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FindLaw's Writ - Dean: Why A Special Prosecutor's Investigation Is Needed To Sort Out the Niger Uranium And Related WMDs Mess

Why A Special Prosecutor's Investigation Is Needed To Sort Out the Niger Uranium And Related WMDs Mess

By JOHN W. DEAN
Friday, Jul. 18, 2003

The heart of President Bush's January 28 State of the Union address was his case for going to war against Saddam Hussein. In making his case, the President laid out fact after fact about Saddam's alleged unconventional weapons. Indeed, the claim that these WMDs posed an imminent threat was his primary argument in favor of war.

Now, as more and more time passes with WMDs still not found, it seems that some of those facts may not have been true. In particular, recent controversy has focused on the President's citations to British intelligence purportedly showing that Saddam was seeking "significant quantities of uranium from Africa."

In this column, I will examine the publicly available evidence relating to this and other statements in the State of the Union concerning Saddam's WMDs. Obviously, I do not have access to the classified information the President doubtless relied upon. But much of the relevant information he drew from appears to have been declassified, and made available for inquiring minds.

Bush repeatedly, in his State of the Union, presented beliefs, estimates, and educated guesses as established fact. Genuine facts are truths that can be known or are observable, and the distance between fact and belief is uncertainty, which can be infinite. Authentic facts are not based on hopes or wishes or even probabilities. Now it is little wonder that none of these purported WMDs has been discovered in Iraq.

So egregious and serious are Bush's misrepresentations that they appear to be a deliberate effort to mislead Congress and the public. So arrogant and secretive is the Bush White House that only a special prosecutor can effectively answer and address these troubling matters. Since the Independent Counsel statute has expired, the burden is on President Bush to appoint a special prosecutor - and if he fails to do so, he should be held accountable by Congress and the public.

In making this observation, I realize that some Republicans will pound the patriotism drum, claiming that anyone who questions Bush's call to arms is politicizing the Iraqi war. But I have no interest in partisan politics, only good government - which is in serious trouble when we stop debating these issues, or absurdly accuse those who do of treason.

As Ohio's Republican Senator Robert A. Taft, a man whose patriotism cannot be questioned, remarked less than two weeks after Pearl Harbor, "[C]riticism in time of war is essential to the maintenance of any kind of democratic government.... [T]he maintenance of the right of criticism in the long run will do the country ... more good than it will do the enemy [who might draw comfort from it], and it will prevent mistakes which might otherwise occur." (Emphasis added.)

It is in that sprit that I address Bush's troubling assertions.

A Closer Look At Bush's Facts in the State of the Union

Bush offered eight purported facts as the gist of his case for war. It appears he presented what was believed to be the strongest evidence first:

Purported Bush Fact 1: "The United Nations concluded in 1999 that Saddam Hussein had biological weapons materials sufficient to produce over 25,000 liters of anthrax - enough doses to kill several million people. He hasn't accounted for that material. He has given no evidence that he has destroyed it. "

Source: Bush cites the United Nations Special Commission [UNSCOM] 1999 Report to the UN Security Council. But most all the Report's numbers are estimates, in which UNSCOM had varying degrees of confidence.

Earlier the same month, in a January 23 document, the State Department, similarly cited the UNSCOM report, although noticeably more accurately than the President: "The UN Special Commission concluded that Iraq did not verifiably account for, at a minimum, 2160kg of growth media. This is enough to produce 26,000 liters of anthrax.." (Emphasis added.) State does not explain how it projected a thousand liters more than the president.

And two days after the State of the Union, in testimony before the Senate Foreign Relations Committee, Deputy Secretary of State Richard L. Armitage addressed the UNSCOM estimates in a more truthful light: as a reference to the" biological agent that U.N. inspectors believe Iraq produced." (Emphasis added.)

It short, in the State of the Union, the president transformed UNSCOM estimates, guesses, and approximations into a declaration of an exact amounts, which is a deception. He did the same with his statement about Botulinum toxin.

