Hospitals & Asylums
The Constitution in Crisis; The Downing
Street Minutes and Deception,
Manipulation, Torture, Retribution, and Coverups in the Iraq
War HA-3-3-06
By Congressman John Conyers Jr.
(D-Michigan), House Judiciary Committee Staff
As Reviewed by Independent Counsel
Anthony J. Sanders, Hospitals & Asylums
(HA)
George W. Bush, Richard B. Cheney, Paul
Wolfowitz, Donald Rumsfield, Geoffrey Miller, 65 year Sentence; Scooter Libby
15 year Sentence; Collin Powell, Richard Perle 5 year Sentence; and Alberto
Gonzalez 20 year Sentencing Judgment et al v. Her Majesty the Queen
Art. 3(3) of the Constitution of the
United States defines, (1) Treason against the United States, shall consists
only in levying war…(2) The Congress shall have Power to declare the Punishment
of Treason. Art. 2 of the US
Constitution states at clause 4. the President, Vice President and all civil
officers of the United States,
shall be removed from office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors. The 25th
Amendment to the US Constitution assures at (1) In case of the removal of the
President from office or of his death or resignation, the Vice President shall
become President. (2) Whenever there is a vacancy in the office of the Vice
President, the President shall nominate a Vice president who shall take office
upon confirmation by a majority vote of both Houses of Congress.
1.
Committing a Fraud Against the United States (18 U.S.C. ' 371) This
offense is punishable by a fine and five years in prison;
2.
Making False Statements to Congress (18 U.S.C. ' 1001) The penalty includes a fine,
imprisonment for not more than five years, or both;
3.
The War Powers Resolution (Public Law 93-148);
4. Misuse of Government Funds (31 U.S.C. '
1301) The
illegal use of funds would cause an automatic diminution in funds available to
the guilty agency.
5.
Anti Torture Statute (18 U.S.C.
§§ 2340-40A) federal laws and
international treaties prohibiting torture and cruel, inhuman, and degrading
treatment (including the Anti-Torture Statute, the War Crimes Act, the Geneva
and Hague Conventions, the United Nations Convention Against Torture, and
Cruel, Inhuman and Degrading Treatment) Conspiring to violate this prohibition is
explicitly recognized in the statute and is punishable up to life in prison if
death results, and for twenty years in prison otherwise.
6.
Federal laws concerning retaliating against witnesses and other individuals
(including Obstructing Congress (18 U.S.C.
§ 1505) for which the penalty for violations of this prohibition include a fine,
imprisonment for not more than five years, or both,, the Whistleblower
Protection Act (5 U.S.C. § 2302), the
Lloyd-LaFollette Act (5
U.S.C.A. § 7211), and Retaliating against Witnesses (18 U.S.C. § 1513) The penalty for witness
retaliation consists of a fine, imprisonment for not more than 10 years, or
both.
7.
Federal laws and regulations concerning leaking and other misuse of
intelligence information (including Executive Order 12958, Gathering, Transmitting,
or Losing Defense Information, and Gathering or Delivering Defense Information
to Aid Foreign Government). 18 U.S.C. § 793(d). The penalty for violating this prohibition
includes a fine, imprisonment for not more than ten years, or both. 18 U.S.C. §
641 The penalty for a violation of this statute is a fine, imprisonment for not
more than ten years, or both.
Calls
for Censure and Impeachment of President Bush and Vice President Cheney
A. On 20 December 2005 in
Washington, DC - Representative John Conyers, Jr., Ranking Member of the House
Judiciary Committee, released the following statement regarding today’s release
of a staff report entitled “The Constitution in Crisis: The Downing Street
Minutes and Deception, Manipulation, Torture, Retributions and Cover-ups in the
Iraq War.” Where it is found that there is substantial evidence the
President, the Vice-President and other high ranking members of the Bush
Administration misled Congress and the American people regarding the decision
to go to war in Iraq; misstated and manipulated intelligence information
regarding the justification for such war; countenanced torture and cruel,
inhuman and degrading treatment in Iraq; permitted inappropriate retaliation
against critics of their Administration, (retained convicted felons and
punished the merit worthy) in support of this report Ranking Member Conyers
introduced three House Resolutions concerning the serious allegations contained
in this Report.
1. The Bi-Partisan
Select Committee in the House - H.Res. 635 creates a select committee to
investigate the Administration’s intent to go to war before congressional
authorization, manipulation of pre-war intelligence, encouraging and
countenancing torture, retaliating against critics and friends alike, and
thwarting congressional oversight and to make grounds for impeachment.
2. The Censure
of the President George W. Bush - H.Res.636 for failing to respond to
requests for information concerning allegations that he and others in his
Administration misled Congress and the American people regarding the decision
to go to war in Iraq, misstated and manipulated intelligence information
regarding the justification of going to war, countenanced torture and cruel,
inhumane and degrading treatment of persons in Iraq, and permitted
inappropriate retaliation against critics of his Administration, for failing to
adequately account for specific misstatements he made regarding the war.
3. The Censure
of the Vice President Richard B. Cheney - H.Res. 637 for failing to respond
to requests for information concerning allegations that he and others in the
Administration misled Congress and the American people regarding the decision
to go to war in Iraq, misstated, manipulated intelligence information regarding
the justification for the war, countenance torture, cruel, inhuman and
degrading treatment of persons in Iraq and permitted inappropriate retaliation
against critics of the Administration and for failing to adequately account for
specific misstatements he made regarding the war.
