The New Investigation Season

February 3, 2007
By David Swanson, Jonathan Schwarz, and Tom Engelhardt
Tom Dispatch

At the moment, the spectacle of the I. Lewis Libby trial, of the den of thieves falling out, of the unraveling of old administration war stories, and of the possibility that, in the near future, the vice president might appear in the witness stand for a grilling all occupy Washington's center stage along with a restless Congress, filled with unnerved representatives of the president's own party, increasing numbers of whom are, by now, painfully aware that they are dealing with the delusional over the disastrous – and have little idea what, exactly, to do about it.

In just the last week, Vice President Cheney has termed administration policy in Iraq a shining light in the firmament of war and peace-making ("Bottom line is that we've had enormous successes, and we will continue to have enormous successes…"); the president has praised some of the best units in Iraqi Army for "beginning to show me something" – as it turns out, how to muff a military operation; various members of the administration and top military figures have been issuing threats of increasing intensity against Iran while the situation in the Middle East goes from worse to worse yet; and, on the bright side, Maj. Gen. Benjamin Freakley, one of our commanders in Afghanistan, managed to hail the new year of 2007 in that embattled land this way: "I'd also like to say that this year's going to be a great year, as last year was, for detention operations in [sic] the United States."

And just imagine, the Congressional investigatory season hasn't even begun to gear up yet. It's in this spirit that I asked David Swanson, the ever energetic fellow who presides over Afterdowningstreet.org, among a small empire of oppositional organizations, and writes regularly for Tomdispatch.com, and Jonathan Schwarz to take a look ahead at what's in store for the American people in the coming months from their newly elected (or reelected) representatives – what's likely to be investigated, what's not; what matters and why. ~ Tom

The Bush Investigations

by David Swanson and Jonathan Schwarz

The last time Congress was controlled by the party in opposition to the White House, we all learned more than we cared to know about the uses of cigars. This time the need for investigations is much more serious. The Democrats are talking fast and furious about doing them, but they're not talking about doing the right ones – and a month into their tenure, they've barely discovered where the bathrooms are.

As humorist Bob Harris enjoys saying about the Bush administration, "It's like a new Watergate every day with these people." Congress could probably spend three decades profitably examining the last six years of the Bush administration. Unfortunately, they'll have to do severe triage to select the areas of malfeasance where investigations will most benefit the country.

A recent ABC/Washington Post poll showed that the public (despite very little help from ABC News or the Washington Post) has it right. A majority picked the "should" option in response to both of these questions:

"Do you think Congress should or should not hold hearings on how the Bush administration handled pre-war intelligence, war planning, and related issues in the war in Iraq?"

"Do you think Congress should or should not hold hearings on how the Bush administration has handled surveillance, treatment of prisoners and related issues in the U.S. campaign against terrorism?"

Meanwhile, back in Washington, Congress is gearing up to investigate whether Halliburton might have cheated on its contracts a little. Hello?

Of course we need to investigate the war profiteers. But our top priority has to be the fraud that launched the war to begin with. Most readers of this article know it was fraud, but a third of the country still doesn't and won't until it's on their televisions for several days in a row. And unless there is accountability for it, the next president may feel free to lie us into a war of his or her choosing. In fact, unless there is enough exposure and accountability, the current war may never end.

Senate Intelligence Committee Chair Jay Rockefeller has pledged to finish a long-stalled investigation focused on the 2002–03 campaign for the invasion. However, it's unclear how deeply he'll dig, or what he'll do if the Bush administration simply refuses to cooperate.

In the House, the office of Intelligence Committee Chair Silvestre Reyes says he doesn't plan to investigate the misuse of intelligence on Iraq. In fact, staffers in his and other House offices say a decision was made by the party leadership and/or committee chairs not to "look backwards." (Some members of the Congressional Progressive Caucus we spoke to this week were unaware of this, assumed Reyes would do the investigation, and said they would file Resolutions of Inquiry if he does not.)

The Democrats also appear hesitant to use their subpoena power in the investigations they do plan. Some offices have told us they hope to uncover the truth without having to use subpoenas and that they see this as desirable. Others have said that subpoenas are frowned on because of the need for comity.

When we heard this, we thought the staffer to whom we were talking had said "comedy" – and in fact that might have been more appropriate. During the Clinton administration, of course, comity and collegiality were nowhere to be found, and Republican subpoenas rolled up Pennsylvania Avenue piled on flatbed trucks. (The House Oversight and Government Reform Committee alone issued over a thousand.)

