participation may result in a personal,
financial, or political conflict of interest, or the appearance thereof.” 28
U.S.C. § 528 (emphasis added).
Pursuant to this requirement, the Department has promulgated regulations
stating that:
No employee shall participate in a criminal
investigation or prosecution if he has a personal or political relationship
with: (1) any person . . . substantially involved in the conduct that is the
subject of the investigation or prosecution; or (2) any person . . . which he
knows or has a specific and substantial interest that would be affected by the
outcome of the investigation or prosecution. 28 C.F.R. §
45.2.
To reiterate the importance of preventing conflicts of interest, the
Justice Department has further explicated the guidelines in its U.S. Attorneys’
Manual. The Attorneys’ Manual
provides that:
When United States Attorneys, or their
offices, become aware of an issue that could require a recusal in a criminal or
civil matter or case as a result of a personal interest or professional
relationship with parties involved in the matter, they must contact General
Counsel's Office (GCO), EOUSA. The requirement of recusal does not arise in
every instance, but only where a conflict of interest exists or there is an
appearance of a conflict of interest or loss of impartiality.
Furthermore, rules of professional conduct bar lawyers from matters in
which they have conflicts of interest.
Because Department attorneys must follow the ethical rules of the bar in
which they practice, 28 U.S.C. § 530B, officials at Main Justice are obligated
to comply with the District of Columbia Bar’s Rules of Professional
Conduct. These Rules state that,
without consent, a lawyer shall not represent a client if “the lawyer’s
professional judgment on behalf of the client will be or reasonably may be
adversely affected by the lawyer’s responsibilities to or interests in a third
party or the lawyer’s own financial, business, property, or personal
interests.” District of Columbia Bar,
Rules of Professional Conduct 1.7(b)(4). The American Bar Association mimics this
guideline in Rule 1.7 of its own Model Rules of Professional Conduct. See American Bar Association, Model Rules of
Professional Conduct 1.7(a)(2).
6. Laws Governing
Electronic Surveillance
The general rule regarding electronic surveillance is that it is illegal
for any person to “engage in electronic surveillance under color of law except
as authorized by statute.” 50 U.S.C. § 1809.
There are two statutes that govern electronic surveillance: (1) Title III
of the Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”),
18 U.S.C. §§ 2510-2521.which governs wiretapping in criminal cases; and (2) the
Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C. § 1801 et seq.
which governs electronic surveillance of
foreign powers or agents of foreign powers in national security
investigations. These two statutes
are the “exclusive means by which electronic surveillance ... and the
interception of wire and oral communication may be conducted.” 18 U.S.C. §
2511.
a.
Foreign Intelligence Surveillance Act (50 U.S.C. § 1801 et
seq)
In discussing Presidential authority to conduct warrantless electronic
surveillance to gather foreign intelligence, the Foreign Intelligence
Surveillance Act (FISA) is the applicable statute. In fact, FISA applies to the
“interception of international wire communications to or from any person
(whether or not a
Exceptions to this warrant requirement exist when there is an emergency
and during wartime. If the Attorney
General certifies that there is an emergency need to conduct electronic
surveillance, he may authorize the surveillance, but must apply for a FISA
warrant as soon as practicable, and not more than 72 hours later. Ibid. § 1805(f). For example, if a
Wartime also creates an exception to FISA’s warrant requirement. FISA expressly governs wiretapping
procedures “during time of war” and provides that “the President, through the
Attorney General, may authorize electronic surveillance without a court order
under this title to acquire foreign intelligence information for a period not to
exceed fifteen days following a declaration of war by the Congress.” Ibid. § 1811.
