Cheating Justice: How Bush and Cheney Attacked the Rule of Law and Plotted to Avoid Prosecution- and What We Can Do about It

CHEATING JUSTICE

How Bush and Cheney Attacked the Rule of Law and

Plotted to Avoid Prosecution—and What We Can Do

about It

Elizabeth Holtzman

WITH

Cynthia L. Cooper

BEACON PRESS

BOSTON

We would like to dedicate this book to those in the U.S. government who, regardless of personal risk, stood up against the Bush administration’s assault on the rule of law, on peace, and on human rights.

CONTENTS

INTRODUCTION    Why We Shouldn’t Simply Move On

ONE    Lies That Embroiled Us in War and Occupation in Iraq

TWO    Wiretapping Americans

THREE    Crimes of Torture

FOUR    Accountability at Home: Redressing

Bush Administration Misdeeds

FIVE    International Justice: Accountability for the Bush Team Abroad

SIX    What to Do: The Time Is Now

ACKNOWLEDGMENTS

NOTES

INDEX

INTRODUCTION

Why We Shouldn’t Simply Move

On

Before President George W. Bush left office, many people speculated that he would pardon himself as protection against possible future prosecution for crimes. People assumed he would do the same for Vice President Richard B. Cheney and his top cabinet officials, advisors, and aides. There was a good deal of discussion on cable TV news, blogs, opinion columns, and political talk shows: How extensive is the pardon power? Had self-pardons been tried before? When would it happen?

In Bush Final Days, Are Pardons in the Works? asked NPR’s All Things Considered on November 23, 2008.1 Will Bush Pardon Himself? wrote Human Rights Watch director Kenneth Roth in the Daily Beast.2 Get ready for mass pardons, headlined a pundit in the Hill’s blog.3

The president did nothing of the sort. Instead, he retired without a seeming ruffle of tension, helicoptering out of Washington, D.C., and heading to a new home in a Dallas suburb and his ranch in Crawford, Texas. When he publicly emerged, two years later, he was touting a newly published memoir, and proudly proclaiming that he had approved a form of torture, waterboarding—Damn right, he said in his memoir, Decision Points.4 The former president had no apologies for starting a war in Iraq that had taken the lives of thousands and ruined many more: he thought the world was better off for it, even though no weapons of mass destruction, his ostensible reason for the war, were found in Iraq.

The vice president didn’t even wait for his term of office to end before he started burnishing his role in waterboarding, war, and warrantless surveillance. Those who allege that we’ve been involved in torture, or that somehow we violated the Constitution or laws with the terrorist surveillance program simply don’t know what they’re talking about, he said in an ABC News interview on December 15, 2008.5

Neither seemed perturbed by the prospect of prosecution. Now we know why.

While in office, they had already created walls of protection to prevent the sting of the law from reaching them. Behind the scenes, President Bush and Vice President Cheney worked—tirelessly, it seems—to inoculate themselves against every manner and form of accountability for misdeeds.

They passed provisions changing the laws that they had violated, then giving the changes retroactive application. They made existing laws so convoluted and confusing that probably no prosecutor could enforce them. E-mails in their computers conveniently disappeared, and the retention systems failed. They stamped state secrets on legal actions that might open their misdeeds to scrutiny. They set up straw facades and fake justifications, and even slipped them in the law as pop-up defenses.

In short, in an unprecedented way in American history, they engineered and fixed the system from the inside, building buffers of protection for themselves—behind a moat, on a hill, locked and gated, seemingly above the law. This book explores how the Bush administration used its power to manipulate the system, cheat justice, and get away with crimes.

Except . . . they had a lot of ground to cover. Their transgressions were so vast that they left open some small keyholes where the law can still reach them. This book is also about how to hold them accountable for the crimes they committed.

In the years since they departed, more information has emerged about their actions—documents have been declassified, investigative reporters and authors have probed, nonprofit groups have filed Freedom of Information actions; in some areas, Congress has conducted inquiries. Former White House personnel have stepped forward; whistleblowers have revealed secrets and leaked documents; lawsuits have pried open hidden truths. Bit by bit, the record is unfolding. The president and vice president have even incriminated themselves.