Hopefully this Democratic reluctance is feigned for PR purposes, and they understand that there's no possible way they'll get the necessary information out of the Bush administration by asking nicely. In any case, they may have motivations beyond a wish to keep things friendly. If they issue subpoenas and the administration refuses to comply on the grounds of executive privilege, they'll have to file a lawsuit or back down. And if they file a lawsuit, there's no guarantee they'll win, particularly given the increasing conservative nature of the judiciary. This would be the worst of both worlds: They wouldn't get the information, and they would have established a precedent condoning executive secrecy.

But if this is their view, then they may be surrendering before the fight begins. Congress can win any battle with the executive branch as long as it has an informed public opinion behind it. And that's where we come in – progressives need to teach politicians that they'll be rewarded for doing the right thing and conducting these investigations.

War Lies

Incredibly enough, four years after it happened there has been no genuine investigation of the farrago of propaganda used to sell the Iraq war.

Republicans have done their best to confuse the issue, claiming that it has, in fact, been investigated and the Bush administration has been exonerated. Nope. Indeed, until today the issue has been almost completely stonewalled. Here's how it's worked:

At first, the Bush administration tried to prevent any investigation at all. When no WMD turned up in Iraq by summer 2003 that became politically impossible. The Senate Select Committee on Intelligence (SSCI) – chaired by Republican Sen. Pat Roberts of Kansas – then promised they'd look into it. But the terms of the investigation were limited to the quality of intelligence produced by the CIA and the rest of the Intelligence Community. Crucially, there was to be no examination of the main issue: whether the Bush administration had presented the intelligence honestly to Congress and the public.

Then, in early 2004, David Kay (who ran the CIA's Iraq Survey Group sent in search of Saddam's stores of WMD) resigned, telling Congress that "we were almost all wrong" about Iraq's supposed arsenal. This forced Roberts to accept a "Phase II" to the committee's investigation. It was slated to examine many subjects; most important, "whether public statements and reports and testimony regarding Iraq by U.S. Government officials made between the Gulf War period and the commencement of Operation Iraqi Freedom were substantiated by intelligence information."

At the same time, Bush was forced to appoint what came to be known as the "WMD Commission." However, as the commission later stated, the president "did not authorize us to investigate how policymakers used the intelligence they received from the Intelligence Community on Iraq's weapons programs."

In June 2004, four months before the Presidential election, the SSCI released its Phase I report. It laid blame for the whole debacle at the feet of the intelligence agencies, insisting that they hadn't been pressured by the administration. When the WMD Commission report came out in March 2005, Roberts said he intended to drop Phase II because "we have now heard it all regarding prewar intelligence" – and, in any case, further investigation was useless "in a post-election environment."

Resistance from some Democrats forced Roberts to backtrack and officially recommit himself to Phase II. But to date, despite the release last year of reports on several of the less contentious aspects of the Phase II study, the stonewall has held: There has been nothing at all on how the Bush administration made its case for war. (According to a recent interview with Sen. Jay Rockefeller [D-WV], the pressure on Roberts came directly from Dick Cheney.)

The question today is: What do Democrats intend to do about this now that they control both houses of Congress? It's unclear whether the Democratic leadership has a thought-out strategy. Rockefeller has vowed the Intelligence Committee, which he now chairs, will finish the Phase II investigation by this summer. He's also indicated a willingness to use his subpoena power if necessary.

Nevertheless, the administration will strongly resist a serious inquiry – and D.C. media mandarins will sneer at any such attempt by the Democrats. The Washington Post columnist David Broder has already learnedly explained, based on no evidence whatsoever, that "the public's moved past" the pre-war lies. Others, like Gloria Borger of U.S. News & World Report and CBS, have barely been able to stifle their yawns at the idea of an actual investigation. The worst outcome would be a limp completion of the Phase II report, after which the subject would be declared closed once and for all. The best outcome would be a serious, coordinated investigation by the House and Senate of the whole stinking mess.

If the Democrats take the second path, there are literally hundreds of basic questions Congress has never asked. For instance:

* What was the Bush administration's thinking on Iraq before 9/11?

