John W. Dean

Political Manipulation of the Threat Level: Is Ridge's Charge a Federal Crime?

By JOHN W. DEAN
Friday, September 4, 2009

Early buzz on a new book by former Secretary of the Department of Homeland Security Tom Ridge, The Test of Our Times, has attracted serious attention, and for good reason. Initially, it looked like a former Bush Administration cabinet member was about to come clean. Now, it is not clear exactly what Ridge is doing. Let me explain.

On August 20, 2009, I appeared on MSNBC's "Countdown with Keith Olbermann." The show had obtained an exclusive early copy of Ridge's book, and I was surprised to learn of its content. Tom Ridge was confirming what many Bush Administration watchers (including myself) had long suspected: that color-coded terror alerts had been issued in 2003 and 2004 to frighten voters into supporting the reelection of President Bush over his Democratic opponent, Senator John Kerry. This was a disturbing charge, and perhaps even one describing potentially criminal conduct.

Ridge's Charge of Political Pressure Influencing Terror Alerts

Paraphrasing and quoting from Ridge's book, Keith Olbermann reported that "[o]n Friday, October 29th, 2004, four days before the vote, Osama bin Laden released a new videotape, you'll remember. Mr. Ridge did not think that warranted a change in the terror alert status. He [writes in the new book], ‘At this point, there was nothing to indicate a specific threat and no reason to cause undue public alarm.'"

Olbermann continued reporting from the book as follows: "But in a subsequent video conference call, quote, ‘a vigorous, some might say dramatic discussion ensued. Attorney General John Ashcroft strongly urged an increase in the threat level and was supported by Defense Secretary Donald Rumsfeld. There was absolutely no support for that position within our department, none. I wondered, ‘Is this about security or politics?' Post-election analysis demonstrated a significant increase in the president's approval ratings in the days after the raising of the threat level.' "

This report concluded by noting that Ridge had claimed that, because White House staff agreed that raising the threat level could look politically-motivated, he had succeeded in quelling the effort. "I believe our strong interventions have pulled the `go-up` advocates back from the brink," Ridge had written, adding, "I consider the episode to be not only a dramatic moment in Washington's recent history, but another illustration of the intersection of politics, fear, credibility and security. After that episode, I knew I had to follow through with my plans to leave the federal government." (This chapter of Ridge's book later appeared on ABC News.com.)

When Keith asked on the air for my reaction, I explained that -- even though Ridge's charge was hedged, and less than full-throated -- at its core he was describing criminal conduct. And, I added that, as a former United States Attorney, Tom Ridge surely knew his way around the federal criminal code.

Since Countdown broke this story, it has continued to grow, and the controversy appears to be far from over.

Ridge Suggests Possible Criminal Behavior on the Part of Rumsfeld and/or Ashcroft

Ridge does not explain what Rumsfeld and Ashcroft said to him. Nor does he describe precisely how they pressured him to raise the threat level before the election. Ridge does explain, however, that the Department of Homeland Security had no intelligence in its possession that justified raising the threat level.

The subtext of Ridge's material is unmistakable. He is suggesting that Don Rumsfeld and John Ashcroft were pushing him to raise the threat level before the election. Both Rumsfeld and Ashcroft are savvy political operators. Because they had no intelligence better than the intelligence Ridge had, Ridge explains, their aggressive pushing made him wonder "Is this about security or politics?" (Ridge "wonders" about almost a dozen matters in his book, but this is the only matter as to which he wondered in italics, for special emphasis.)

Ridge writes that the pressure was so intense from Rumsfeld and Ashcroft that he assigned his staff, who appear to have been fully privy to the uncalled-for pressure to raise the threat level, to assist in blocking their effort. Ridge writes that "[General] Pat Hughes would check around the intelligence community. Jim Loy would reach out to his fellow deputies within the cabinet. Susan Neely would contact Dan Bartlett, the head of public affairs for the White House." Bartlett would then go to the President, which resulted in the matter being dropped.

In short, Ridge has named the witnesses who will back up his charges that he was being pressured, for apparent political reasons, to raise the threat level. Strikingly, he identifies no less than four other people as having been privy: Hughes, Loy, Neely and Bartlett. It is not likely that he would have named these people if he did not believe they would back up his claim that Rumsfeld and Ashcroft were pressuring him to raise the threat level, and that -- since they did not have intelligence to justify it -- everyone no doubt concluded it would be political if they did this immediately before the election. Ridge, as he has noted in interviews, worried that a decision to raise the threat level that was motivated by politics – not intelligence -- might backfire, and the blame would fall on him and his department.