This book describes the multifarious ways in which President Bush and his team violated America’s criminal laws and the sophisticated counter measures they took to avoid being held liable for these violations. Showing a breathtaking contempt for the rule of law, they disregarded laws that got in their way and, when exposed, rushed to Congress to push through a rewritten version of those laws to their specifications to get off the hook. They did this while much of the nation was still absorbing and rebounding from the attacks of 9/11.

Understanding the depth of their crimes highlights one thing—it is even more important for our democracy that we refuse to let them get away with it.

A president and vice president who have committed serious misdeeds in office must be held accountable. Fortunately, this is a situation that the framers of the Constitution anticipated. The founders were wise enough to know that presidents would be fallible and, as such, might commit a variety of crimes. The presidency, the founders knew, was not always going to be held by people who did the right thing or acted honorably; they explicitly provided for impeachment while presidents held office, and prosecution of presidents after they left office, too.

Thus far, President Bush, Vice President Cheney, and their team seem to have gotten away with their misdeeds. Their motto seems to be Catch me if you can, and they remain unindicted, unprosecuted, and unaccountable.

Why do we need accountability at all? To ignore the misdeeds of the president and vice president is to signal to the American people that their crimes are of no importance. To give them a free pass for their illegal activities and violations is to send a message to future presidents—do what you will, break any law, don’t worry. To turn our backs and look away is to say that we, the people, are oblivious, blinded, unaware of their deceits and destruction—or, worse yet, that we are nodding in agreement and giving our consent. Without strong action holding them responsible, the precedent of a runaway lawless administration will continue to haunt us. Have we celebrated 220 years of our Constitution to reach a point where, like a banana republic, our highest elected leaders can engage in crimes of illegal surveillance, lying to take the nation into war, torture, disappearance and degradation with impunity? Let’s hope not. Failing to hold the most powerful among us accountable is the sign of a democracy that is losing its way.

In order for a movement for accountability to rise and for the sake of generations to follow, it’s important to say that some of us were not blind, that some of us were willing to act.

It may be a difficult path to follow, but the alternative is more difficult to imagine—an America without accountability and justice.

THE BUSH-CHENEY ADMINISTRATION: A DISASTER FOR DEMOCRACY

As someone who witnessed Watergate up close—I was on the House Judiciary Committee that voted for the articles of impeachment against President Richard Nixon in 1973—I became increasingly concerned about long-lasting ramifications of the illegal acts and injurious decisions of the Bush administration.

While President Bush and Vice President Cheney were in office, I advocated for their impeachment. For me, the model was what happened when President Nixon committed grave offenses against the Constitution and laws of the United States. In response, the country came together and refused to allow a president to take the law into his own hands. The American people were outraged by his systemic abuses of power and his lies. The House Judiciary Committee reviewed dozens of volumes of evidence about illegal behavior by President Nixon extending over several years—including the covert bombing of Cambodia, illegal wiretapping, the Watergate break-in, and the conspiracy to obstruct justice, that is, the cover-up—and came to the conclusion that impeachment was necessary. The vote reached across party lines, and the country accepted the verdict.

All these years later, I still remember that it was hard to vote for President Nixon’s impeachment, even though I was no fan of his policies and particularly disagreed with his pursuit of war in Vietnam. While few were eager to find our president engaged in criminality, it strengthened the country to know that, in the end, most Americans valued the rule of law more than the fate of any one person. The process in Watergate had worked well to protect the nation from a criminal president.

The Nixon impeachment process, because it was done so fairly, has withstood the test of time, and remains a high-water mark in the nation’s efforts to make sure its officials respect the law.

I also believed that more than enough evidence existed to conclude that President Bush and Vice President Cheney had violated their oaths of office and committed high crimes and misdemeanors—and in ways especially damaging to our democracy.6 But unlike Nixon, President Bush and Vice President Cheney did not face impeachment proceedings, nor did any significant legal review of their actions take place.

