Bush's Uranium Lies: The Case For A Special
Prosecutor That Could Lead To Impeachment
by Francis T. Mandanici
Wednesday, 29 June 2005
Some have observed that the Bush Administration's claims that Iraq
had weapons of mass destruction were not just good faith mistakes
but actual lies. Some have even recently compared President Bush's
false claims about Iraq to the Watergate scandal that led to
President Nixon's resignation. See Truth And Deceit by Bob Herbert
and Don't Follow the Money by Frank Rich in The New York Times, June
2, 12, 2005. Some, such as the organizations AfterDowningStreet and
DemocracyRising.US, have even called for the initiation of
impeachment proceedings based in part on the Downing Street Memo
that revealed that according to a British intelligence official the
Bush Administration prior to the war against Iraq fixed the
intelligence and facts to justify the war.[1]
In response to press reports on the Downing Street Memo, Congressman
John Conyers and 90 other Congressional Democrats in a May 5 letter
to President Bush asked him if there was a coordinated effort to fix
the intelligence and facts to justify the war.[2] Congressman
Conyers and other Congressional Democrats on June 16 held an
unofficial hearing concerning the Downing Street Memo that resembled
an impeachment inquiry.
Although the Downing Street Memo clearly raises serious questions
about President Bush's honesty about Iraq and some claim it to be a
smoking gun, it pales in comparison to the public record that
already exists concerning his specific claim that Iraq had sought
uranium for a nuclear weapon, which he presented as a key reason to
justify the war rather than wait for United Nations weapons
inspectors to finish their work. When the dots in the public record
are connected on that matter, including a close analysis of
Congressional investigative reports and resolutions, there is a
strong case that President Bush and senior members of his
Administration made fraudulent claims to Congress. Since criminal
statutes prohibit making fraudulent statements to Congress and
obstructing its functions, the Justice Department should pursuant to
its regulations appoint an outside special counsel. A specific
motive for the uranium claims that the Administration made would
have been to thwart the efforts of Congress and the UN to delay the
start of the war. The current public record is as strong as the
Starr Report that commenced the impeachment proceedings against
President Clinton and is surely strong enough to require the initial
appointment of a special counsel to conduct a criminal
investigation. Such a special counsel investigation could then lead
to impeachment proceedings, as well as expand to cover other
possible fraudulent claims.
President Bush and his senior officials made five uranium claims,
which along with other claims were catalogued and analyzed in the
report Iraq On The Record (IR) that was prepared by the Minority
Staff of the House Committee On Government Reform and released on
March 16, 2004.[3]
Concerning the uranium claims, that report including its database
states that (1) President Bush on January 20, 2003 told Congress
that Iraq's disclosure to the UN (which was supposed to reveal all
of Iraq's weapons of mass destruction) "failed to deal with issues
which have arisen since 1998, including ... attempts to acquire
uranium and the means to enrich it"; (2) President Bush on January
28, 2003 in his State of the Union Address told Congress that
the "British government has learned that Saddam Hussein recently
sought significant quantities of uranium from Africa"; (3) then
National Security Advisor and now Secretary of State Condoleezza
Rice on January 23, 2003 in an op-ed article stated that Iraq's
disclosure to the UN "fail(ed) to account for or explain Iraq's
efforts to get uranium from abroad"; (4) then Secretary of State
Colin Powell on January 26, 2003 in a speech stated "Why is Iraq
still trying to procure uranium and the special equipment needed to
transform it into material for nuclear weapons?"; and (5) Secretary
of Defense Donald Rumsfeld on January 29, 2003 at a press conference
stated that Hussein's "regime has the design for a nuclear weapon,
was working on several different methods of enriching uranium, and
recently was discovered seeking significant quantities of uranium
from Africa." IR pp. 13-15, and IR Database (Speaker: All; Keyword:
uranium; Subject: Nuclear Capabilities; choose Show All). All five
uranium statements were made within a nine-day period between
January 20 and 29, 2003.
Furthermore President Bush's above two uranium claims are in
documents that he submitted to Congress. President Bush's 2003
State of the Union Address that he gave to Congress is labeled House
Document 108-1.[4] The report Iraq On The Record quotes the
sentence concerning uranium in President Bush's State of the Union
Address but the prior sentence is also important since it mentions
the purpose for the uranium. As shown by the document President
Bush told Congress that the UN's International Atomic Energy Agency
(IAEA) confirmed in the 1990's 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. The British government has learned that Saddam
Hussein recently sought significant quantities of uranium from
Africa ."