This report, by one-time United States Attorney Tom Ridge, has, in effect, broadly outlined activities that have the smell of a conspiracy to defraud the government – which is a federal crime under Title 18 of the United States Code, Section 371.

Strong Evidence of a Conspiracy to Defraud the Government

There is no more authoritative source for a succinct summary of the federal criminal code than the United State Department of Justice's "Criminal Resource Manual" (CRM), which guides the United States Attorneys throughout the country in their prosecutions. The CRM explains the crime of conspiring to defraud the government under 18 USC 371. It notes that the language of the statute is "very broad" with the cases prosecuted under it relying heavily on the definition of "defraud" provided by longstanding Supreme Court rulings in Hass v. Henkel, (1910) and Hammerschmidt v. United States (1924).

In Hass, the Court stated: "The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . [A]ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation."

In Hammerschmidt, Chief Justice Taft defined "defraud" as follows: "To conspire to defraud the United States means primarily to cheat the Government … to 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."

During the Watergate and Iran-Contra investigations, this statute was used to prosecute numerous administration and military officials. The Iran-Contra Independent Counsel, former Federal Judge Lawrence Walsh, noted in his final report that under this statute, it can be a fraud against the government, and a violation of 18 USC 371, "even when those who engage in the fraud are Government officials pursuing presidential policy."

In short, if Rumsfeld and Ashcroft agreed, during their video conference call with Ridge, that the terror threat level should be raised because it would be good for President's Bush's reelection, when they had no solid intelligence that would call for raising the threat level, then that plan could have been a conspiracy to defraud the government.

Following Rumsfeld and Ashcroft Denials, Ridge Flip-flops -- But Why?

Within twenty-four hours of Countdown's breaking this story, and not surprisingly, since it suggested criminal behavior, both Rumsfeld and Ashcroft denied Ridge's claim. That was certainly understandable. Less understandable is Ridge's subsequent action. When appearing on MSNBC's "The Rachel Maddow Show" on September 1, the official publication date of his book, Ridge did a flip-flop and disavowed his own book – or as Keith Olbermann later noted, Ridge followed in the tradition of former NBA star Charles Barkley by claiming he was misquoted in his own autobiography.

Confronted by Rachel Maddow regarding what he had written, Ridge started babbling: "At the end of the day, I am using in the book, is there more intelligence, is there something -- that is new. That is not speculation about politics. Because at no time -- at no time -- at no time did politics enter in my judgment, anybody's equation." Yet, while protesting a bit too much, he was soon telling Rachel that, in fact, politics were in his equation after all: "I'm saying that I was not pressured. I'm saying in the book, since I am the secretary, and if we do decide to raise the threat level, the consequences to oversee the enhanced security right before the election belong to my -- my departments. And I say at the end of this discussion, a vigorous discussion where people were rendering judgments in my mind based on what they think is in the best interests for the safety and the security of the country, I am using in the book, is there something else here? What am I missing? I don't get it. Is it politics? Is it security? What's driving this discussion?"

If Ridge was so sure that Rumsfeld and Ashcroft only had the best interest of the country in mind, then why did he wonder, at the time, if politics were involved? I find it difficult to believe Ridge's post-publication retraction. As the author of ten non-fiction books, I would be the first to acknowledge that mistakes do happen, but not mistakes consisting of entire sections of a book. Not mistakes in material that has been specially and uniquely italicized for emphasis. And particularly not mistakes in material that the publisher has used to sell the book by highlighting it on the book jacket copy and in advertisements – such material, after all, is typically reviewed by the author as well. Nor, if Ridge had been mistaken, would he have likely claimed -- as he has also written -- that this was the reason that he wanted to leave the Bush Administration, which he did shortly after the incident. Few people completely bollix their account of the core reason they left the most important job they ever held.

If Ridge has, in truth, misstated himself in the book (and on the jacket), he can put this controversy to rest by enlisting the denials of all those he involved at the time in dealing with the pressure to raise the threat levels -- namely, General Hughes; Jim Loy; Susan Neely, who worked for him at the Department of Homeland Security; and Dan Bartlett, who Ridge wrote was the one who enlisted the President in squelching the push by Rumsfeld and Ashcroft.

Or maybe an enterprising journalist will run these four people down and ask them about the controversy over the raising of the threat level, in order to sort out the truth. In addition, presumably there is a copy of this video conference somewhere – a piece of evidence that could also be revealing and could resolve this matter. On the other hand, if Ridge is now providing protection for what could have been criminal behavior by his former colleagues, then that is another story. That would be a cover-up – and that too, could be criminal. It would be unfortunate if Ridge, having reported criminal behavior, then thought better of it, is now embarking on his own crime.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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