In contrast to the situation with President Nixon, there has been no official reckoning of the actions of President Bush. A grand jury named President Nixon an unindicted co-conspirator. A House Judiciary Committee impeachment report set forth his high crimes and misdemeanors. An official record was made of his misconduct, so that history could not mistake it and it could not be whitewashed with propaganda, memoirs, or an attempt to rewrite the facts.

Even without a Bush-Cheney impeachment, I knew that accountability could come after they left office. That was another lesson from Watergate. President Gerald Ford, who took office when Nixon resigned, recognized that a former president could be prosecuted for his crimes in office. President Ford took the extraordinary step of issuing a pardon to former president Nixon, insisting that he had suffered enough by having to resign in order to avoid impeachment. President Ford’s pardon of Nixon to prevent a possible prosecution was roundly denounced at the time because it created a dual sense of justice. The American people did not want one set of criminal standards for a president and another for the rest of us. This may well have been the most important factor in Ford’s defeat in the next election.

When I started thinking about paths to accountability for the criminal misdeeds of President Bush and Vice President Cheney, I intended to make the case for prosecution. Based on what I already knew and had researched and written about, I expected to find a range of illegality—and I did. What I hadn’t expected to find were the mounting pieces of information and evidence that showed a pattern and practice by which President Bush and Vice President Cheney, after undertaking illegal actions and keeping them secret, went on to set up fake justifications for their behavior, blamed others, inserted hidden defenses in the law, and schemed to protect themselves from the consequences of their criminal conduct by every means possible. As I examined the facts more closely, I saw that they had even succeeded in changing laws in an attempt—possibly successful—to exonerate themselves.

This could happen only in a country still traumatized by the World Trade Center and Pentagon attacks and willing to believe a president, no matter what. Taking advantage of this post-9/11 atmosphere, President Bush conducted illegal wiretapping, lied about it, and when exposed, asserted that he could flout the law. Surveillance of Americans—secret and unnoticed—can do permanent damage by chilling diversity and depth of opinion and speech. President Bush, no doubt, knew how sensitive Americans are to invasions of their privacy. Before he left office, he pushed through changes in the law that might protect him from prosecution.

President Bush secretly authorized and unleashed systemic torture and cruel and inhuman treatment in the interrogation and handling of detainees. While in the White House, he denied that he had authorized torture. We do not torture, the president said on many occasions, even issuing a statement to the United Nations on June 26, 2004, reaffirming the commitment to the elimination of torture worldwide.7 But he must have realized that torture and cruel and inhuman treatment could not be hidden forever. While still in office, the president secured legal opinions purporting to allow torture and pushed through provisions to undermine the War Crimes Act and render it largely useless in affixing criminally responsibility against him.

Torture and cruel and inhuman treatment violate solemn treaties, as well as our own laws. The horrid pictures of prisoner abuse at Abu Ghraib, according to various testimonies, encouraged jihad against U.S. soldiers, endangering their lives. As a former district attorney, I know that highly trained, experienced investigators can frequently obtain vital information without ever lifting a finger against the person being questioned.

As for starting a war by lies and deception, no more serious legal violations can be envisioned—thousands of lives lost, expenditures of a trillion dollars, and the violation of our treaty obligations against fighting an unprovoked war.

The devastation caused by the Bush administration is so vast that, in some ways, we have been numbed to its extent and corrosiveness. Now that they are out of office, reasserting the rule of law and holding President Bush and Vice President Cheney answerable, where possible, is a necessary task.

Active steps are needed to investigate the misconduct of the Bush-Cheney administration: a special prosecutor to investigate possible illegal actions and bring charges where appropriate; a truth commission to make sure that all of the facts and actions are established for a historical record; new legislation by Congress to patch holes in the law to prevent repetition of the same behavior; citizen action to demand that our constitutional standards be upheld.

Prosecution is by no means a minor matter. Prosecutors must analyze the evidence and the law, persuade a grand jury to return an indictment, try the case before a jury. The evidence must meet each element of the crime in the statute and overcome defenses that those charged may assert. Prosecution isn’t something to be approached lightly—but it is critical to serious accountability.