The statement that President Bush made to Congress on January 20,
2003 that Iraq's report to the UN "failed to deal with issues which
have arisen since 1998, including ... attempts to acquire uranium
and the means to enrich it" was made in a report that President Bush
submitted to Congress that is labeled House Document 108-23.[5]
After the above sentence, President Bush reported to Congress: "In
short, we have not seen anything that indicates that the Iraqi
regime has made a strategic decision to disarm. On the contrary, we
believe that Iraq is actively working to disrupt, deny, and defeat
(UN) inspection efforts." Public Law 107-243, which was the war
resolution that Congress passed earlier in October 2002 authorizing
President Bush to use military force in Iraq, required President
Bush to submit the above report.
The report Iraq On The Record states that all of the Bush
Administration's above uranium claims were misleading. IR pp. 3, 13-
15. Concerning the importance of the claims the report
states: "Another significant component of the Administration's
nuclear claims was the assertion that Iraq had sought to import
uranium from Africa . As one of few new pieces of intelligence, this
claim was repeated multiple times by Administration officials as
proof that Iraq had reconstituted its nuclear weapons program." IR
p. 13 (emphasis added).
The report further states that the above officials (President Bush,
Secretary Rumsfeld, Secretary Powell and National Security Advisor
Rice) who made the uranium claims and Vice President Richard Cheney
made a total of 237 misleading statements about the threat that Iraq
posed (including the above mentioned uranium claims). IR pp. ii,
3. The statements started on March 17, 2002, which was one year
before the start of the war. IR pp. ii, 3. Most (161) of the
misleading statements were made prior to the war while 76 misleading
statements were made after the war started to justify the decision
to go to war. IR pp. ii, 3-4. The 237 misleading statements
covered four areas: statements that Iraq posed an urgent threat,
statements about Iraq 's nuclear capabilities (such as the uranium
claims), statements about Iraq 's chemical and biological weapons
programs, and statements about Iraq 's support for al Qaeda. IR p.
6. Minus the 51 misleading statements of Vice President Cheney, the
other four officials who made the misleading uranium claims made a
total of 186 misleading statements. IR pp. 3, 26.
As observed in Iraq On The Record, the "Administration's statements
about Iraq 's nuclear capabilities had a large impact on
congressional and public perceptions about the threat posed by
Iraq ." IR p. 8. The most glaring examples of the misleading
statements are the above five uranium claims, which are discussed
herein.
The report Iraq On The Record states that the uranium claims were
misleading because the Central Intelligence Agency had earlier
expressed doubts about the claim in two memos to the White House
including one addressed to then National Security Advisor Rice, and
the then CIA Director George Tenet argued personally against using
the claim in a telephone call to Rice's deputy, Stephen Hadley. IR
pp. 14-15, and IR Database (Speaker: All; Keyword: uranium; Subject:
Nuclear Capabilities; choose Show All).
In addition to Iraq On The Record, the full Senate Select Committee
On Intelligence released on July 7, 2004 an investigative report
entitled Report On The U.S. Intelligence Community's Prewar
Intelligence Assessments On Iraq (SR).[6] That report cites
President Bush's above two uranium statements and Secretary Powell's
uranium statement, SR pp. 63-64, 66, and reveals many more details
of what President Bush and his senior officials did not disclose.
President Bush and his senior officials made their uranium claims in
January 2003, and the Senate report mentions that some in the
American intelligence community including in the CIA had believed
the uranium claim. SR pp. 47, 52, 62. Also the report states that
the CIA had actually cleared two proposed presidential speeches that
the White House's National Security Council (NSC) had sent to the
CIA in September 2002 that contained the claims that Iraq was caught
trying to purchase 500 tons of uranium and that Iraq had sought
large amounts of uranium from Africa. SR pp. 49, 51. President
Bush did not use the approved language publicly. SR pp. 49, 51.
The Senate report states that the British government on September
24, 2002 published a White Paper stating that "there is intelligence
that Iraq has sought the supply of significant quantities of uranium
from Africa ." SR p. 50. The above information in British White
Paper did not state that the attempt was recent.
The Senate report then reveals that a CIA analyst in September 2002
suggested to a staff member of the White House's NSC that the White
House remove from a proposed speech the claim that Iraq attempted to
acquire uranium from Africa . SR p. 51. According to the CIA
analyst the NSC staff member responded by stating that removing the
claim would leave the British "flapping in the wind." SR p. 51.
The Senate report reveals that in October 2002, the White House's
NSC sent to the CIA a draft of a speech that President Bush was to
give in Cincinnati that contained the statement that Iraq had been
caught attempting to purchase up to 500 tons of uranium from
Africa. SR p. 55. Due to the concerns expressed by a CIA Iraq
nuclear analyst, the CIA's Associate Deputy Director for
Intelligence faxed a memo to the Deputy National Security Advisor
(Hadley) and to the speechwriters suggesting that they remove the
uranium claim from the speech because the amount was in dispute, the
claim was debatable, the CIA had told Congress that the British had
exaggerated the issue, and Iraq already had 500 tons of uranium in
its inventory. SR pp. 55-56. (The reference to telling Congress
would be to certain select intelligence committees that cannot
divulge the secret information to all members of Congress).