In 2004, investigative reporter Russ Baker spoke to Bush family friend and author Marty Herskowitz. Based on lengthy conversations he had taped with Bush for a planned ghosted biography, he claimed then-Governor Bush "was thinking about invading Iraq in 1999." According to Herskowitz, the perspective of people around Bush was that wars were useful politically and that presidents should: "Start a small war. Pick a country where there is justification you can jump on, go ahead and invade." It certainly would be something to see Herskowitz testify on this under oath in front of a congressional committee.

Then there's Paul O'Neill's account of National Security Council (NSC) meetings when he was Treasury Secretary. According to O'Neill, Bush's first National Security Council meeting on January 30, 2001 focused on Iraq – and, at this meeting, CIA Director George Tenet said the Agency's intelligence was so poor "we'd be going in there blind." At a February 1, 2001 meeting, participants were given a document entitled "Political-Military Plan for Post-Saddam Iraq." Secretary of Defense Donald Rumsfeld said: "[W]hat we really want to think about is going after Saddam...Imagine what the region would look like without Saddam and with a regime that's aligned with U.S. interests."

According to O'Neill, Tenet told the President on May 16, 2001, "[I]t was still only speculation whether Hussein had weapons of mass destruction or was starting any weapons-building programs." Videotapes and/or detailed transcripts of these NSC meetings certainly exist, and there's no reason Americans shouldn't see them (except, of course, for the certain constitutional crisis the administration would provoke to prevent that from happening).

Moreover, all this jibes with what senior policymakers were saying at the time. On February 24, 2001, Secretary of State Colin Powell stated publicly: "Saddam Hussein has not developed any significant capability with respect to weapons of mass destruction. He is unable to project conventional power against his neighbors." And on July 29, 2001 Condoleezza Rice told CNN: "...Let's remember that [Saddam's] country is divided, in effect. He does not control the northern part of his country. We are able to keep his arms from him. His military forces have not been rebuilt." What intelligence were these statements based on?

* Was the intelligence community pressured?

According to the SSCI Phase I report and the WMD Commission, the CIA and other agencies came to their conclusions of their own remarkably free will. To create this narrative, however, the reports had to overlook some glaring contradictions.

For instance, two books – James Bamford's A Pretext for War and Lindsay Moran's Blowing My Cover – describe what seems to be the same incident in which an anonymous CIA source claims administration pressure on the Agency "was blatant." The source reported that his or her boss told a group of fifty analysts that "if Bush wants to go to war, it's your job to give him a reason to do so." Neither Bamford, nor Moran was contacted for the previous investigations.

Meanwhile, an anonymous former CIA agent has filed a lawsuit against the Agency, claiming he'd been punished for providing unwelcome intelligence on Iraq. Or at least it appears to be Iraq – much of the complaint has been redacted. The complaint states that the plaintiff "served as primary collection point for Near Eastern WMD programs." According to New York Times reporting on the suit, the agent says he was told by an informant in 2001 that Iraq had abandoned its nuclear-weapons program years before. After complaining that this (and other information) was ignored, he was made the subject of a counterintelligence investigation. Nothing about this appears in the Phase I or WMD Commission report.

* Did the administration plan to create a false pretext for war?

According to Hubris by Michael Isikoff and David Corn, Bush authorized a covert CIA program for Iraq in February 2002. Among other things, it included a scheme to "stage a phony incident that could be used to start a war. A small group of Iraqi exiles would be flown into Iraq by helicopter to seize an isolated military base near the Saudi border. They then would take to the airwaves and announce a coup was under way. If Saddam responded by flying troops south, his aircraft would be shot down by U.S. fighter planes patrolling the no-fly zones established by UN edict after the first Persian Gulf War. A clash of this sort could be used to initiate a full-scale war." Needless to say, Congress has never investigated this.

Likewise, we know from a leaked British memo that Bush was talking about other possible pretexts in early 2003. In the memo's language, Bush told Blair, "The U.S. was thinking of flying U2 reconnaissance aircraft with fighter cover over Iraq, painted in U.N. colours... If Saddam fired on them, he would be in breach" of U.N. resolutions requiring Iraq's cooperation with the ongoing weapons inspections.