The argument that conducting investigations would tear the country apart is not true, but in any case is no reason to desist from requiring accountability. America is certainly strong enough to weather a fair and professional investigation of presidential criminality. During the Watergate inquiry, the same argument that the country would somehow suffer harm turned out to be untrue.

Our nation prohibits titles of nobility precisely in order to guard against the formation of a legal hierarchy in our society. Presidents are not kings; they are ordinary human beings, subject to ordinary temptations, who must be treated like any other persons if they have broken the law. We do not have an aristocracy of former government officials with immunity.

The danger to our democracy is seen most starkly when former Bush administration officials trumpet their crimes, proudly and publicly, without any fear that they will be held to account. As with any crime that goes unprosecuted, the failure to take action against a former president who has committed crimes stands as an indictment of the society that permits the impunity. The failure to prosecute trivializes the acts constituting the crime, suggesting, in the case of President Bush, that torture, disappearance, cruel and inhuman treatment, abrogation of our treaties, violation of our laws on privacy, deception of the Congress, and subversion of the constitutional checks on war making are minor matters, easily overlooked. It means rejecting what used to be regarded as core American values, and even worse, sends a clear signal to future presidents that they may act with similar disregard for the law.

ONE

Lies That Embroiled Us in War and

Occupation in Iraq

President Bush walks confidently, a slight bounce in his step, as he heads to the podium in the House of Representatives for his 2003 State of the Union address to Congress. An American flag pin prominently placed on his left lapel is set off by a blue-on-blue tie. At the podium, he picks up two manila folders and presents them to the two men on a raised dais behind him—Vice President Cheney on one side, Speaker of the House Dennis Hastert, a Republican from Illinois, on the other. They accept the folders, shake his hand.

Turning back to the audience, the president stands and smiles lightly while the members of Congress rise and clap—both sides of the aisle, applauding for fifty-four seconds before the Speaker introduces him. The president begins his address, his voice modulated with a mixture of calm and certitude. He has a written text in front of him, and he refers to it from time to time. But he is practiced, and it shows: he delivers the speech well.

Nearly one-third of the speech is devoted to Iraq, and most of what it says marches toward a future war. The president is laying out the case for why the United States should attack Iraq years after it was defeated in the first Gulf War led by his father.1 But there is one problem: several of the facts that the president includes about Iraq are not true. They are not merely exaggerated claims, but complete falsehoods, propaganda designed to push the Congress to war. Several months later—but after the war has started—the White House concedes that a few false words had worked their way into what, by all appearances, was a highly rehearsed moment.

President Bush and his Oval Office insiders gave a new twist to the concepts of deceit and fraud in embroiling the nation in war and occupation in Iraq. Without a flutter, they deliberately rolled out a months-long marketing strategy beforehand, purposely deceiving both the public and Congress about the reasons and need to attack Iraq. What’s more, along the way they seem to have plotted personal escape routes from the consequences of their deceptions.

No one likes being duped, but it takes more than a mere lie to meet the standards for criminal prosecution. A prosecutable fraud has several elements, each of which must be met. Among other things, the falsehoods must be intentional and they must be central to the misrepresentation. Falsehoods designed to deceive Congress may constitute a crime in some cases, but under federal law, these situations are narrowly defined. When the fraud is used to drive the nation into an aggressive war and seemingly limitless occupation, resulting in thousands of deaths, vast property destruction, and the expenditure of billions of taxpayer dollars, the ethical stakes are high.

The reality is that President Bush, Vice President Cheney, and key players in the Bush administration wanted to start a war in Iraq, which, they knew, also meant occupying the country and reshaping it thereafter. The facts did not support their military adventurism, so they concealed some facts and invented others in order to advance their objectives. Because public awareness of the lies could have short-circuited their endeavors, or led to impeachment or prosecution, Bush officials soon began a cover-up—no cost to democracy was too great to protect their hides.