The NSC then sent to the CIA another draft of the speech containing
a revised statement that Iraq had been caught attempting to purchase
substantial amounts of uranium from Africa . SR p. 56. The CIA's
Associate Deputy Director believed that the NSC had not addressed
the uranium information in its later draft and alerted the CIA
Director (Tenet). SR p. 56. The CIA Director responded by telling
the Deputy National Security Advisor (Hadley) that President Bush
should not provide any facts on the issue in the speech because CIA
analysts told him that the "reporting (on the uranium claim) was
weak". SR p. 56. After the White House's NSC removed the claim
from the speech, the CIA sent a second fax to the White House
stating the "evidence (on the claim) is weak". SR p. 56. On
October 7, 2002, President Bush delivered his speech in Cincinnati
and kept out the uranium claim. SR p. 57.
The Senate report states that the CIA on October 11, 2002 received
copies of documents that supposedly supported the claim that Iraq
had a deal to obtain uranium from Africa . SR p. 58. On January
13, 2003 (which was before the first above mentioned uranium claim
of January 20, 2003), the Iraq nuclear analyst for the State
Department's intelligence bureau (INR) sent an e-mail to several
American intelligence community analysts outlining the reasons why
he believed that the document supposedly supporting the uranium deal
was probably a "hoax" and a "forgery". SR p. 62.
After the State Department's intelligence bureau alerted the CIA and
Defense Intelligence Agency about the problems with the documents,
said agencies published assessments that, as summarized in the
Senate report, stated that " Iraq may have been seeking uranium from
Africa ." SR pp. 77, 62, 64 (emphasis added).
Concerning the State of the Union Address of January 28, 2003, the
Senate report reveals that a NSC official at the White House and a
CIA official discussed the draft of that speech that the White House
had sent to the CIA that stated "we know that (Hussein) has recently
sought to buy uranium in Africa ." SR pp. 64-65 (emphasis added).
The final draft that President Bush actually gave was that
the "British government has learned that Saddam Hussein recently
sought significant quantities of uranium from Africa ." SR p. 66
(emphasis added). Both officials stated that there was never a
discussion on the credibility of the reporting. SR pp. 65-66. 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. SR pp. 65-
66. However, the original draft that the White House sent
apparently did not name any source for America 's knowledge but
merely said `we'. There was really no need to further identify any
sources. Concerning other claims against Hussein, President Bush
in his speech actually used the phrase `intelligence sources'
without providing any specifics on the sources.[7]
Thus it might be argued that the forgotten reason why the switch was
made from "we know" to the "British government has learned" was that
the CIA was not really comfortable with the "we know" especially
since that might include the CIA Director who had previously told
the White House that the President should not make any uranium claim
because CIA analysts believed it was weak. It is plausible that the
CIA became comfortable with the speech only when it was changed and
merely repeated what the British had stated rather than what the CIA
Director knew. The CIA official had originally told the Senate
committee that he had told the White House official to remove parts
of the draft that contained the words "Niger" and "500 tons" because
of concerns about the sources and methods but he later recanted that
claim since such words were not in the draft of the speech. SR p.
65.
The Senate report also states that according to the National
Intelligence Officer (NIO), on January 24, 2003 the NSC "believed
the nuclear case (against Iraq ) was weak" and requested additional
information from the intelligence community. SR p. 240. The
intelligence officer then provided the NSC with portions of the
earlier October 2002 National Intelligence Estimate (NIE), which
mentioned that Iraq had vigorously tried to procure uranium and
which according to the intelligence officer "outlined possible
uranium acquisition attempts in Niger , Somalia , and possibly the
Congo ." SR p. 240. However, the NSC members would have had the NIE
report for months and would have already read it. The NIE contained
the opinion of the State Department's intelligence bureau that "the
claims of Iraqi pursuit of natural uranium from Africa are ...
highly dubious." SR pp. 53-54. Thus no additional information was
provided that would change the weak nuclear case against Iraq
concerning the uranium claim.
President Bush chairs the NSC as President, and the other key
members of the NSC include the Secretary of Defense, the Secretary
of State, and the National Security Advisor. Thus the very people
who were claiming in January 2003 that Iraq had sought uranium were
the key members of a council that believed in January 2003 that the
nuclear case against Iraq was weak.