Purported Bush Fact 2: "The Union Nations concluded that Saddam Hussein had materials sufficient to produce more than 38,000 liters of botulinum toxin - enough to subject millions of people to death by respiratory failure. He hasn't accounted for that material. He has given no evidence that he has destroyed it."

Source: Bush cited the same UNSCOM Report. Again, he transformed estimates, or best guesses - based on the work of the UNSCOM inspectors and informants of uncertain reliability - into solid fact.

His own State Department more accurately referred to the same information as "belief," not fact: "Iraq declared 19,000 liters (of Botulinum toxin) [but the] UN believes it could have produced more than double that amount." (Emphasis added.)

Purported Bush Fact 3: "Our intelligence sources estimate that Saddam Hussein had the materials to produce as much as 500 tons of sarin, mustard, and VX nerve agent. In such quantities, these chemical agents also could kill untold thousands. He has not accounted for these materials."

Source: Here, at least Bush admits that he is drawing upon estimates - but this time, he leaves out other qualifiers that would have signaled the uncertainty his own "intelligence sources" felt about these purported facts. (Emphasis added.)

In October 2002, a CIA report claimed that Iraq "has begun renewed production of chemical warfare agents, probably including mustard, sarin, cyclosarin, and VX." Bush omitted the "probably." The CIA also added still more caveats: "More than 10 years after the Gulf war, gaps in Iraqi accounting and current production capabilities strongly suggest that Iraq maintains a stockpile of chemical agents, probably VX, sarin, cyclosarin, and mustard." (Emphases added.)

Purported Bush Fact 4: "U.S. intelligence indicates that Saddam Hussein had upwards of 30,000 munitions capable of delivering chemical agents. Inspectors recently turned up 16 of them, despite Iraq's recent declaration denying their existence. Saddam Hussein has not accounted for the remaining 29,984 of these prohibited munitions. He has given no evidence that he has destroyed them."

Source: Bush cites "U.S. intelligence" for this information, but it appears to have first come from UNSCOM. If so, he seems to have double the number of existing munitions that might be, as he argued "capable of delivering chemical agents."

UNSCOM's report, in its declassified portions, suggests that UNSCOM "supervised the destruction of nearly 40,000 Chemical munitions (including rockets, artillery, and Aerial bombs 28,000 of which were filled)." And UNSCOM's best estimate was that there were15,000 - not 30,000 - artillery shells unaccounted for.

The CIA's October 2002 report also acknowledges that "UNSCOM supervised the destruction of more than 40,000 chemical munitions." Yet none of its declassified documents support Bush's contention in the State of the Union that 30,000 munitions capable of delivering chemical weapons remain unaccounted for.

Where did Bush's number come from? Was it real - or invented?

Purported Bush Fact 5: "From three Iraqi defectors we know that Iraq, in the late 1990s, had several mobile biological weapons labs. These are designed to produce germ warfare agents, and can be moved from place to place to evade inspectors. Saddam Hussein has not disclosed these facilities. He has given no evidence that he has destroyed them."

Source: The three informants have still not been identified - even though the Administration now has the opportunity to offer asylum to them and their families, and then to disclose their identities, or at least enough identifying information for the public to know that they actually exist, and see why the government was prone to believe them.

Moreover, there is serious controversy as to whether the mobile weapons labs have been found. After the war, the CIA vigorously claimed two such labs had been located. But Iraqi scientists say the labs' purpose were to produce hydrogen for weather balloons. And many months later, no other Iraqi scientists - or others with reason to know - have been found to contradict their claims. Meanwhile, the State Department has publicly disputed the CIA (and DIA) claim that such weapons labs have been found.

All informant intelligence is questionable. Based on this intelligence, the President should have said that "we believe" that such labs existed - not that "we know" that they do. "Belief" opens up the possibility we could be wrong; claimed "knowledge" does not.

Purported Bush Fact 6: "The International Atomic Energy Agency confirmed in the 1990s that Saddam Hussein had an advanced nuclear weapons development program, had a design for a nuclear weapon and was working on five different methods of enriching uranium for a bomb."