If the electronic surveillance is directed solely at communications
between or among foreign powers and there is “no substantial likelihood” that
the surveillance will acquire the contents of any communication to which a U.S.
person is a part, then the President may authorize surveillance without a FISA
warrant for up to one year. Ibid. §
1802. A
FISA’s most notable provisions in this particular context are provisions
that make criminal any electronic surveillance not authorized by statute (Ibid. § 1809.) and provisions that
expressly establish FISA and specified provisions of the federal criminal code
as the “exclusive means by which electronic surveillance . . . may be
conducted.” 18 U.S.C. § 2511(2)(f).
b. National Security
Act of 1947 (50 U.S.C. chapter 15)
The National Security Act of 1947, and amendments thereto, governs the
nation’s counterintelligence apparatus. 50 U.S.C. chapter 15. Briefings are
limited to the Gang of Eight only when intelligence activities involve “covert
action” or activities of the United States Government to influence political,
economic, or military conditions abroad, where it is intended that the role of
the United States Government will not be apparent.” 50 U.S.C. § 413b(e). Covert actions, pursuant to the statute,
do not include “activities the primary purpose of which is to acquire
intelligence.” Ibid. §
413b(e)(1).
Unless a “covert action” is involved, the National Security Act requires
that “the President shall ensure that the congress intelligence committees are
kept fully and currently informed of the intelligence activities of the
c.
Communications Act of 1934 (47 U.S.C. § 222)
Section 222 of the Communications Act generally states that every
telecommunications carrier has a duty to protect the confidentiality of the
proprietary information of their customers. 47 U.S.C. § 222(a). Proprietary
information is: (a) information that relates to the quantity, technical
configuration, type, destination, location, an amount of use of a
telecommunications service subscribed to by any customer of a telecommunications
carrier, and that is made available by the customer solely by virtue of the
carrier-customer relationship; and (b) information contained in the bills
pertaining to telephone exchange service or telephone service received by a
customer of a carrier. Id. § 222(h)(1)(A-B).A carrier may only
use, disclose, or permit access to individually-identifiable customer
information in its provision of the telecommunications service or services
necessary to the provision of such service. Ibid. § 222(c)(1). The law provides that the carrier may
disclose such information if it is required by law, if it has customer approval,
or if it falls under one of the exceptions outlined in the chapter. Ibid. § 222.
The Communications Act provides several exceptions to the prohibition on
disclosure of communications content.
Specifically, the law provides that a carrier may disclose the content of
communications in order to (1) provide or initiate services and collect or bill
for services rendered; (2) to protect the rights or property of the carrier, or
to protect users of those services from fraudulent, abusive, or unlawful use of,
or subscription to, such services; (3) to provide telemarketing, referral, or
administrative services to the customer; or (4) to provide call location
information in the case of an emergency.
Ibid. § 222(d).
Carriers in violation of the requirements provided in the Communications
Act are subject to a variety of penalties under the Act. Specifically, the law provides for
criminal penalties for any knowing and willful violation of any provision of the
Act. 47 U.S.C. § 501. The resulting
criminal penalty provided by the Act is a fine of up to $10,000, imprisonment
for up to one year, or both; and in the case of a person previously convicted of
violating the Act, a fine up to $10,000, imprisonment up to two years, or both.
Ibid. In addition, the law also
punishes the willful and knowing violations of Federal Communication Commission
regulations that result from a violation of the Act. Ibid. § 502. This section provides that any person
who willfully and knowingly violates any rule, regulation, restriction, or
condition made or imposed by the Commission is, in addition to other penalties
provided by law, subject to a maximum fine of $500 for each day on which a
violation occurs. Ibid.
d. Stored
Communications Act of 1986 (18 U.S.C. § 2702)
Under the Stored Communications Act of 1986, it is a federal criminal
offense for a provider of electronic communications services or of remote
computing services to disclose the contents of a communication that are in
electronic storage. 18 U.S.C. § 2702(a).
The penalty for violating this prohibition is a fine and up to ten years
imprisonment for serious and repeat offenders. Ibid. § 2701. In addition, persons
harmed by knowing or intentional violations of the law may bring civil actions
in court for damages, attorney’s fees, and equitable relief. Ibid. § 2707.
