I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, November 14, 2005

WMD Accusations & Patriotism: Reply to Jeff Goldstein

It is refreshing to engage in a debate about the Bush Administration's use of pre-war WMD intelligence without the usual obfuscating cliches and shrieking name-calling and rancor which almost invariably plague discussions of this issue. Rather than offer a point-by-point refutation to Jeff Goldstein's reply yesterday, which would likely just result in repetition, I wanted to highlight a few of the most significant points about which there is still something useful to say.

(1) Neither Phase I of the Senate Committee investigation nor the Robb-Silberman Commission examined whether the Administration distorted WMD intelligence.

Those who claim that it has already been proven that the Administration acted honestly with regard to WMD intelligence point to Phase I of the Senate Intelligence Committee investigation and the Robb-Silberman Commission. Goldstein’s defense of the “unpatriotic” label for those who believe the Administration lied about or exaggerated WMD intelligence rests largely on this claim.

But this assertion is simply untrue. The Senate Intelligence Committee expressly put off -- to the not-as-yet-completed Phase II investigation -- the question of whether the Administration distorted/lied about the intelligence it was provided, and the Robb-Silberman Commission made expressly clear that it was not examining that question.

Here is Michael Ledeen reporting in National Review on Jay Rockefeller’s description of the difference between Phase I and Phase II:

This report is said to focus on the intelligence "process" — that is, how information was gathered, analyzed, and provided to policymakers.

What a fine idea. But Rockefeller, at the press conference with Senator Roberts, was not happy about it. You could see that the poor man wanted, oh so desperately, to scream "Bush Lied!!!," but he couldn't go all the way. However, he certainly strained at his leash. Listen to this, for example:

The central issue of how intelligence on Iraq was — in this Senator's opinion, was exaggerated by the Bush administration officials, was
relegated to that second phase, as yet unbegun...

And here was Sen. Rockefeller’s description back in 2004 of what Phase II would, in part, entail:

According to a statement released by Rockefeller, the intelligence committee in February 2004 decided that Phase II would focus on five subjects. As he put it:

1. Whether public statements, reports, and testimony regarding Iraq by U.S. Government officials made between the Gulf war period and the commencement
of Operation Iraqi Freedom were substantiated by intelligence information;

The same article further reports:

Roberts' investigation had ignored such exaggerations of the Bush administration. At that press conference, Senator Jay Rockefeller, the senior Democrat on the intelligence committee, pointed this out:

I have to say, that there is a real frustration over what is not in this report, and I don't think was mentioned in Chairman Roberts' statement, and that is about the--after the analysts and the intelligence community produced an intelligence product, how is it then shaped or used or misused by the policy-makers?

Nor was the Robb-Sliberman Commission empowered to investigate this issue, as the Commission itself made expressly clear:

Silberman-Robb Commission Report, 3/31/05: "[W]e were not authorized to investigate how policymakers used the intelligence assessments they received from the Intelligence Community. Accordingly, while we interviewed a host of current and former policymakers during the course of our investigation, the purpose of those interviews was to learn about how the Intelligence Community reached and communicated its judgments about Iraq's weapons programs--not to review how policymakers subsequently used that information."

It is true that the Senate Committee purported that they found no analysts who claimed to have been pressured by the Administration to change their findings -- hardly proof that it did not occur. As Donald Rumsfeld is fond of observing: “An absence of evidence is not evidence of absence,” and there are all sorts of plausible reasons why career intelligence analysts would be reluctant (to put it mildly) to complain to a Senate Committee about pressures that were exerted on them from the highest levels of the Executive Branch.

But regardless of whether there was undue pressure on intelligence analysts, the fact remains that neither the Senate Committee nor the Robb-Silberman Commission has resolved the issue at hand -- whether the Administration lied about, or deliberately exaggerated, the findings of the intelligence community.

(2) Attacking the President, even if it is solely for political gain, is not evidence of a lack of patriotism.

The crux of Goldstein’s accusation of a lack of patriotism against those who are raising these WMD issues is contained here:

Those who do know how intelligence works—and yet continue to suggest that Bush lied or manipulated intelligence in order to take us to war—are more concerned with damaging the Bush presidency than they are with winning the war.
Does it really mean that someone is unpatriotic if they are “more concerned with damaging the Bush presidency than they are in winning the war”? What if they believe that the war can’t be won, or that the costs to U.S. national security of "winning" exceeds the benefits to be gained? Or what if they believe that the longer we stay in Iraq, the worse our national security becomes? Isn’t it then an exercise in patriotism for them to do what they can to discredit the Administration and the war in order to compel a faster withdrawal of troops?