The Senate report also states that after President Bush told the
American Congress on January 28, 2003 that the British had learned
that Iraq had recently sought significant quantities of uranium from
Africa, the American government a few days later on February 4, 2003
privately told the UN's IAEA that it "cannot confirm (the uranium)
reports". SR pp. 67-68. On that date the American government gave
the IAEA copies of documents that supposedly supported the claim
that Iraq attempted to acquire the uranium. SR p. 67. On March 3,
2003, the IAEA told the American government that the documents were
forgeries. SR p. 69.
After the United States on February 4, 2003 gave the IAEA the forged
documents along with the warning that the uranium reports could not
be confirmed, it does not appear that the Bush Administration ever
again risked making the public claim that Iraq had attempted to
acquire uranium from Africa . The next day on February 5 Secretary
of State Powell gave a speech to the UN in which he did not make any
uranium claims but as noted above he had made a uranium claim in an
earlier speech on January 26, 2003. SR pp. 68, 64.
According to the presidential commission, the Commission On The
Intelligence Capabilities Of The United States Regarding Weapons Of
Mass Destruction and its report released on March 31, 2005 (PCR),
Secretary of State Powell during meetings at the CIA to vet his UN
speech was informed that there were doubts about the reporting on
the Niger uranium matter and he did not include it in his speech for
that reason. PCR p. 213, note 210.[8] Thus the Bush
Administration stopped using the uranium claim the day after the
IAEA obtained possession of the forged documents that supposedly
supported the claim.
Approximately two weeks after the IAEA told the Bush Administration
that the documents were forgeries, the Bush Administration on March
19, 2003 commenced the war against Iraq . According to the
presidential commission, the Iraq Survey Group that conducted
investigations after the United States commenced the war "found no
evidence that Iraq sought uranium from abroad after 1991." PCR p.
64.
President Bush and his senior officials had a motive for their
misleading uranium claims that they made in late January 2003 - they
needed to maintain support for the war and to thwart efforts of
Congress and the UN to delay the start of the war. Although
President Bush and said officials had obtained the Congressional
resolution for the war against Iraq in October 2002, they did not
start the war until five months later in March 2003 and during that
five months they needed to maintain support for the war resolution
that Congress could have withdrawn if Congress believed that the
purpose of the resolution had been accomplished. The war resolution
had not been unanimous, the vote in the House had been 296 to 133,
and the vote in the Senate had been 77 to 23, and the resolution had
strings attached. The resolution, Public Law 107-243, Sec. 4,
stated that the "President shall, at least once every 60 days,
submit to Congress a report on matters relevant to this joint
resolution".
One of the grounds for the war resolution was that
international weapons inspectors had left Iraq in 1998 because Iraq
had thwarted their efforts, and another ground was the belief of
Congress that Iraq was "actively seeking a nuclear weapons
capability". As observed in Iraq On The Record, the Bush
Administration's barrage of misleading statements about Iraq 's
nuclear capabilities had a "large impact on congressional and public
perceptions about the threat posed by Iraq ." IR p. 8.
After Congress passed the war resolution, the UN Security Council on
November 8, 2002 passed Resolution 1441 that demanded a declaration
by Iraq of all its chemical, biological and nuclear weapons and
programs, and which also set forth an enhanced weapons inspections
regimen in Iraq that gave inspectors unrestricted access to any
sites and buildings as well as the right to remove and or destroy
any prohibited weapons.[9] The resolution stated that if Iraq
provided a false declaration and did not cooperate then there could
be serious consequences.
Iraq then agreed to the resolution and on November 27, 2002 allowed
UN weapons inspectors to reenter Iraq , and on December 7 Iraq
provided a declaration that it had no weapons of mass destruction or
programs.
According to Bob Woodward's Plan Of Attack, p. 253, in the first
week of January 2003 President Bush discussed with then National
Security Advisor Rice the loss of support for the war. According to
Woodward the press reports of Iraqis cooperating with UN weapons
inspectors by opening up buildings "infuriated" President Bush who
believed in Woodward's words that the "unanimous international
consensus of the November (UN) resolution was beginning to fray."
President Bush told Rice that the "pressure isn't holding
together". President Bush also commented about the antiwar protests
in the United States and Europe .
On January 27, 2003, which was the day before President Bush gave
his State of the Union Address to Congress in which he claimed that
Iraq had recently sought significant quantities of uranium from
Africa, the UN issued a press release stating that "it would appear
that Iraq had decided in principle to provide cooperation on
substance in order to complete the disarmament task through
inspection."[10] Although there were some outstanding issues and
questions concerning chemical and biological weapons, the press
release stated regarding nuclear weapons that the UN weapons
inspectors had reported that after 60 days of inspections with a
total of 139 inspections at 106 locations they had found "no
evidence that Iraq had revived its nuclear weapons programme"
and "no prohibited nuclear activities had been identified". The
press release stated that the inspectors had investigated the claim
that Iraq had sought to import uranium and that the Iraqis denied
the claim but the inspectors would continue to pursue the matter.