B.
The 2000 Presidential election focused on many issues relating to domestic and
foreign policy. However, the topic of Iraq
was virtually unmentioned in the campaign. In a presidential debate with then-Vice
President Al Gore, then presidential candidate George W. Bush emphasized that
he would be careful about using troops for nation building purposes and that he
would not launch a pre-emptive war because he believed the role of the military
was to prevent war from happening in the first place. At the same time, some future members of the Bush Administration,
dubbed the neoconservatives, were waiting for war with Iraq.
High-ranking officials such as Dick Cheney, Richard Perle and Paul Wolfowitz
were part of this group. In the aftermath of the September 11 attacks, the Bush
Administration began to hint at the coming attack on Iraq.
In his January 29, 2002 State of the Union Address, the President remarked that
countries like Iraq, Iran and North Korea constitute an axis of evil. . . .
These regimes pose a grave and growing danger. . . . I will not wait on events,
while dangers gather. On June 1, 2002,
during a speech at West Point, President Bush formally
enunciated his doctrine of preemption that would be used against Iraq. It was also around this time that Vice
President Cheney and his Chief of Staff, Scooter Libby, began making a series
of unusual trips to the Central Intelligence Agency (CIA) to discuss Iraq
intelligence. At the same time, the
President’s public statements indicated a reluctance to use military force in Iraq.
He assured the public that he had not made up his mind to go to war with Iraq
and that war was a last resort.
However, contrary to these public statements, the Bush Administration
formed the White House Iraq Group (WHIG) in August 2002 in an apparent effort
to bolster public support for war with Iraq. Shortly thereafter, the Administration began
making more alarming and sensational claims about the danger posed to the
United States by Iraq including in a September 12, 2002 address to the United
Nations, and began to press forward publicly with preparations for war. In the days following the President’s speech
to the United Nations, Iraq
delivered a letter to UN Secretary-General Kofi Annan stating that it would
allow the return of UN weapons inspectors without conditions. On March 18, 2003, the President submitted a
letter to the Speaker of the House of Representatives and the President Pro
Tempore of the Senate informing the Congress of his determination that
diplomatic and peaceful means alone would not protect the Nation or lead to
Iraqi compliance with United Nations demands and on March 20, the President
launched the preemptive invasion. A
little more than a month into the invasion, President Bush landed aboard the
USS Abraham Lincoln and, standing beneath a massive banner reading
"Mission Accomplished, he stated, Major combat operations in Iraq
have ended.
C. On
July 7, 2004, the Senate
Select Committee on Intelligence reported that it had found numerous failures
in the intelligence-gathering and analysis process. The Downing Street Minutes (DSM) are a
collection of classified documents, written by senior British officials during
the spring and summer of 2002, which recounted meetings and discussions of such
officials with their American counterparts. The focus of these meetings and
discussions was the U.S.
plan to invade Iraq.
The DSM appear to document a predetermination to go war with Iraq on the part
of U.S. officials, and a manipulation of intelligence by such officials in
order to justify the war. The DSM generated significant media coverage in Great
Britain in the lead up to the British
elections, but initially received very little initial media attention in the United
States. However, a concerted effort to call
attention to them by Congressman John Conyers, Jr., and a number of Members of
Congress, grassroots groups, and Internet activists was ultimately successful.
On May 5, 2005, Congressman
Conyers, the Ranking Member of the House Judiciary Committee, along with 87
other Members of Congress (eventually 121), wrote to the President demanding
answers to the allegations presented in the Minutes. On June 16, 2005,
Congressman Conyers and 32 Members of Congress convened an historic hearing on
the Downing Street Minutes, covered by numerous press outlets. The hearing was forced to a cramped room in
the basement of the Capitol since Democrats were denied ordinary hearing room space
by the Republican leadership. The Republicans tried to disrupt the hearings
further by holding 12 consecutive floor votes during the hearing, an
unprecedented number.43 After the hearing, Congressman Conyers led a
congressional delegation to the White House to personally deliver a letter signed
by over 500,000 citizens, demanding answers from the President. To date, the White House has declined to
respond to these questions that were posed by these citizens and their elected
representatives in Congress. In the meantime,
after some initial false starts, delays, and denials concerning possible
misconduct in the Bush Administration’s outing of Valerie Plame Wilson, whereby
it became apparent that Karl Rove, a senior aide to the President, was involved
in the leak; a Time reporter’s notes revealed that he had spoken to Karl
Rove about the case. Then, on July 18,
2005, President Bush conspicuously changed the standard for White
House ethics from stating that he would fire anyone who leaked the information
to only firing someone if he or she committed a crime. On October
28, 2005, Vice Presidential Chief of Staff Scooter Libby resigned
after a federal grand jury indicted him on five charges, totaling a maximum
30-year sentence, related to the leak probe.51 Patrick Fitzgerald has yet to
indict other individuals but has publicly stated that his investigation would
remain open to consider other matters.
D. Texas Governor George W. Bush”s campaign focused
on issues of compassionate conservatism, his stated view that conservative
policies could be brought to bear to address social ills. Another focus of his campaign was the perceived ethical
transgressions of the Clinton Administration, and the Starr Investigation in
particular. Governor Bush promised to restore honor and dignity to the White
House. We
have found substantial evidence that these individuals have Conspired to
Defraud the United States
in violation of 18 U.S.C.'371. Our investigation has found that there is
substantial evidence the Bush
Administration redeployed military assets in
the immediate vicinity of Iraq
and conducted bombing raids on Iraq
in 2002 in possible violation of the War Powers Resolution, Pub. L. No. 93-148,
and laws prohibiting the Misuse of Government Funds, 31 U.S.C. ' 1301.