Exceptions to the prohibition on disclosure of communications content
exist, such as for transmissions that are incident to the provision of
communications service and pursuant to specific criminal statutes. Ibid. § 2702(b). There is also an exception wherein a
provider may divulge a communication to a governmental entity if, in good faith,
the provider believes that an emergency involving danger of death or serious
physical injury to any person requires disclosure. Ibid. Furthermore, in analyzing another
statute that permits voluntary disclosure of customer records, a court has held
that there must be a good faith nexus between the alleged suspicious activity
and the disclosure of the protected information for there to be statutory
protection for the disclosure. Lopez v. First Union Nat’l Bank, 129 F.3d 1186
(11th Cir. 1997). Defendant evoked
the safe harbor provision of the Annunzio-Wylie Anti-Money Laundering Act of
1992 (31 U.S.C. § 5318 (g)(3)).
There also are exceptions that allow for disclosure of customer records.
18 U.S.C. § 2702(c). These include:
the consent of the subscriber, necessarily incident to the provision of service,
to a government entity if the provider believes an emergency involving danger of
death or serious injury requires disclosure. Ibid. Additional provisions of the Stored
Communications Act require that the Attorney General submit to the Committee on
the Judiciary in both the House and the Senate a report containing the number of
accounts from which the Department of Justice has received voluntary disclosures
under the emergency exception, and a summary for the basis of those disclosures
in some instances on an annual basis. 18 U.S.C. § 2702(d).
e. Pen
Registers or Trap and Trace Devices (18 U.S.C. § 3121)
Pen registers are surveillance devices that capture in real-time the
phone numbers dialed on outgoing telephone calls; (18 U.S.C. § 3127(3)) trap and
trace devices capture the numbers identifying incoming calls. 18 U.S.C. §
3127(4). These devices are not
designed to reveal the content of communications, or even identify the parties
to a communication or whether a call was connected at all. The law on pen registers and trap and
trace devices expressly prohibits their installation and use without first
obtaining a court order either under the criminal wiretap law (18 U.S.C. §
3123.) or under FISA. 18 U.S.C. § 3121. This prohibition does not apply to use
by an electronic or wire service provider relating to the operation, maintenance
and testing of a service or protection of the rights or property of the service
provider, or to use where the consent of the user of the service has been
obtained. Ibid. Furthermore, a
government agency authorized to install and use a pen register or trap and trace
device under the provisions of this statute, must use technology reasonably
available to it that restricts the recording or decoding of electronic impulses
utilized in the processing and transmitting of wire or electronic communications
in a manner that does not include the contents of that communication. 18 U.S.C.
§ 3123.
Major
Reports
The following is a listing of signficiant government reports used in
connection with the preparation of this Report.
A.
Executive
Branch
1.
Comprehensive Report of the Special Advisor to the Director of Central
Intelligence on
Report prepared by Charles Duelfer, head of
the Iraq Survey Group, which found that Iraq’s illicit weapons capability had
been destroyed and research stopped many years before the United States led the
invasion of Iraq in March 2003.
2.
U.S. Department of Justice, Legal
Authorities Supporting the Activities of the National Security Agency Described
by the President (White Paper) (Jan. 19, 2006), available at
http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf.
This White Paper describes the President’s
legal justification for the domestic spying program arguing that the President
has inherent war powers under the Constitution to order warrantless
eavesdropping on U.S. citizens and that the President's inherent authority
seemingly supersedes FISA in a time of war.
3.
The Commission on the Intelligence Capabilities of the United States
Regarding Weapons of Mass Destruction (“Robb-Silberman Report”) (March 31,
2005), available at http://www.wmd.gov/report/
This Report found that the “Intelligence
Community was dead wrong in almost all of its pre-war judgments about
4.
Office of the Inspector General, U.S. Department of Justice, THE
SEPTEMBER 11 DETAINEES: A REVIEW OF
THE TREATMENT OF ALIENS HELD ON IMMIGRATION CHARGES IN CONNECTION WITH THE
INVESTIGATION OF THE SEPTEMBER 11 ATTACKS (April 2003), available at
http://www.fas.org/irp/agency/doj/oig/detainees.pdf.
The report found “significant problems in
the way the September 11 detainees were treated. . . .the evidence indicates a
pattern of physical and verbal abuse by some correctional officers . . . [and]
certain conditions of confinement were unduly harsh . . .”
