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