Among other things, we have found: A military commander told
Senator Bob Graham in February
2002 that A[w]e are moving military and intelligence personnel and resources out of Afghanistan to
get ready for a future war in Iraq; and by the end of July 2002, Bush had approved some 30 projects that would eventually
cost $700 million. The bombing
campaign engaged in by the U.S.
and Great Britain
in 2002 and early 2003 involved
more than 21,000 sorties and hundreds of thousands of pounds of bombs, has been described as Aa full air offensive; a
former U.S. combat veteran stated that based on what he
had witnessed, the war had already begun.
Allied Commander Tommy Franks admitted the 2002 bombing operation was
designed to degrade the Iraqi air defenses. September 21, 2001
classified intelligence briefing that the U.S.
intelligence community had no evidence linking the Iraqi regime of Saddam
Hussein to the attacks and that there was scant credible evidence that Iraq
had any significant collaborative ties with Al Qaeda. The Bush Administration ignored numerous intelligence reports
indicating that there was no credible evidence of an ongoing nuclear program in
Iraq, including
a 1999 IAEA report that there was no indication that Iraq
possesses nuclear weapons ... or any practical capability ... for the
production of such material. Many of
Secretary Powell's statements at his February 5, 2003 presentation before the
United Nations Security Council appear to have been either (1) not supported by
the available intelligence, or (2) at a minimum, backed by intelligence far
less certain than Powell had claimed.
E. President Bush and members of his
Administration made numerous knowingly and recklessly false statements that
Iraq was seeking to acquire aluminum tubes in order to build a uranium
centrifuge and
leaked classified information to the press in
order to further buttress their arguments for war. There is substantial
evidence that these knowing and reckless statements constitute a Conspiracy to
Defraud the United States
in violation of 18U.S.C. Sec. 371, and the leak of the classified information
constitutes Gathering, Transmitting or Losing Defense Information and Gathering
or Delivering Defense Information to Aid a Foreign Government, in violation of
18 U.S.C. ' 793-94. President Bush and members of his Administration
made numerous knowingly and recklessly false statements that Iraq
had sought to acquire enriched uranium from Niger.
There is substantial evidence that these individuals have Conspired to Defraud
the United States in violation of 18 U.S.C. '371 and that President Bushs statements and certifications before and to
Congress may constitute Making a False Statement to Congress in violation of
18U.S.C. ' 1001. There is
substantial evidence that individuals within the Bush Administration, namely
the current Attorney General Alberto Gonzalez, have violated a number of
domestic laws and international treaty obligations concerning the mistreatment
of detainees in Iraq, including the Anti-Torture Statute, 18 U.S.C. ' 2339; the War Crimes Act; 18 U.S.C. ' 2441; the Geneva and Hague Conventions; the
Convention Against Torture, Cruel, Inhuman, and Degrading Treatment; and the
legal principle of command responsibility.
There is substantial evidence that Secretary Rumsfeld bears
responsibility for torture and other illegal conduct in Iraq
in violation of the Anti-Torture Statute. Among other things, Secretary
Rumsfeld has approved a November 27, 2002 memorandum which includes the use of
scenarios designed to convince the detainee that death or severely painful consequences
for him and/or his family are imminent; and aided and abetted in causing these
tactics to migrate to Iraq by virtue of, among other things, transferring
General Geofrey D. Miller to Iraq detention operation. There is also
substantial evidence that Secretary Rumsfeld can be held criminally liable
under the command responsibility doctrine.
F. Our investigation has found there is
substantial evidence that (i) the President has abrogated his obligation under
Executive Order 12958 to take corrective action concerning acknowledged leaks
of classified information within his Administration; (ii) these leaks appear to
have been committed to, among other things, exact retribution against
Ambassador Wilson for disclosing that the Bush Administration knew that the
Niger documents were forgeries and that such conduct constitutes a Misuse of
Government Funds in violation of 31 U.S.C. ' 1301; and (iii) then Attorney General Ashcroft participated in a pending
criminal investigation involving Karl Rove at a time when he had a personal and
political relationship with Mr. Rove in violation of applicable conflict of
interest requirements, namely 28 C.F.R. ' 452, ' 2-2.170 of the U.S.
Attorneys Manual, and Sec. 1.7(b)(4) of the D.C. Rules of Professional Conduct.
In addition, we have found that there have been a number of lies,
misstatements, and delays by Members of the Bush Administration since the
criminal investigation into the leak was commenced, however it is unclear
whether these rise to the level of constituting a Conspiracy to Defraud the United
States in contravention of 18 U.S.C. ' 371. There
is substantial evidence that government resources were used to obtain and
disseminate damaging information regarding Ambassador Wilson to the media in
violation of the Misuse of Government Funds Statute, 31 U.S.C. ' 1301.
G.
There is little doubt that the allegations of misconduct set forth in this
Report: misleading Congress and the American public concerning the decision to
go to war; misstating and manipulating the intelligence to justify a preemptive
war; encouraging and countenancing torture and cruel, inhuman and degrading
treatment; covering up wrongdoing and retaliating against administration
critics rise to the level of Treason, Bribery, or other high Crimes and
Misdemeanors within the meaning of Article I, Section 2(4) of the Constitution.