5. Office of
Inspector General, U.S. Department of Justice, SUPPLEMENTAL REPORT ON SEPTEMBER
11 DETAINEES’ ALLEGATIONS OF ABUSE AT THE METROPOLITAN DETENTION CENTER IN
BROOKLYN, NEW YORK (December 2003), available at
http://www.usdoj.gov/oig/special/0312/final.pdf.
The Inspector General report “found evidence
that some officers slammed detainees against the wall, twisted their arms and
hands in painful ways, stepped on their leg restraint chains, and punished them
by keeping them restrained for long periods of time.”
6.
Office of the Inspector General, U.S. Department of Justice, A REVIEW OF
THE FBI’S HANDLING OF THE BRANDON MAYFIELD CASE (UNCLASSIFIED AND REDACTED)
(March 2006) available at
http://www.usdoj.gov/oig/special/s0601/PDF_list.htm.
The Report found that the FBI fingerprint
examiners were reckless in their duties and “that Mayfield’s [legal]
representation of a convicted terrorist and other facts developed during the
field investigation, including his Muslim religion, also likely contributed to
the examiners’ failure to sufficiently reconsider the identification after
legitimate questions were raised.”
B. Legislative
Reports
1.
U.S. Senate Select Committee on Intelligence, Report on the U.S.
Intelligence Community’s Prewar Intelligence Assessments on
C. Government Accountability
Office
1.
JUSTICE DEPARTMENT: BETTER
MANAGEMENT OVERSIGHT AND INTERNAL CONTROLS NEEDED TO ENSURE ACCURACY OF
TERROR-RELATED STATISTICS (January 2003) available at
http://www.gao.gov/new.items/d03266.pdf.
The GAO found that “DOJ does not have
sufficient management oversight and internal controls in place, as required by
federal internal control standards, to ensure the accuracy and reliability of
its terrorism-related conviction statistics.” For example, the DOJ misclassified close
to 46% of terrorism related convictions which hindered “Congress’s ability to
accurately assess terrorism-related performance outcomes of the
2.
HOMELAND SECURITY: JUSTICE
DEPARTMENT’S PROJECT TO INTERVIEW ALIENS AFTER SEPTEMBER 11, 2001 (April 2003)
available at
http://www.gao.gov/new.items/d03459.pdf.
The GAO found that as of March 2003, law
enforcement officers had interviewed 3,216 aliens and that “the results are
difficult to measure, and DOJ has not fully analyzed all the data obtained from
the interviews or how effectively the project was implemented.”
3.
FREEDOM OF INFORMATION ACT:
AGENCY VIEWS ON CHANGES RESULTING FROM NEW ADMINISTRATION POLICY
(September 2003) available at
http://www.gao.gov/new.items/d03981.pdf.
The GAO found that one third of all FOIA
officers reported a decreased likelihood of their agency making a discretionary
disclosure in the current Administration.
4.
DATA MINING: FEDERAL
EFFORTS COVER A WIDE RANGE OF USES (May 2004) available at
http://www.gao.gov/new.items/d04548.pdf.
The GAO report highlights the types of and
extent to which data mining occurs in the Federal Government, finding that “52
agencies are using or are planning to use data mining. These departments and agencies reported
199 data mining efforts, of which 68 are planned and 131 are operational . . .
out all 199 data mining efforts identified, 122 used personal information.”
5.
REVIEW OF U.S. ATTORNEY GENERAL’S TRAVEL COSTS FOR USA PATRIOT ACT TOUR
AND RELATED TRAVEL (October 12, 2004) available at
http://www.gao.gov/new.items/d0595r.pdf.
The GAO examined and provided “information
on the locations and costs of the U.S. Attorney General’s travels known as the
USA PATRIOT Act Tour, as well as the locations and costs of a series of trips in
September 2003 referred to by DOJ as ‘Life and Liberty’
travel.”
D. Congressional Research Service
1.
Elizabeth B. Bazan and Jennifer K. Elsea, Legislative Attorneys, Presidential Authority to Conduct
Warrantless Electronic Surveillance to Gather Foreign Intelligence
Information, Congressional Research Service Memorandum (CRS Memo) (January
5, 2006).