The UN press release concluded with the UN chief nuclear weapons
inspector's statement that "With our verification system now in
place, barring exceptional circumstances, and provided there is
sustained proactive cooperation by Iraq , we should be able, within
the next few months, to provide credible assurance that Iraq has no
nuclear weapons programme. These few months would be a valuable
investment in peace because they could help us avoid a war."
In response to the fact that Iraq had allowed UN weapons inspectors
to reenter Iraq and in apparent response to the same press reports
that President Bush read, five members of Congress on January 7,
2003 submitted a resolution, H.Con.Res.2, which expressed the sense
of Congress that Congress should repeal the war resolution in order
to allow more time for the UN weapons inspections.[11] The new
resolution contended that the threat posed by Iraq had lessened
because after the war resolution was passed Iraq then "allowed
international weapons inspectors to re-enter Iraq in order to
identify and destroy Iraq's weapons of mass destruction stockpiles
and development capabilities." The new resolution stated "Congress
should reexamine the threat posed by Iraq , including by allowing
time to review fully and accurately the findings of the
international weapons inspectors". As of February 25, 2003, seven
more members of Congress signed onto the resolution as cosponsors.
The Bush White House would certainly have learned about the new
resolution since, according to Woodward's Plan of Attack, pp. 137,
171, the White House has a congressional relations office that it
runs like an intelligence agency and which has 25 people who monitor
everything in Congress including closed-door briefings.
Also, according to Woodward's Plan of Attack, p. 286, in January
2003 the Bush White House "was planning a big rollout of speeches
and documents to counter Saddam and the growing international
antiwar movement."
On February 5, 2003, thirty members of Congress submitted another
resolution, H.J.Res.20, to actually repeal the war resolution.[12]
Prior to the start of the war on March 19, 2003, eight more members
of Congress signed onto the February 5 resolution to repeal the
earlier war resolution, bringing the total to thirty-eight members
of Congress who supported the repeal resolution since it had been
introduced.
Thus during the nine-day period of January 20 to 29, 2003 when
President Bush submitted the above reports to Congress and his
senior officials made their speeches and statements about the
uranium, they were facing and apparently infuriated by Iraq's
cooperation with UN Resolution 1441. More specifically, when
President Bush submitted his State of The Union Address to Congress
on January 28, 2003 in which he claimed that Iraq had recently
sought significant quantities of uranium from Africa, he was
obviously aware of the fact that the UN had issued a press release
the previous day stating that Iraq was cooperating with UN weapons
inspectors and that after 60 days of inspections the weapons
inspectors had found no evidence that Iraq had revived its nuclear
program.
More significantly, when President Bush and his senior official made
their uranium claims between January 20 and 29 there was pending the
Congressional resolution of January 7 that suggested that the
purpose of the war resolution had been achieved because Iraq had
allowed weapons inspectors to reenter Iraq to make inspections as
well as to destroy any weapons of mass destruction. As mentioned
earlier, one of the grounds for the war resolution was that weapons
inspectors had left Iraq in 1998 because Iraq had thwarted their
efforts. Another ground was the belief of Congress that Iraq was
actively seeking a nuclear weapons capability. Thus many in
Congress who had voted for the war resolution might now actually
claim victory and declare that Hussein had surrendered, perhaps not
to an invading army but to the UN and if he flinched then he would
face that army.
Thus to thwart the UN and Congressional efforts to delay the start
of the war, President Bush and said officials needed to show that
Iraq posed an immediate threat and that the UN weapons inspections
were not working. Although they were the key members of the NSC
which believed that the nuclear case against Iraq was weak,
President Bush and his said senior officials in January 2003 in
order to deceive the UN and Congress into believing that the nuclear
case against Iraq was actually strong twisted the unconfirmed
uranium reports into unquestioned evidence that would surely scare
everyone. According to President Bush and his senior officials they
might not have found a smoking gun but they did have evidence that
Iraq had an advanced nuclear weapons development program, had a
design for a nuclear weapon and just recently sought the fuel that
could without further delay ignite such a weapon that would produce
a mushroom cloud over America. To persuade Congress that the UN
weapons inspections approach was not working, President Bush in his
report to Congress, House Document 108-23, told Congress that Iraq
was defeating the inspection process by not disclosing its attempts
to acquire uranium, and a few days later in his State of the Union
Address, House Document 108-1, he told Congress that the British had
learned that Iraq had sought that uranium. The uranium claim had an
impact on Congress because it was "one of few new pieces of
intelligence" and the Administration offered it "as proof that Iraq
had reconstituted its nuclear weapons program." IR p. 13 (emphasis
added).