There is at least a prima facie case that these actions by the
President, Vice President and other members of the Bush Administration violate
a number of federal laws, including (1) Committing a Fraud Against the United
States (18 U.S.C. ' 371); (2) Making False Statements to Congress (18 U.S.C. '
1001); (3) the War Powers Resolution (Public Law 93-148); (4) Misuse of
Government Funds (31 U.S.C. ' 1301); (5) federal laws and international
treaties prohibiting torture and cruel, inhuman, and degrading treatment
(including the Anti-Torture Statute, the War Crimes Act, the Geneva and Hague
Conventions, the United Nations Convention Against Torture, and Cruel, Inhuman
and Degrading Treatment); (6) federal laws concerning retaliating against
witnesses and other individuals (including Obstructing Congress, the
Whistleblower Protection Act, the Lloyd-LaFollette Act, and Retaliating against
Witnesses); and (7) federal laws and regulations concerning leaking and other
misuse of intelligence information (including Executive Order 12958, Gathering,
Transmitting, or Losing Defense Information, and Gathering or Delivering
Defense Information to Aid Foreign Government).
H.
These charges appear to be more serious than the articles of impeachment
approved by the House Judiciary Committee in 1974 against then President Nixon
for, among other things, misusing the CIA and making false statements to the
public to deceive them into believing a thorough investigation had been
conducted regarding their wrongdoing. The Ervin Commission in the 1970's was
instrumental in investigating the Watergate abuses of the Nixon Administration
and led to the impeachment hearings in the U.S. House Judiciary Committee. In
the past, the House also has created select committees to investigate serious
breaches of public trust, issues of national security, or other matters of
national concern. These have included potentially illegal or unethical conduct
by Presidents, such as the Reagan Administration’s sale of weapons to Iran in
the 1980's and U.S. military activity in Southeast Asia during the 1970's. More generally, the type of offenses
described herein which is central to Congress and the American people’s ability
to trust its Commander in Chief regarding the use of military force can
certainly be considered to be offenses resulting
from the abuse or violation of some public trust, as explained by Alexander
Hamilton in the Federalist Papers. Congress must investigate the exact
extent of the abuses of power and who was responsible, discipline responsible
officials, and enact reforms that could deter such abuses in the future. We recommend that:
1.
The House should establish a bipartisan select committee with subpoena
authority to investigate the Bush Administration’s abuses detailed in this
Report and report to the Committee on the Judiciary on possible impeachable
offenses. Also, the House and Senate intelligence committees should have
thorough hearings and investigate the Administration=s apparent manipulation of
intelligence.
2. A
resolution should be passed censuring the President and Vice President for
abuses of power.
3.
Ranking Member Conyers and other Members should consider referring the
potential violations of federal criminal law detailed in this Report to the
U.S. Department of Justice for investigation.
4.
Congress should pass, and the President should sign into law, legislation to
limit government secrecy, enhance oversight of the Executive Branch, request
notification and justification of presidential pardons of Administration
officials, ban abusive treatment of detainees, ban the use of chemical weapons,
and ban military propaganda efforts.
5.
The House should amend its Rules to permit Ranking Members of Committees to
schedule official Committee hearings and call witnesses to investigate
Executive Branch misconduct.
I.,
The select committee should have the authority via a subpoena power to obtain
documents relevant to its investigation from the Executive Branch Upon
completion of the select committee’s investigation, it should prepare a final
and comprehensive report of its findings and any recommendations it has for
amendments to federal law for improved oversight of the Executive Branch. In
addition, the select committee should report specifically to the Committee on
the Judiciary on any impeachable offenses it may uncover. These documents would include, but not be
limited to those in the possession of the:
1.
White House;
2.
Department of Defense;
3.
Department of Justice;
4.
Department of State;
5.
Central Intelligence Agency;
6.
Defense Intelligence Agency;
7.
National Security Council; and
8.
the CIA leak grand jury
J. A resolution
should be passed censuring the President and Vice President for abuses of
power. As explained in Exhibit A of this Report, Congress has the power to
censure current and former government officials who commit illegal or unethical
conduct. The conduct of the President and Vice President as discussed in this
Report clearly warrants this congressional remedy. These officials are not immune from prosecution by virtue of
their positions and should be brought to the attention of the Justice
Department, which is responsible for criminal law enforcement. Congress
should pass, and the President should sign into law, legislation to limit
government secrecy, enhance oversight of the Executive Branch, request
notification and justification of presidential pardons of Administration
officials, ban abusive treatment of detainees, ban the use of chemical weapons,
and ban military propaganda efforts.
With respect to government
secrecy, the Executive Branch should be subject to stricter standards for the
classification and declassification of national security information.
The Bush Administration has been overzealous in classifying information to prevent disclosure of
Administration policies and activities to Congress and the public. For example, the 9/11 Commission found that there
is no need to classify the
overall budget for intelligence programs, yet the Administration continues to do so and at a disadvantage to
intelligence reform. The President
should be required to report to Congress on U.S.
surveillance or searches of international organizations. For instance,
the Bush Administration wiretapped
the offices of the U.N. Security Council and the IAEA to determine how the organizations and their member
states were reacting to U.S.
war efforts. Such treatment of organizations that are
designed to further diplomacy has the potential to diminish the United States’s
standing in the world and could undermine our efforts to protect freedom. For this reason, we recommend that the President
report to the Judiciary, International
Relations, and Intelligence Committees of the House and the Judiciary, Foreign Relations, and
Intelligence Committees of the Senate on any U.S. government searches or surveillance
of diplomatic offices. The President
should be required to submit detailed reports to Congress on the use of
military force. While the President is required to report to Congress on the use of force under the War Powers
Resolution, the report must state:
1.