Source: The IAEA did provide some information to this effect, but the IAEA's own source was Iraq itself. According to Garry B. Dillon, the 1997-99 head of IAEA's Iraq inspection team, Iraq was begrudgingly cooperating with UNSCOM and IAEA inspections until August 1998.

Moreover, a crucial qualifier was left out: Whatever the program looked like in the early or mid-1990s, by 1998, the IAEA was confident it was utterly ineffective.

As the IAEA's Dillon further reports, as of 1998, "there were no indications of Iraq having achieved its program goals of producing a nuclear weapon; nor were there any indications that there remained in Iraq any physical capability for production of amounts of weapon-usable nuclear material of any practical significance." (Emphases added)

Later, IAEA's own January 20, 2003 Update Report to the UN's Security Council reiterated the very same information Dillon had reported.

It is deceptive to report Iraq's 1990's effort at a nuclear program without also reporting that - according to a highly reliable source, the IAEA - that attempt had come to nothing as of 1998. It is even more deceptive to leave this information out and then to go on - as Bush did - to suggest that Iraq's purportedly successful nuclear program was now searching for uranium, implying it was operational when it was not.

In making this claim, Bush included his now discredited sixteen word claim.

Purported Bush Fact 7: "The British government has learned Saddam Hussein recently sought significant quantities of uranium from Africa."

Source: Media accounts have shown that the uranium story was untrue - and that at least some in the Bush Administration knew it. I will not reiterate all of the relevant news reports here, but I will highlight a few.

The Niger uranium story was reportedly removed from Bush's prior, October 7, 2002 speech because it was believed unreliable - and it certainly became no more reliable thereafter. Indeed, only days after Bush's State of the Union, Colin Powell refused to use the information in his United Nation's speech because he did not believe it reliable.

Either Bush's senior advisers were aware of this hoax, or there was a frightening breakdown at the National Security Council - which is designed to avoid such breakdowns. Neither should be the case.

In fact, it is unconscionable, under the circumstances, that the uranium fabrication was included in the State of the Union. And equally weak, if not also fake, was Bush's final point about Saddam's unconventional weapons.

Purported Bush Fact 8: "Our intelligence sources tell us that [Saddam Hussein] has attempted to purchase high strength aluminum tubes suitable for nuclear weapons production."

Source: Bush is apparently referring to the CIA's October 2002 report - but again, qualifiers were left out, to transform a statement of belief into one of purported fact.

The CIA report stated that "Iraq's aggressive attempts to obtain proscribed high-strength aluminum tubes are of significant concern.All intelligence experts agree that Iraq is seeking nuclear weapons and that these tubes could be used in a centrifuge enrichment program.Most intelligence specialists assess this to be the intended use, but some believe that these tubes are probably intended for conventional weapons programs." (Emphases added).

By January 20, 2003 the IAEA - which has more expertise than the CIA in the matter - had completed its investigation in Iraq of the aluminum tubes. It concluded that, as the Iraqi government claimed, the tubes had nothing to do with nuclear weapons, rather they were part of their rocket program.

Thus, eight days before Bush's State of the Union, the IAEA stated in its report to the Security Council, "The IAEA's analysis to date indicates that the specifications of the aluminum tubes recently sought by Iraq appear to be consistent with reverse engineering of rockets. While it would be possible to modify such tubes for the manufacture of centrifuges, they are not directly suitable for such use."

In short, Bush claimed the tubes were "suitable for nuclear weapons production" when only a week earlier, the IAEA - which had reason to know - plainly said that they were not. Today, of course, with no nuclear facilities found, it is clear that the evidence that the IAEA provided was correct.

Bush closed his WMD argument with these words: "Saddam Hussein has not credibly explained these activities. He clearly has much to hide." The he added, "The dictator of Iraq is not disarming. To the contrary, he is deceiving."

Unfortunately, it seems that Bush may have been deceiving, too. Urgent and unanswered questions surround each of the eight statements I have set forth. Questions surrounding the uranium story are only indicative, for similar questions must be asked about the other statements as well.