President Bush, Vice President Cheney, their political guru Karl Rove, and others still continue the pattern of lying and concealment. Although it is now clear from all available evidence that the Bush administration engaged in a deceitful campaign to launch a war and the occupation of Iraq, and that enormous suffering and loss have resulted, accountability is nowhere in sight. In his book Decision Points, released in November 2010, President Bush defended the war in Iraq, even though weapons of mass destruction, his main argument for the war, did not exist.

President Bush and his advisors engaged in an extensive false information campaign to ensnare the nation into war and its aftermath. By carefully choosing what was said, by whom, and in what context, the president and White House operatives managed to slip around the laws that protect Congress from deceit. They were determined to insulate themselves from prosecution, and as a result, many of the most blatant lies delivered by the Bush officials may not be prosecutable. Despite this, the president and his team left open one possibility: prosecution of their conspiracy to defraud the Congress. Given the egregious nature of their acts and their tragic and ongoing consequences, this should be pursued—with vigor.

Staggering personal and financial costs have been incurred in the Iraq War begun by President Bush on March 19, 2003. As documented in Faces of the Fallen in the Washington Post, by early 2011, eight years after the invasion of Iraq, more than 4,400 American soldiers had been killed.2 Hundreds of soldiers from Britain, Australia, Denmark, Spain, and other nations also died, reports iCasualties.org,3 while tens of thousands of Iraqi civilians lost their lives and millions were displaced, according to analysis by the Brookings Institution.4 At least 2 million U.S. service members were deployed to Iraq by May 6, 2010, and more than thirty thousand were injured, according to The Iraq War Ledger. A 2008 study by the RAND think tank found that as many as 500,000 military personnel suffered post-traumatic stress or brain injuries.5 War spending cost U.S. taxpayers more than $740 billion (fifteen times the initial Bush estimates), notes the Iraq War Ledger,6 and the war in Iraq lasted longer than the Revolutionary War, the Civil War, or the U.S. engagement in World War II. Even after combat troops were finally withdrawn at the end of August 2010, more than fifty thousand U.S. military personnel were left operating in Iraq, along with tens of thousands of private military contractors; thousands of troops can be expected to stay for years to come, reported the Christian Science Monitor in February 2011.7

President Bush, Vice President Cheney, and others in the top echelons of the administration lied to the American people hundreds of times about the need, the reasons, and the evidence for engaging in a war in Iraq, according to documentation by the Center for Public Integrity, an investigative journalism organization.8 The real reason that the United States entered into a war in and occupation of Iraq is still unknown. Speculation abounds. Was it for oil contracts? Was it to build military bases in the Middle East? Was it to avenge an attempted assassination of President Bush’s father? Or to show up his father for deciding not to invade Iraq during the first Gulf War? Was it to power up the military, play down Vietnam? Was it to brand President Bush as a war president and win reelection?

What is known is that the war was initiated by a planned and plotted campaign of deceit that preceded it by many months, even years. The founders of our democracy understood that presidents, like kings, would be prone to seek unnecessary wars, draining the treasury dry and putting citizens’ lives at risk. They created a system of checks and balances in the U.S. Constitution to restrain the executive’s war-making power—or so they thought. Article I, Section 8 gives Congress the power to declare war, as well as an array of other war powers, such as the power to raise armies and navies, and the power to control military appropriations. In Article II, Section 2, the president is given power as the commander in chief of the army and navy when called into actual Service of the United States.9

The founders believed that so long as a president alone could not start a war and had to seek congressional support for funding a war and calling up troops, presidential war-making ambitions might be reined in. Congress, they hoped, would be more attentive to popular concerns and would be able to check a president’s unjustified war intentions. But they may not have fully anticipated the danger posed by a president who would lie and deceive Congress to maneuver around the checks and balances carefully put in place by the Constitution.

UNMASKING CRIMINAL DECEIT

False statements and fraud are central to claims against the president. Fraud in people’s daily experience ranges from a Bernard Madoff–type investment scheme to a used-car dealer who rolls back