The number and types of injuries to and fatalities of U.S.
soldiers as a result of hostile and friendly fire since the previous report;
2. To
the extent the United States is training soldiers native to the overseas
theater, the number of such soldiers who are able to assume complete
responsibility for combat and security roles since the previous report;
3.
The Administration’s plan for withdrawing U.S.
forces;
4.
The extent to which members of the Armed Forces are submitting requests for
additional body armor or other supplies and the extent to which the Defense
Department has provided such armor or other supplies;
5.
The number of U.S. soldiers in the theater that are part of the active military
and the number of U.S. soldiers in the theater that are affiliated with
national guard and reserves;
6.
The number of U.S.
military personnel that are subject to stop-loss orders; and
7.
The maximum period of deployment for any member of the Armed Forces.
K. The President should be requested to
notify Congress, and provide justification for, any decision to pardon a
current or former Administration official, employee, or contractor.
Article II of the Constitution provides that the President has the power to grant reprieves and pardons for
offenses against the United
States, except in cases of impeachment.
The president’s report regarding pardons should include
information indicating:
1. the name and position of the individual who received the
pardon or reprieve;
2. the nature of the offense involved;
3. the date of the pardon or reprieve;
4. the justification for the pardon or reprieve;
5. the effect of the pardon or reprieve (e.g., was a term
of imprisonment waived or reduced);
6. whether the individual was involved in any on-going
criminal or civil investigation;
7. whether the President sought the recommendation of the
lead federal official who investigated or is investigating the individual as to
the positive or negative implications of the pardon or reprieve and the nature
of that official’s recommendation; and
8 whether the lead federal official who investigated or is
investigating the individual believes or has reason to believe that the pardon
or reprieve would interfere with an on-going investigation and what impact the
pardon or reprieve had on any on-going investigations into possible misconduct
by the president, vice president, or other officials within the Administration.
L. The
Charge of conspiracy to commit offense or to defraud United
States requires proof of agreement among two
or more persons to commit offense against United
States, overt act in furtherance of conspiracy,
and knowing participation in conspiracy by defendant. United
States v. Hinkle, 37 F.3d 576 (10th Cir.
1994). Hammerschmidt v. United
States, 265 U.S.
182, 188 (1924) (emphasis added). Numerous additional cases and authorities
support the proposition that 18 U.S.C. § 371 applies broadly to apply to a
series of misstatements by government officials. “Defrauding” the government, within meaning of statute
prohibiting conspiracies to defraud the United States or any agency thereof in
any manner or for any purpose, means obstructing operation of any government
agency by any deceit, craft or trickery, or at least by means that are
dishonest. United States
v. Caldwell, 989 F.2d 1056 (9th
Cir. 1993). To convict defendant of
conspiracy to defraud Government, Government must prove agreement to cacomplish
illegal objective against United States,
one or more overt acts in furtherance of illegal purpose, and intent to commit
substantive offense; Government, however, need not prove that defendant knew of
details of conspiracy, but only that he knew of conspiracy's essential
objective. United States
v. Gaddis, 877 F.2d 605 (7th Cir. 1989).
Term “defraud” as used in this section proscribing conspiracy to defraud
the United States not only reaches financial or property loss through
employment of a deceptive scheme, but also is designed and intended to protect
integrity of the United States and its agencies, programs and policies. United
States v. Burgin, 621 F.2d 1352 (5th Cir.
1980). Lawrence E. Walsh, Independent
Counsel in charge of the Iran-Contra investigation pointed out that the
deception of Congress statute applies even when the official is involved in
official government policy. In his final report, he concluded, “Fraud is
criminal even when those who engage in the fraud are Government officials
pursuing presidential policy.” Section
641 of title 18 imposes criminal penalties on anyone who “embezzles, steals,
purloins, or knowingly converts to his use or the use of another, or without
authority, sells, conveys, or disposes of any record, voucher, money, or thing
of value of the United States or of any department or agency thereof United
States v. Jeter, 775 F.2d 670 (6th Cir. 1985).
(1)
Committing a Fraud Against the United States (18 U.S.C. ' 371) This offense
is punishable by a fine and five years in prison;
(2)
Making False Statements to Congress (18 U.S.C. ' 1001) The penalty includes a fine,
imprisonment for not more than five years, or both;
(3)
the War Powers Resolution (Public Law 93-148);
(4)
Misuse of Government Funds (31 U.S.C. ' 1301) The illegal use of funds would cause an
automatic diminution in funds available to the guilty agency.
(5)
Anti Torture Statute (18 U.S.C.
§§ 2340-40A) federal laws and international
treaties prohibiting torture and cruel, inhuman, and degrading treatment
(including the Anti-Torture Statute, the War Crimes Act, the Geneva and Hague
Conventions, the United Nations Convention Against Torture, and Cruel, Inhuman
and Degrading Treatment) Conspiring to violate this prohibition is explicitly recognized
in the statute and is punishable up to life in prison if death results, and for
twenty years in prison otherwise.
(6)
federal laws concerning retaliating against witnesses and other individuals
(including Obstructing Congress (18 U.S.C.