But so far, only the uranium claim has been acknowledged as a statement the president should not have made. Nonetheless, the White House had been stonewalling countless obvious, and pressing, questions, such as: When did Bush learn the uranium story was false, or questionable? Why did he not advise Congress until forced to do so? Who in the Bush White House continued to insist on the story's inclusion in the State of the Union address? Was Vice President Cheney involved? Who got the CIA to accept the British intelligence report, when they had doubts about it?

Bush is not the first president to make false statements to Congress when taking the nation to war. President Polk lied the nation into war with Mexico so he could acquire California as part of his Manifest Destiny. It was young Illinois Congressman Abraham Lincoln who called for a Congressional investigation of Polk's warmongering.

Lincoln accused Polk of "employing every artifice to work round, befog, and cover up" the reasons for war with Mexico. Lincoln said he was "fully convinced, of what I more than suspect already, that [Polk] is deeply conscious of being wrong." In the end, after taking the president to task, the House of Representatives passed a resolution stating that the war with Mexico had been "unnecessary and unconstitutionally commenced by the President."

Not unlike Polk, Bush is currently hanging onto a very weak legal thread - claiming his statement about the Niger uranium was technically correct because he said he was relying on the British report. But that makes little difference: if Bush knew the British statement was likely wrong, then he knowingly made a false statement to Congress. One can't hide behind a source one invokes knowing it doesn't hold water.

Because Bush has more problems than his deceptive statement about Niger uranium, Congressman Lincoln's statement to Polk echoes through history with particular relevance for Bush: "Let him answer fully, fairly and candidly. Let him answer with facts and not with arguments. . . . Let him attempt no evasion, no equivocation."

It Is A Crime To Make False Statements To Congress

Could Bush, and his aides, be stonewalling because it is a crime to give false information to Congress? It wasn't a crime in President Polk's day. Today, it is a felony under the false statements statute.

Two members of the Bush administration, Admiral John Poindexter and Elliot Abrams, learned about this false statements law the hard way, during the Iran Contra investigation. Abrams pled guilty to two misdemeanors for false statements to Congress, as did Robert McFarlane. (Both were subsequently pardoned by President George H.W. Bush.) Poindexter and Oliver North fought the charges, and won on an unrelated legal technicality.

Later, one of McFarlane's lawyers, Peter W. Morgan, wrote a law journal article about using the false statements statute to prosecute executive officials appearing before Congress. Morgan was troubled by the breadth of the law. It does not require a specific intent to deceive the Congress. It does not require that statements be written, or that they be sworn. Congress is aware of the law's breadth and has chosen not to change it.

Maybe presciently, Morgan noted that the false statements statute even reaches "misrepresentations in a president's state of the union address." To which I would add, a criminal conspiracy to mislead Congress, which involved others at the Bush White House, could also be prosecuted under a separate statute, which makes it a felony to conspire to defraud the government.

Need for A Special Prosecutor To Investigate the WMD Claims

There is an unsavory stench about Bush's claims to the Congress, and nation, about Saddam Hussein's WMD threat. The deceptions are too apparent. There are simply too many unanswered questions, which have been growing daily. If the Independent Counsel law were still in existence, this situation would justify the appointment of an Independent Counsel.

Because that law has expired, if President Bush truly has nothing to hide, he should appoint a special prosecutor. After all, Presidents Nixon and Clinton, when not subject to the Independent Counsel law, appointed special prosecutors to investigate matters much less serious. If President Bush is truly the square shooter he portrays himself to be, he should appoint a special prosecutor to undertake an investigation.

Ideally, the investigation ought to be concluded - and the issue cleared up - well before the 2004 election, so voters know the character of the men (and women) they may or may not be re-electing.

Family, loved ones, and friends of those who have died, and continue to die, in Iraq deserve no less.

See Related Article: Missing Weapons Of Mass Destruction:
Is Lying About The Reason For War An Impeachable Offense?

by John Dean (6/6/2003)


John W. Dean, a FindLaw columnist, is a former counsel to the President. The author thanks Richard Leone for the quote from Senator Taft, which is drawn from his newly-released work The War On Our Freedoms. He also thanks Professor Stanley I. Kutler for the quote of Congressman Lincoln demanding that President Polk answer without evasion or equivocation.

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