President Bush and his senior officials kept using the uranium claim
until a few days prior to February 4, 2003 when the American
government handed over to the UN the supporting documents that were
found to be forgeries and actually told the UN that the uranium
reports could not be confirmed. Approximately two weeks after the
UN told the American government that the documents were forgeries,
President Bush on March 19, 2003 started the war rather than allow
the UN weapons inspectors to finish their work.
Some have described the Bush Administration's uranium claims as
deceptive and misleading, which implies that the claims were perhaps
criminal. In a statement issued January 25, 2005 involving the
confirmation hearings of now Secretary of State Rice, Senator Carl
Levin who is a member of the Senate Select Committee On Intelligence
criticized the uranium claim that President Bush made in his 2003
State of the Union Address to Congress.[13] Senator Levin stated
that the CIA received the original draft of the speech that asserted
the purported American view that Iraq had sought uranium and that
did not mention the British. A senior CIA staff member then called
the NSC to repeat its concerns about the allegation. Senator Levin
stated that the NSC and White House instead of removing the text
from the speech "changed the text to make reference to the British
view, suggesting, of course, that the US believed the British view
to be accurate." Senator Levin stated that this was a "formula
(that) was highly deceptive" since the "only reason" to say that the
British learned that Iraq was seeking uranium from Africa "was to
create the impression that we believed it" although "we actually did
not believe" it. Senator Levin noted Secretary Rice's above op-ed
article and stated that she was "responsible for her own
distortions" and that she "distorted the facts and the intelligence
provided to her to help convince the American public of the need to
go to war." Senator Levin complained that no one in the Bush
Administration was held accountable.
The report Iraq On The Record that concluded that the Bush
Administration's above uranium claims were misleading defined a
statement as misleading "if it conflicted with what intelligence
officials knew at the time or involved the selective use of
intelligence or the failure to include essential qualifiers or
caveats." IR p. 2.
Such misleading statements can be considered actually fraudulent
since legal cases hold that a statement is fraudulent if it is
misleading, conveys a false impression, contains half-truths, and
discloses favorable information but omits unfavorable information.
The legal treatise Corpus Juris Secundum (Fraud, Sec. 2) states that
fraud is "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." That treatise also states that "(f)
raudulent misrepresentation may be effected by 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." Fraud, Sec.
24.
The uranium claims that President Bush and his senior officials made
were fraudulent statements because although some in the American
intelligence community including in the CIA somewhat agreed with the
British about the uranium and that "Iraq may have been seeking
uranium from Africa", SR p. 77 (emphasis added), President Bush and
his senior officials did not tell the whole truth consisting of the
contrary views held by prominent American intelligence officials.
Nor did President Bush and his senior officials use the weak
word `may' but rather used much stronger and unqualified words such
as when President Bush stated that the "British government has
learned that Saddam Hussein recently sought significant quantities
of uranium from Africa ."
Furthermore, the statements that President Bush and Secretary
Rumsfeld made on January 28 and 29, 2003 that Iraq recently
attempted to acquire uranium, and the statement that Secretary
Powell made on January 26, 2003 that Iraq was still trying to
acquire uranium were actually false in that there was no evidence
that Iraq had recently sought uranium. The British White Paper did
not provide any information concerning the timing of the alleged
attempt. SR p. 50.
The Bush Administration's uranium claims were not only false and
fraudulent claims but were arguably actual crimes. Concerning the
two uranium claims that President Bush made directly to Congress,
the criminal statute 18 U.S.C., Sec. 1001(a) states that "whoever,
in any matter within the jurisdiction of the executive, legislative,
or judicial branch of the Government of the United States, knowingly
and willfully - (1) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact; (2) makes any materially false,
fictitious, or fraudulent statement or representation; or (3) makes
or uses any false writing or document knowing the same to contain
any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years,
or both." (Emphasis added.) However, the statute does not prohibit
all false and fraudulent statements to Congress but only those made
under certain circumstances, such as statements
involving "administrative matters ... or a document required by law,
rule or regulation to be submitted to the Congress".
The statute covers the statement that President Bush made on January
20, 2003 to Congress since that statement was made in a report that
the Congressional war resolution required. The war resolution,
Public Law 107-243, Sec. 4, states that the "President shall, at
least once every 60 days, submit to the Congress a report on matters
relevant to this joint resolution". President Bush in his said
report actually mentioned that he was making the report "(p)ursuant"
to Public Law 107-243 and that he was "providing a report prepared
by (his) Administration on matters relevant to that Resolution".
President Bush's uranium claim was relevant to the part of the war
resolution that expressed the belief of Congress that Iraq
was "actively seeking a nuclear weapons capability". The uranium
claims buttressed that belief. President Bush's report to Congress
is labeled House Document 108-23.