And this barely scratches the surface. Why did the Bush administration lie about Saddam Hussein's son-in-law Hussein Kamel, who told the U.S. in 1995 that Iraq had no remaining banned weapons or programs? Why did Secretary of State Colin Powell fabricate parts of intercepted statements by Iraqis in his UN presentation that proved so crucial to the coming invasion? Why did Powell blatantly ignore what he was being told by the State Department's intelligence staff? What happened to the CIA's secret pre-war interviews with thirty Iraqi WMD scientists, all of whom claimed Iraq was clean of weapons of mass destruction or programs to produce them? All this and much more would be examined by any serious investigation. Here are a few of the documents that might be subpoenaed:

* the complete October 2002 National Intelligence Estimate (NIE) on Iraq;

* the records of National Security Council meetings on Jan. 30, Feb. 1, and March 16, 2001;

* the records of Cheney's spring 2001 meetings with top oil executives for his Energy Task Force;

* the CIA's Senior Executive Memorandum of January 12, 2002 on Hussein Kamel;

* the records of Bush's late July 2002 budget discussions on Iraq with Legislative Affairs Assistant Nicholas Calio;

* the records of the July 20, 2002, U.S.-U.K. intelligence conference at CIA headquarters, the basis for the Downing Street Memo statement that "the intelligence and facts were being fixed around the policy";

* the October 2002, one-page NIE summary that (according to journalist Murray Waas) told the White House of doubts that the infamous aluminum tubes were, in fact, part of an Iraqi nuclear weapons program;

* the January 2003 National Intelligence Council memo that (as reported by the Washington Post) declared the purported Niger-Iraq-yellowcake connection was "baseless and should be laid to rest";

* the records of CIA plans to create a pretext for war: DB/Anabasis, authorized by Bush on February 16, 2002;

* the U.S. records of the January 31, 2003 Bush-Blair meeting at the White House;

* the British records of early 2003 conversations between British Foreign Secretary Jack Straw and Colin Powell, described by Philippe Sands in his book Lawless World, plus any records from the U.S. side;

* the complaint filed by a CIA agent in Doe v. Goss claiming he'd been punished for providing unwelcome intelligence;

* the records of the White House Iraq Group, established in August 2002 to market the future invasion to the American public;

* the August 2004 memo showing Bush may have proposed bombing al Jazeera.

The committees to focus on to get this done are the House and Senate Intelligence Committees (chaired by Rep. Silvestre Reyes [TX] and Sen. Rockefeller [WV], respectively); House and Senate Armed Services (Rep. Ike Skelton [MO] and Carl Levin [MI]); and House Oversight and Government Reform (Henry Waxman [CA]).

War Corruption

When it comes to investigating fraud and corruption during the war, the obvious place to start is with the numerous no-bid contracts awarded to politically-connected corporations like Halliburton and Bechtel. Henry Waxman's Oversight and Government Reform Committee will be launching hearings on this next week. Three less obvious but equally important areas to investigate are:

1. Where did the money come from to begin secret preparations for the invasion of Iraq?

Bob Woodward's Plan of Attack contains a largely overlooked bombshell: In the summer of 2002, Bush took money appropriated by Congress for Afghanistan and other programs and – with no Congressional notification – used it to upgrade Kuwaiti airfields and create a new "distribution capability" of pipelines so the invasion force would have fuel available while sitting close to the Iraqi border. This was a blatant violation of Article I, Section 9 of the Constitution ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law"). It was certainly an impeachable offense (if anyone cares). According to Woodward, the amount was $700 million; the Congressional Research Service (CRS) later corrected that figure, raising it to $2.5 billion. CRS, however, ruefully noted that it "could not obtain details on this spending."

2. Who decided to build permanent military bases in Iraq? When did they make that decision? What was their thinking behind doing so? And how is it that they are still being built despite the fact that Congress prohibited further spending on them?

In October 2006, both houses of Congress passed a bill with an amendment forbidding the use of funds to continue building permanent bases in Iraq. However, according to the most recent reporting (in the American Prospect), the Army continues to construct four huge super bases in different regions of Iraq, with "absolutely no public scrutiny." Since the administration hasn't told them otherwise, the Pentagon plans to occupy the bases indefinitely and is building an extensive communication system to link them to each other as well as to bases in Qatar and Afghanistan. When were these bases first approved? Why are they still being built illegally?

3. Is the Bush Administration trying to privatize Iraq's oil for the benefit of U.S. and British corporations?

The Mideast oil industry, including Iraq's, underwent a wave of nationalizations in the 1970s. But behind the scenes the Bush administration has been shepherding towards passage a new law that appears to return Iraq's oil to its pre-1972 status, when it was essentially controlled by companies such as Shell, Mobil, Standard Oil, and British Petroleum.