§ 1505) for which the penalty for violations of this prohibition include a fine,
imprisonment for not more than five years, or both,, the Whistleblower
Protection Act (5 U.S.C. § 2302), the
Lloyd-LaFollette Act (5
U.S.C.A. § 7211), and Retaliating against Witnesses (18 U.S.C. § 1513) The penalty for witness
retaliation consists of a fine, imprisonment for not more than 10 years, or
both.
(7)
federal laws and regulations concerning leaking and other misuse of
intelligence information (including Executive Order 12958, Gathering,
Transmitting, or Losing Defense Information, and Gathering or Delivering
Defense Information to Aid Foreign Government). 18 U.S.C. § 793(d). The penalty for
violating this prohibition includes a fine, imprisonment for not more than ten
years, or both. 18 U.S.C. § 641. The penalty for a violation of this statute is
a fine, imprisonment for not more than ten years, or both; however, if the
value of the property is less than $1,000, then the prison term cannot exceed
one year.
M. The
concept of interfering with a lawful government function is best explained by
reference to two well-known cases where courts found that executive
branch officials had defrauded the United
States by abusing their power for personal or
political
reasons. One is the Watergate
case, where a federal district court held that Nixon’s Chief of Staff, H.R. Haldeman, and
his crew had interfered with the lawful government functions of the CIA and the FBI by causing the CIA to intervene in the FBI’s Investigation into the
burglary of Democratic Party headquarters. The other is U.S.
v. North, where the court found that Reagan Administration National Security Adviser John Poindexter, Poindexter’s aide Oliver North and others had
interfered with Congress’s lawful power to oversee foreign affairs by lying about secret arms deals during Congressional hearings into the
Iran/contra scandal. It is
unconstitutional and illegal for the President to engage the U.S. Armed Forces
without timely congressional authorization. As a constitutional matter, the War
Powers Clause, contained in article I, section 8, of the Constitution, gives
Congress the sole authority to declare war.
As a statutory matter, in 1973 Congress passed the War Powers Resolution
(“WPR”), which governs what powers the President is provided in order to send
armed forces into hostilities absent a congressional declaration of war.
The
WPR requires the President to consult with Congress “in every possible instance”
before sending troops into hostilities and to submit reports to Congress
whenever forces are introduced. Under the WPR, within sixty days after an initial report to
Congress is submitted or should have been submitted, the President must
terminate any use of armed forces unless Congress (1) declares war or
authorizes the use of force, (2) extends the sixty-day period, or (3) cannot
meet due to an attack on the United States. The D.C. Circuit Court of Appeals has
interpreted this to mean that if the President engages U.S. armed forces, he
has sixty days in which to obtain congressional authorization for the use of
force or to cease such military activity Campbell
v. Clinton 203 F.3d 19, 20 (D.C. Cir. 2000).
N. The War
Crimes Act of 1996 criminalizes actions that would be either “grave breaches”of
the Geneva Conventions33 or violations of Common Article 3 of the
Geneva Conventions.34 As President Bush has admitted himself,
Iraqi detainees held in Iraq are covered by the Geneva Conventions. Grave breaches are defined within the
Conventions as “wilful killing, torture or inhuman treatment, including
biological experiments, willfully causing great suffering or serious injury to
body or health;”36 and “wilfully depriving a protected person
of the rights of fair and regular trial.
It is a grave breach to remove a detained from the country where he is
located, except when his removal is necessary for his own safety. Common Article 3 prohibits “[v]iolence to
life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture;...outrages upon personal dignity, in particular humiliating and
degrading treatment” “The Geneva Conventions obligate detaining powers to
‘enact any legislation necessary to provide effective penal sanctions for persons
committing, or ordering to be committed’ grave breaches, and to ‘search for
persons alleged to have committed, or to have ordered to be committed, . . .
grave breaches, and shall bring such persons, regardless of their nationality,
before its own courts.’ (GPW art. 129). In addition to the foregoing penal
provisions for grave breaches, Article 129 directs each party to take measures
to suppress all violative acts short of grave breaches. The United
States is also a party to the UN’s Convention
Against Torture and Cruel, Inhuman and Degrading Treatment, which prohibits the
use of torture, defined as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person.” The United States
should accede to international treaties regarding the conduct of the U.S. Armed
Forces. The United
States should acquiesce to the International Criminal Court (ICC).
The ICC is the first permanent tribunal established to investigate and prosecute crimes of an international nature.
Its specific purpose is to
investigate (1) the crime of genocide, (2) crimes against humanity, (3) war
crimes, and the crime of aggression. The Constitution of the United
States, federal statutes, and federal
regulations serve to proscribe abuses of power and other species of misconduct
on the part of the President and other Executive Branch officials. Each of
these measures provides not only for different remedies against malefactors but
also for different adjudicators of such offenses. The United States has long recognized the legal principle of
command responsibility – that military officials can be held criminally
responsible for acts of their subordinates if they knew - or should have known
- of the transgressions and failed to stop them or even punish them after the
fact. In re Yamashita 327 U.S. 1 (1946)
the
preeminent case on command responsibility, held that a commander could be held
criminally responsibility for the actions of his subordinates. General Tomoyuki
Yamashita, the military governor of the Philippines
and commander of Japanese forces, argued that he could not be prosecuted for
the war crimes committed by his soldiers during World War II.
Deciding
that Yamashita would stand trial before military commissions for the atrocities
committed by his soldiers, the court held that a commander has “an affirmative duty to take such measures as were within his power and
appropriate in the circumstances to protect prisoners of war and the civilian population.”