The statute also covers the statement that President Bush gave on
January 28, 2003 in his State of the Union Address since Article II,
Section 3 of the United States constitution requires the President
to give a State of the Union Address to Congress. That
constitutional provision states that the President "shall from time
to time give to the Congress Information of the State of the Union ,
and recommend to their Consideration such Measures as he shall judge
necessary and expedient". President Bush's 2003 State of the Union
Address is a document since a document according to Merriam-
Webster's Collegiate Dictionary is a "writing conveying
information". Presidents hand the State of the Union Address to the
Speaker of the House and Vice President. President Bush's 2003
State of the Union Address is labeled House Document 108-1.
President Bush's uranium claims arguably violated Section 1001
because both claims were fraudulent and one was actually false. In
his January 28 State of the Union Address President Bush stated that
the attempt to acquire uranium was recent but that was a false claim
since there was no evidence that the attempt was recent. President
Bush's basic uranium claims in that Address and in his January 20
report to Congress were fraudulent claims because he did not provide
Congress with the whole truth. As mentioned earlier, legal cases
and treatises hold that a statement is fraudulent if it is
misleading or contains half-truths. As Senator Levin stated, the
formula that President Bush used in his State of the Union Address
was a "formula (that) was highly deceptive". The report Iraq On The
Record described President Bush's uranium statements as misleading.
IR pp. 13-15.
Concerning all five uranium claims that President Bush and his
senior officials made, the criminal statute 18 U.S.C., Sec. 371
states: "If two or more persons conspire ... to defraud the United
States ... in any manner or for any purpose, and one or more of such
persons do any act to effect the object of the conspiracy, each
shall be fined under this title or imprisoned not more than five
years, or both." The Supreme Court in the case of Hammerschmidt v.
United States, 265 U.S. 182, 188 (1924) held that to "conspire to
defraud the United States means primarily to cheat the government
out of property or money, but it also means to interfere with or
obstruct one of its lawful governmental functions by deceit, craft
or trickery, or at least by means that are dishonest." This statute
does not restrict its application to documents that are required to
be given to Congress nor does it require proof that the conspiracy
was successful.
The Administration's five uranium claims arguably violated Section
371 because the claims had the effect of obstructing or interfering
with the function of Congress to reconsider its war resolution and
to allow further time for UN weapons inspections. Some claims were
made directly to Congress in reports while other claims were made
indirectly to Congress in public statements to counter Iraq 's
cooperation with UN weapons inspectors, which was the basis for the
Congressional resolution that sought a delay in the start of the
war. If President Bush and his senior officials had told the whole
truth surrounding their uranium claims, including telling Congress
what the American CIA Director told the White House, what Secretary
Powell was told during meetings at the CIA, what the American
government privately told the UN, and what the NSC believed, then
their half-truths about the uranium or what the British believed
would have lost their effect. If they had only stated that " Iraq
may have been seeking uranium from Africa ", then no one would have
paid attention. If the whole truth had been told, Congress might
have withdrawn the war resolution or delayed the start of the war to
allow further UN weapons inspections, which would have shown what we
now know which is that Iraq had no weapons of mass destruction nor
had sought the uranium.
Of course President Bush and his senior officials will claim
ignorance as a defense and that they are not accountable for their
own statements. But few convictions are based on confessions but
rather most convictions are based on circumstantial evidence. The
public record has overwhelming circumstantial evidence concerning
their knowledge of the whole truth and the reasons why they did not
tell it. There is also the evidence of their pattern of misconduct
consisting of their 186 misleading statements on the threat posed by
Iraq . Rule 404(b) of the Federal Rules of Evidence allows the
admission of evidence of other crimes, wrongs or acts for the
purpose of establishing "motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident".
(Emphasis added.) A few mistakes might be plausible but 186
mistakes would be absurd. So many misleading statements clearly
reveal a plan of deception.
The circumstantial evidence now includes the Downing Street Memo.
President Bush and his senior officials can no longer claim with any
believability that they just received and analyzed the intelligence
but now must explain why their British ally believed that they fixed
the intelligence to justify the war.
Rather than wait to see if President Bush and his senior officials
will again mislead our nation into war possibly against Iran or
North Korea , it is necessary to hold them accountable now for their
misleading statements that led us to war against Iraq . The public
record is compelling enough to require the Justice Department to
appoint an outside special counsel to commence a criminal
investigation on the five fraudulent uranium claims. The Department
has a regulation, 28 CFR, Sec. 600.1, under which it can appoint an
outside special counsel when it has a conflict of interest.