With that law expected to go before the Iraqi parliament in March, Congress urgently needs to investigate questions such as: How have the Bush administration and U.S. corporations influenced the restructuring of Iraq's oil industry? To what degree has the influence worked directly to the benefit of U.S. corporations? What are the likely outcomes of the draft law for the Iraqi economy and economic development?

The committees to focus on for investigations of war corruption are House Oversight and Government Reform (chaired by Rep. Waxman); House and Senate Appropriations (Rep. David Obey [WI] and Sen. Robert Byrd [WV]); House and Senate Armed Services (Rep. Skelton and Sen. Levin); and House and Senate Judiciary (Rep. Conyers [MI] and Sen. Patrick Leahy [VT]).

War Crimes

Beyond the lies and manipulations that took us to war, and the corruption that has dominated the war, there is a third broad area that needs to be investigated – but much of which won't be without serious public pressure on Congress. This is the area of war crimes: the targeting of civilians, hospitals, ambulances, and journalists; the use of illegal weapons; the detentions, extraordinary renditions, abuse, torture, ghost prisoners, the setting up of a global network of secret CIA prisons, and murder.

Investigations into extraordinary rendition and torture – in Iraq and elsewhere – will likely be led by Patrick Leahy, chairman of the Senate Judiciary Committee. Leahy has already indicated he's willing to do what's necessary to investigate these issues, including subpoenaing administration records. In particular Leahy plans to procure a 2002 memo written by the Justice Department's Office of Legal Counsel, which is believed to list approved interrogation techniques. It's unclear what Leahy will do if the administration simply refuses his committee's subpoenas.

It's even less clear who, if anyone, will push for investigations into war crimes committed in Iraq. The Bush administration has been concerned since 9/11 that administration officials might be at risk of prosecution under the 1996 U.S. War Crimes Act – which enumerated sentences including the death penalty for U.S. officials who violate the Geneva Conventions. An early 2002 memo by then-White House Counsel Alberto Gonzales therefore recommended that Bush take steps to preempt any possible prosecution by declaring that members of al-Qaeda and the Taliban were not covered by the Geneva Conventions. The memo also urged Bush to hold open similar "options for future conflicts" in the "war on terrorism." And Bush has done so: His administration stated in 2004 that non-Iraqis captured in Iraq were not covered by the Geneva Conventions. Meanwhile, the Justice Department has given the CIA permission to secretly move Iraqi citizens out of the country for interrogation – in what a former senior military attorney has called "conduct that the international community clearly considers in violation of" the Geneva Conventions.

These actions should be investigated by the Judiciary Committees of Congress as part of their examination of rendition and torture. Meanwhile, other possible war crimes – such as the Haditha massacre, the siege of Fallujah, support of Shiite death squads, and the use of depleted uranium could plausibly be investigated by many committees (including Armed Forces, International Relations, and Veterans Affairs), so that if one committee declines to examine what occurred, others may be persuaded to do so.

The committees we need to focus on for getting war-crime investigations underway are House and Senate Judiciary (chaired by Rep. Conyers and Sen. Leahy), House Armed Services (Rep. Skelton and Sen. Levin), House Veterans Affairs (Rep. Bob Filner [CA]), House International Relations (Rep. Tom Lantos [CA]) and Senate Foreign Relations (Sen. Joe Biden [Del]).

All these investigations are badly needed, not just for the sake of accountability but because the truth will end the war. Bush can continue his crusade only because most of the grim reality of Iraq remains in the shadows. Dragging it out into the sunlight is up to us.

David Swanson is the Washington Director of Democrats.com and of ImpeachPAC.org. He is co-founder of the AfterDowningStreet.org coalition, creator of MeetWithCindy.org, and a board member of Progressive Democrats of America, and of the Backbone Campaign. He was the organizer in 2006 of Camp Democracy. He serves on the steering committee of the Charlottesville Center for Peace and Justice and on a working group of United for Peace and Justice.

He has worked as a newspaper reporter and as a communications director, with jobs including Press Secretary for Dennis Kucinich's 2004 presidential campaign, Media Coordinator for the International Labor Communications Association, and three years as Communications Coordinator for ACORN, the Association of Community Organizations for Reform Now. Jonathan Schwarz was a media consultant for the 2004 Kucinich presidential campaign. His website is A Tiny Revolution.

Copyright © 2007 David Swanson and Jonathan Schwarz