The CRS memo concludes that “it appears
unlikely that a court would hold that Congress has expressly or impliedly
authorized the NSA electronic surveillance operations here under discussion, and
it would likewise appear that, to the extent that those surveillances fall
within the definition of “electronic surveillance” within the meaning of FISA or
any activity regulated under Title III, Congress intended to cover the entire
field with these statutes.”
2.
Alfred Cumming, Statutory
Procedures Under Which Congress Is To Be Informed of
The CRS “memorandum examines certain
existing statutory procedures that govern how the executive branch is to keep
Congress informed of U.S. intelligence activities, reviews pertinent legislative
history underpinning the development of those procedures, and looks at the
notification process that reportedly was followed in informing certain Members
of Congress of the President’s decision to authorize the National Security
Agency (NSA) to collect signals intelligence within the United
States.”
3.
Elizabeth B. Bazan, Gina Marie Stevens, and Brian T. Yeh, Government Access to Phone Calling Activity
and Related Records: Legal
Authorities, Congressional Research Service (May 17,
2006).
This report “summarize[s]
statutory authorities regarding access by the Government, for either foreign
intelligence or law enforcement purposes, to information related to telephone
calling patterns or practices. [It] also discuss[es] statutory prohibitions
against accessing or disclosing such information, along with relevant exceptions
to those prohibitions.”
4.
Gina Marie Stevens and Tara Alexandra Rainson, Data Security: Protecting the Privacy of Phone
Records, Congressional Research Service (May 17,
2006).
“This report discusses recent legislative
and regulatory efforts to protect the privacy of customer telephone records, and
efforts to prevent the unauthorized use, disclosure, or sale of such records by
data brokers.” Gina Marie Stevens and Tara Alexandra Rainson, Data Security: Protecting the Privacy of Phone
Records, Congressional Research Service (May 17, 2006).
E.
State
Governments
1.
District of Columbia, Maryland, and Virginia Advisory Committee to the
U.S. Commission on Civil Rights, CIVIL RIGHTS CONCERNS IN THE METROPOLITAN
WASHINGTON D.C., AREA IN THE AFTERMATH OF THE September 11, 2001, TRAGEDIES
(June 2003) available at
http://www.usccr.gov/pubs/sac/dc0603/dc0603.pdf.
The Committee report found that “To the
extent that government investigators target people based on their ethnic or
religious background, these actions are at best ineffective protection against
terrorism.” The report describes
the rise in hate crimes following September 11 and argues that current tactics
to fight terrorism “pose a threat to civil liberties.” It states that efforts should be made to
“increase the
2.
Illinois Advisory Committee to the U.S. Commission on Civil Rights, ARAB
AND MUSLIM CIVIL RIGHTS ISSUES IN THE CHICAGO METROPOLITAN AREA POST-SEPTEMBER
11 (May 2003) available at
http://www.usccr.gov/pubs/sac/il0503/il0503.pdf.
The Report describes the increase in hate
crimes against those perceived to be Arab or Muslim post-September 11 in the
3.
California State Senate Office of Research, THE PATRIOT ACT, OTHER POST
9/11 ENFORCEMENT POWERS AND THE IMPACT ON CALIFORNIA’S MUSLIM COMMUNITIES (March
2004), available at
http://www.sen.ca.gov/sor/REPORTS/REPORTS_BY_SUBJ/GOVERNMENT/PATRIOT4-02.PDF.
The report reviews whether or not “the
federal government, ostensibly to prevent further attacks, was targeting and
harassing whole communities of largely Muslim immigrants living in the
4.
New York Advisory Committee to the U.S. Commission on Civil Rights, CIVIL
RIGHTS IMPLICATIONS OF POST-SEPTEMBER 11 LAW ENFORCEMENT PRACTICES IN NEW YORK
(March 2004) available at
http://www.usccr.gov/pubs/sac/ny0304/ny0304.pdf.
The Committee found that law enforcement
policies and practices have “pos[ed] a threat to civil rights and civil
liberties, especially within