Prior to the independent counsel law, the Nixon Administration felt
enough pressure to appoint Archibald Cox as an outside special
prosecutor to investigate the Watergate scandal. Prior to the
reenactment of the independent counsel law under which courts
appointed independent counsels such as Kenneth Starr, then Attorney
General Janet Reno felt enough pressure to appoint under the above
Justice Department regulation Robert Fiske as an outside special
counsel to investigate the Whitewater matter. Although the
independent counsel law has now expired, the Bush Justice Department
felt enough pressure to appoint a current United States Attorney,
Patrick Fitzgerald, as a type of special prosecutor to investigate
the leak of the name of a CIA agent, who happened to be the wife of
Joseph Wilson who in an op-ed article published in The New York
Times on July 6, 2003 was the first person to publicly challenge
President Bush's claim that Iraq had sought uranium. See The
Politics of Truth by Joseph Wilson.
The new special counsel could base an investigation on the Watergate
mantra of what did the President and his top officials know and when
did they know it, as well as why did they say it. Certainly any
such violations of the above criminal statutes would necessitate not
only a criminal prosecution by the special counsel but also
impeachment proceedings by Congress.
Francis T. Mandanici
The author is a lawyer in Connecticut . In 1968 he graduated from
Fairfield University where he wrote a lengthy paper on the
unconstitutionality of the Vietnam War. From 1968 to 1970 he served
in the Peace Corps as a rural community development worker in Roi Et
Province in northeast Thailand . He was a public defender for 18
years. In the late 1990's he filed a series of ethical grievances
against independent counsel Kenneth Starr. Of the four judges who
addressed the merits of his grievances, two of the four agreed that
Starr suffered from the appearance of a conflict of interest that
should be investigated. The judge who dismissed his last grievance
and ridiculed him also a few days later dismissed an ethics
complaint that 6 federal judges had filed against Starr's office.
That complaint and its dismissal were kept secret until after the
2000 presidential elections when Robert Ray revealed the matter in
his final independent counsel report. Go to
http://icreport.access.gpo.gov/lewinsky.html (pages 109-112, 140).
The author's summary of his grievances and the statements of the
judges who agreed with him can be found in the Comments section at
the end of Ray's report, pages 195-222.
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[1] The Downing Street Memo is available on the website of
AfterDowningStreet at www.afterdowningstreet.org. See also the
website of DemocracyRising.US at www.democracyrising.us/.
[2] The letter is on the website of House Judiciary Committee
Democrats. Go to www.house.gov/judiciary_democrats/ and choose
Latest News, May 5, 2005 Text of Letter from Democratic Members
Calling on the President to Answer Questions Concerning the "Secret
Downing Street memo".
[3] The report is on the website of the House Reform Committee
Democrats. Go to www.democrats.reform.house.gov/ and on the right
side choose Iraq On The Record, which then goes to the Database on
the left, and in the comments on the right provides further access
to the summary report Iraq On The Record Report (IR) referred to
above.
[4] The document is on the website of the Government Printing
Office. Go to www.gpo.gov/, then to GPO Access, go to A-Z Resource
List, go to Congressional Documents 104th Congress forward, under
Previous Congresses, go to Search, and Select 108th Congress, Choose
House Documents, Search "108-1", go to #4, which shows President
Bush's State of the Union Address.
[5] This document is also on the website of the Government Printing
Office. Follow the same procedure as in note 4 but at the end
search for "108-23", and go to #3 which is President Bush's report
to Congress.
[6] The report is on the website of the Senate Select Committee On
Intelligence. Go to www.intelligence.senate.gov/ and choose Report
On The U.S. Intelligence Community's Prewar Intelligence Assessments
On Iraq.
[7] See note 4.
[8] The report is available on the presidential commission's
website. Go to www.wmd.gov/report/ and choose Part One: Chapter One
Case Study: Iraq .
[9] The resolution is available on the UN's website. Go to
www.un.org/, go Welcome (English), go to Search on the top row,
enter "Resolution 1441", go to second listing - Links to documents
S/RES/1441(2002), and enter English.
[10] The press release is on the UN's website. Go to
www.un.org/News/Press/docs/2003/sc7644.doc.
[11] The resolution is available on the website of the House of
Representatives. Go to www.house.gov/, then under Legislative
Information go to Find a Bill or Law, Search the Thomas website, go
to Legislation, Search Bills and Resolutions, under Simple Search go
to Search in and enter Summary and Status Information about Bills
and Resolutions, then Search for Bill Number, then Enter
Search "H.Con.Res.2", then Select Congress 108th.
[12] That resolution is also available on the website of the House
of Representatives. Follow the same procedure as in note 11 but at
the end, Enter Search "H.J.Res.20", Select Congress 108th.
[13] That statement is available on Senator Levin's website. Go to
www.levin.senate.gov/ and go to Newsroom, enter January 25, 2005 to
January 25, 2005, under Issue go to All Issues, under Category go to
Statements, then go to Nomination of Condoleezza Rice to be
Secretary of State.
http://democracyrising.us/content/view/268/164/