Yamashita
was eventually found guilty of war crimes for failing to control his troops and
executed.
O. The Lloyd-LaFollette Act (5 U.S.C.A. § 7211) Also known as the “anti-gag rule,” this
statute passed in response to the Taft and Theodore Roosevelt Administrations’
attempt to silence their employees. It ensures that agency employees can
provide Congress with the information necessary to do its job.
It
states that: The Right of employees, individually or collectively, to petition
Congress or a Member of Congress, or to furnish information to either House of
Congress or to a committee or Member thereof, may not be interfered with or
denied. The government may not
retaliate against individuals who provide truthful information to law
enforcement officials. Section 1513(e) of title 18 prohibits anyone from
“knowingly, with the intent to retaliate, takes any action harmful to any
person, including interference with the lawful employment or livelihood of any
person, for providing to a law enforcement officer any truthful information
relating to the commission or possible commission of any Federal offense .
Exec.
Order No. 12948, 32 C.F.R. § 2001.10 et seq. (2005).
Executive Order 12958 governs how federal employees are awarded security
clearances in order to obtain access to classified information. It was last
updated by President George W. Bush on March
25, 2003, although it has existed in some form since the Truman era.
The executive order applies to any entity within the executive branch that
comes into possession of classified information, including the White House. It
requires employees to undergo a criminal background check, obtain training on
how to protect classified information, and sign a “Classified Information
Nondisclosure Agreement,” also known as a SF-312, promising not to reveal
classified information.
P.
Congress, specifically the U.S. House of Representatives, has the authority to
impeach Presidents, vice presidents, and civil officers of the United
States for abusing their power, including
violations of public trust or misusing federal resources; this may occur for
conduct that may not be criminal in nature. This authority is provided by the
Constitution, which states that “the President, Vice President and all civil
Officers of the United States,
shall be removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.”137 The
Constitution further provides that “the House of Representatives . . . shall
have the sole Power of Impeachment.”138 To date,
the House has impeached two presidents; and the House Judiciary Committee
approved articles of impeachment against a third president. The presidents in question are: Andrew
Johnson, Richard Milhaus Nixon, and William Jefferson Clinton. Each of these occurred while the House was
controlled by the political party in opposition to the president. In 1876, the
House approved and the Senate tried articles of impeachment against Secretary
of War William Belknap despite the fact that he already had resigned. The charge
against Secretary Blount related to selling an appointment to a military
position. No article of impeachment received the necessary two-thirds vote in
the Senate.
Q. Treason
and
bribery are defined in law. Treason is defined as
levying war against the United States
or giving aid to the enemy when owing allegiance to the United
States. 18 U.S.C. § 2381 (2005). Bribery is
the receipt of anything of value in exchange for the performance of an official
act. 18 U.S.C. § 201. The phrase “high
Crimes and Misdemeanors has been interpreted through application and through
examination of the Founding Fathers’ intent. A review of applicable legislative
history and congressional interpretations finds significant support for the
proposition that impeachment would lie for abuses and misuse of public office
and that, in particular, this would include giving false information to
Congress and misusing government agencies like the CIA. For example, in 1974,
the House Judiciary Committee approved three articles of impeachment against
President Nixon. The
Committee recommended impeachment because it found that the President caused
false statements to be made to federal investigators, withheld relevant
information from investigators, approved false statements to be made by others
to investigators, endeavored to misuse the Central Intelligence Agency, made
false statements to the public to deceive the public into believing a thorough
investigation had been conducted into potential illegalities. He also was found subject to impeachment
for failing to ensure the laws were faithfully executed when he had reason to
know his subordinates were impeding lawful inquiries.
Nixon resigned before the full House could
consider the articles of impeachment in H.R. REP. NO. 93-1305
(1974). Finally, the House passed impeached
President Andrew Johnson for his removal of a cabinet secretary in violation of
the Tenure of Office Act.
R. Our
review of relevant law indicates that conduct in question need not fit within a
criminal statute in order for it to be a “high Crime and Misdemeanor” and thus
impeachable. Founding Father James
Iredell, later an Associate Justice of the Supreme Court, noted that “in the
case of the president, or any executive or judicial officer wantonly abusing
his trust, he is liable for impeachment.
In the Federalist Papers, Alexander Hamilton explained that the subject
of impeachment would be “those
offenses which proceed from the misconduct of public men, or, in other words, from the abuse or
violation of some public trust. They are of a
nature which may with peculiar propriety be denominated political, as they
relate
chiefly to injuries done
immediately to the society itself.”148 Representative
Barbara Jordan, who spoke during the impeachment debate on President Richard Milhaus
Nixon, referred to Alexander Hamilton and noted that impeachment “is designed
to bridle the executive if he engages in excesses. It is designed as a method
of national inquest into the conduct of public men.” Relying upon readings of English law and
the Framers’ debates over the impeachment clause, legal commentators have
echoed this interpretation. Leading scholar on impeachment, Yale Law School
professor Charles Black argued that impeachable offenses are those that “(1) .
.. are extremely serious, (2) . . . in some way corrupt or subvert the
political and governmental process, and (3) . . . are plainly wrong in
themselves to a person of honor, or to a good citizen, regardless of words on
the statute books.” He summarized the nature of such offenses as that “are rather obviously wrong, whether or not
‘criminal,’ and which so seriously threaten
the order of political society as to make pestilent and dangerous the
continuance in power
of their perpetrator.” Similarly, Professor Michael Gerhardt looked
to Justice Joseph Story, who said, “the jurisdiction is to be exercised over
[impeachable] offences, which are committed by public men in violation of their public trust and duties. Those .
