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Forgery, Fakery and Fatigue (Scandal, That Is)

by DAVID REMINGTON

Okay, quick show of hands:  who was surprised by the recent “revelation” in Ron Suskind’s new book, The Way of the World:  A Story of Truth and Hope in an age of Extremism, that the Bush White House directed the C.I.A. to forge a letter from the Iraqi head of intelligence to Saddam Hussein designed to portray a false link between the September 11 attacks and Iraq?

That’s what I thought.  Unless you’ve been living under a rock or otherwise hopelessly deluded by the endless stream of neocon propaganda sludge, this latest from Suskind is just another tendril in the dark churning cloud of villainy the Bush Administration has left in its wake.

If I may steal from the Bard, there’s the rub.  Has the public grown so inured with reports of the lies, scandals, fabrications, and bizarre schemes that have dribbled almost daily from this White House, that this story be greeted with a large, collective yawn?   That may well be the case, but there are legal and logistical implications to this latest bit of Keystone Cop-style cloak and dagger plot that may give it legs.

According to Suskind, high-level Bush Administration officials ordered the C.I.A. to forge a hand-written letter purportedly from Tahir Jalil Habbush, Saddam’s intelligence chief, to Saddam, indicating, among other things, that Mohammed Atta, infamous September 11th hijacker, had been trained in Iraq.  The letter was dated July 1, 2001, but its “existence” reported in late 2003, at a time when the United States was still fumbling around searching for non-existent WMD’s.  This bogus letter came in handy to supply a much-desired justification for attacking Iraq, and naturally, influence U.S. public opinion.  The story of the letter was picked up and reported with orgasmic glee by such towering journalistic giants as the Fair and Balanced-Meister himself, Bill O’Reilly.

Now, even assuming a Congress that actually cared about the Constitution and the Rule of Law, and congressional leadership with the testicular fortitude to pursue the matter, the reign of mad King George will soon be ending, and there likely is not time to the realize the blessings of this revelation in the short time remaining in this presidential term.  Yet, this story could very well survive the end of the current administration and become a gift that keeps on giving.

Ron Suskind speculates that this flimsy scheme could very well violate a federal statute prohibiting the C.I.A. from pursing covert activities designed to influence public opinion or the media.  When directed by the White House, the deliberate violation of this law is a potentially impeachable offence.

The statute Suskind is referring to is 50 U.S.C § 413b Presidential approval and reporting of covert activities.  This section of law details the circumstances under which the president may approve covert activities of the C.I.A.  It also lists requirements for reporting to Congress and congressional oversight.  More specifically, 50 U.S.C. § 413b(f) reads, “No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.”

If this White House scam is proven, we can be certain that the Bush Administration, or its legal defenders, will attempt to scuttle any investigation or prosecution.  The road blocks thrown up will likely be variations of the following, all of which could easily fall against the hand of any reasonably diligent investigator or prosecutor:

Statutory Interpretation

One angle for Bush Administration defenders is to claim simply that the statute does not apply to the forged letter.  After all, the U.S. had already invaded Iraq, and besides, the forgery was developed to influence international, not domestic opinion.

Nice try, as they say, but this approach is transparently evasive, and well, let’s face it, lame.  There is no question that public opinion was turning by late 2003, and the Bush Administration certainly desired a little public relations pick-me-up.  It was also clear that the story would make into the U.S. media and be used by the war’s defenders.

Executive Privilege

Always a favorite of tyrannical executive branch leaders, the Bush Administration, or its legal successors are almost certain to trot out this old horse.  The problem is that Executive Privilege, when applied, is generally seen as a shield against those seeking to pierce the wall of confidence between the executive branch and its top advisors.  Without it, so the story goes, presidents would be constrained from seeking frank advice.  By the same token, those advisers would be loath to engage in frank discussions with the executive, fearful that their words could someday make it in to the public domain.

Again, in the forged letter scenario, the Executive Privilege argument falls flat.  Clearly the claim would not be used as a shield, but as a sword to justify actually directing a federal agency to engage in potentially illegal behavior.  Further, Section 413b Subsections b and c explicitly provide for reporting to Congress of presidential approvals of covert activities.

Executive Privilege has just left the building.

National Security

Another horse, older and more tired than Executive Privilege, would be almost sure to raise its wizened head in the event of an investigation or prosecution.  Bush Administration defenders would argue that such information cannot be discussed in public in the interest of national security.  Now, courts have been historically kind to presidents and stretched this concept about as thin as it can go without breaking.  However, the same weaknesses that apply to the Executive Privilege “defense” apply to the National Security argument.  One just cannot escape the fact that if the concocted forgery scam is true, it was carried out in direct violation of a specific federal statute created to curtail just such behavior.  And again, the provisions for congressional oversight belie any claim that activity of this nature could not be investigated.

As the days of the Bush Administration come to a close, it will be interesting to see where this story goes.  Congress has the tools to flesh out the facts, and the legal footing to push back against the standard administration stonewalling.  Whether Congress will do its job remains to be seen.

In the weeks and months to come more information will likely emerge about the forged letter scam.  As more facts come to light, it seems more and more possible that Ron Suskind’s revelation is true (see Joe Conason’s piece in Salon, New Evidence Suggest Ron Suskind is Right).

In the meantime maybe we can dream that finally this is the one.

David W. Remington, J.D., a former law professor, works as legal counsel in private industry in the Eastern Province of Saudi Arabia. He can be reached at: drem1960@yahoo.com
 

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