. . duties are, in many cases, political. . . Strictly speaking, then, the
power partakes of a political character, as it respects injuries to society in
its political character.” Further, contemporary experts agree that there are
different standards for impeachable and criminal conduct. Dean John D. Feerick
of Fordham University School of Law, in an article
published
in 1984, wrote: It is a fundamental principle that the House may impeach
presidents for misusing government resources and agencies and for providing
false information to the American public.
S. Censure
also lies as a remedy for Congress in situations where the President or other
public officials have abused their power or otherwise violated the Constitution
or laws of the United States. Censorship is the natural human response to
espionage, as indicated in the US Code, as an important element of personal,
homeland and national security.
Although not a crime, censorship is reprehensible to a society of
friends, it is however a justified when the actions of officials are
reprehensible and threatening to human life and environment and each House of
Congress can censure the official in question separately or the Houses can pass
identical measures to censure. The
typical vehicle for censure is a sense of Congress resolution expressing
disapproval or reproof for the official’s conduct. In this manner, Congress has
censured or attempted to censure eight presidents in U.S.
history and at least one senator. Conduct that has been found censurable includes the
misuse of official power and actions
in derogation of the Constitution and federal law, including the waging of unnecessary wars. For instance, a resolution was amended on the House floor to
include
disapproval of President James
K. Polk’s waging of an “unnecessarily and unconstitutionally
begun [Mexican-American] war.”
In 1834, the Senate censured President Andrew Jackson for dismissing a
Treasury Secretary who disagreed with his economic policies and for attempting
to install in his place a political crony. It also has been found to be censurable for
a President to allow political considerations to affect official government
action. Congress
has also censured a President for interfering with the authority of another
branch of government. In 1842, the House adopted the conclusions of a committee
report that concluded that President John Tyler had bestowed upon himself the
authority of the Legislative Branch. The report criticized the President for
“gross abuse of constitutional power and bold assumption of powers never vested
in him by any law,” for “[assuming] . . . the whole Legislative power to
himself;” and for the “abusive exercise of the constitutional power of the
President.”
In
addition, the House debated a resolution that would have censured President
John
Adams for inserting himself into a deportation case pending before the Judicial
Branch. Finally, Congress has considered censures of
presidents for dishonest conduct. The Senate indefinitely postponed a
resolution that would have censured President William Jefferson Clinton for
misleading and deceiving the American people. During full House debate of the Clinton
impeachment articles, Democratic Members attempted to censure President Clinton
but were denied the ability on procedural grounds, and insufficiency of
evidence in regards to war crimes committed in the aerial assault and
occupation of the Former Yugoslavian Republic(s) of Serbia and Montenegro. During House Judiciary Committee
consideration of the articles, however, the censure resolution was subject to a
vote. Other
resolutions were introduced in the House with respect to the same allegations. Congress’s power of censure is not limited,
however, to the president. Fifteen senators were expelled for inciting violence
against the government, attempting to withdraw certain states from the Union,
and disloyalty to the Union. Id.
Eight
senators have been censured for violating the secrecy of documents, fighting,
abuse of power, and financial irregularities related to political office. As a case in point, the House has censured a
cabinet secretary. In the 1860's, Secretary of War Simon Cameron distributed
government funds designated for purchasing military supplies to persons who
were not in the business of providing military arms. The Secretary ultimately resigned over an
unrelated matter, but the House censured Secretary Cameron a few months later
in April 1862, shortly after the beginning of the Civil War. The Senate has used its power of expulsion
and censure to discipline twenty-three of its own members. The most famous example occurred in the
1950's when Sen. Joseph McCarthy (R-WI) used his chairmanship of the Committee
on Government Operations to investigate alleged Communists in government,
Hollywood, and other aspects of American life at the end of the Korean War. than the articles of impeachment
approved by the House Judiciary Committee in 1974 against then President Nixon
for, among other things, misusing the CIA and making false statements to the
public to deceive them into believing a thorough investigation had been
conducted regarding their wrongdoing. The Ervin Commission in the 1970's was
instrumental in investigating the Watergate abuses of the Nixon Administration
and led to the impeachment hearings in the U.S. House Judiciary Committee. In
the past, the House also has created select committees to investigate serious
breaches of public trust, issues of national security, or other matters of
national concern. These have included potentially illegal or unethical conduct
by Presidents, such as the Reagan Administration’s sale of weapons to Iran in
the 1980's and U.S. military activity in Southeast Asia during the 1970's. More generally, the type of offenses
described herein which is central to Congress and the American people’s ability
to trust its Commander in Chief regarding the use of military force can
certainly be considered to be offenses resulting
from the abuse or violation of some public trust, as explained by Alexander
Hamilton in the Federalist Papers. Congress must investigate the exact
extent of the abuses of power and who was responsible, discipline responsible
officials, and enact reforms that could deter such abuses in the future.
Conyers, John Jr. The Constitution
in Crisis; The Downing Street Minutes and Deception, Manipulation,
Torture, Retribution, and Coverups in the Iraq
War 109th Congress. HA-3-3-06
Conyers,
John Jr. Preserving
Democracy: What went wrong in Ohio?
Status Report of the House Judiciary Committee Staff HA-5-1-05
Sanders, Tony J.
Hospitals & Asylums. Afghanistan
& Iraq v. USA
HA-5-29-06