The interests of George Bush are not synonymous with U.S. national interests. Harming the former is not tantamount to harming the latter. Indeed, many people believe that the greatest thing they can do for their country as American citizen is to undermine Bush at every turn and expose what they believe are his great flaws – just as many patriotic Americans believed this about Clinton and did exactly that. They are doing this not because they want to harm America (which ought to be the standard for being "unpatriotic"), but precisely because they think that’s what is best for their country.

Whether they are right or wrong about that, the motivation which is driving them is to do what they think will make America stronger and better. It may be that they are completely off-base in their judgment as to what is best for the country, but the fact that they are acting with that motive ought to preclude -- really, by definition -- an impugning of their patriotism.

And, I would be remiss if I failed to note that the GOP political figures who were attacking Clinton’s wars as an unnecessary and corrupt surely could be accused – to use Goldstein’s standard for being unpatriotic – of being “more concerned with damaging the [Clinton] presidency than they [were] in winning the war.”

Finally, the claim that Bush lied about or deliberately exaggerated WMD intelligence is not tantamount to a claim that Bush acted unpatriotically or did so with venal motives.

It could very well have been the case that the Administration concocted or exaggerated the WMD threat not because Bush wanted war for bad, selfish reasons (Halliburton, avenging Daddy, the oil industry, etc.), but for good reasons – because he genuinely believed that the war was necessary for vital American security interests independent of the WMD issue (e.g., to re-assert American military power, to re-shape the Middle East into a stable, democratic region; to establish long-term military bases; to reverse Muslim perception that the U.S. supports dictatorships for that region).

The problem that likely arose was that those good non-WMD justification for the war would be insufficient for selling the Congress and American people on the need for this war, and they thus decided – as Paul Wolfowitz now famously suggested – to emphasize the WMD threat in selling the war because it was the one thing everyone could agree upon.

Thus, to raise questions about the Administration’s veracity on the WMD question does not, by itself, suggest that the Administration waged this war for unpatriotic or even misguided reasons. It is to suggest only that they did so in order to sell the need for the war – a war which they likely believed, genuinely, was necessary for American vital interests.

(3) The existence of a consensus that Saddam had "WMD’s" does not preclude a finding that the Bush Administration lied about or exaggerated the intelligence.

Goldstein seems to be suggesting that as long as a particular assertion found its way into the NIE, then the Bush Administration cannot be said to have done anything wrong by discussing it, no matter what they said when discussing it. But that is just illogical on its face. Surely, it was possible for Bush Administration officials to have characterized certain of the threats discussed in the NIE in inaccurate and misleading ways – by, for instance, describing potential threats as certain, by exaggerating the magnitude, immanence and nature of the threat, or by deliberately confusing Americans as to what the NIE said.

Moreover, as Administration officials surely knew, Americans would rely on the President to tell them the truth about the intelligence they had and the nature of the threats, so if he prevaricated about or exaggerated those threats, that is a very big deal regardless of what is in the NIE. My view on this issue is set forth in a post I wrote a few days ago:

[T]he way in which this debate has been cast is obscuring, rather than illuminating, its most pressing issue. The question that is being asked -- “Did the Bush Administration lie about WMDs?” -- is far too general to be useful, as it assumes that all WMDs were created equal, so that as long as it can be shown that there was reason to believe that Saddam had, say, a chemical here and there that could be weaponized (i.e., "WMDs" broadly speaking), then the entire panoply of pre-war Bush WMD claims would be vindicated, since that would mean that there was good reason to believe that Saddam did, indeed, have "WMDs".

That is just absurd. The WMD scare would never have worked if it was just about a couple of chemical weapons. What scared everyone into supporting the war was the prospect that Saddam had or was obtaining nuclear weapons, not just a few chemicals. Making that claim even scarier and more potent was the claim that Iraq was working with Al Qaeda.

Thus, even assuming it to be true for purposes of argument that there were reasonable grounds to believe that a pre-war Saddam had “WMDs” in the board sense of that term -- i.e., to include commonplace chemicals -- the fact that specific claims which were quite dubious were nonetheless advanced without qualification by the Administration regarding Saddam's nuclear capability and the Al Qaeda connection is very much of a big deal. It was the “mushroom clouds” and the nuclear suitcase bombs that scared so many people into supporting the war. For that reason, if the Administration's claims about that were unsupportable or exaggerated, it is not even remotely a defense to say that, well . . . there was some good intelligence that Saddam had a few chemical weapons.

Or, put another way, the fact that there was some evidence to support some of the pre-war WMD claims by the Administration does not, in any conceivable way, serve to justify or excuse the dissemination of other WMDs claims by the Administration for which there was no credible evidence or for which there was substantial evidence that the claims were false.

What sold this war to the American people and to Congress were these fears. People had these fears because of the things Administration officials said. Documents and evidence now publicly available for the first time make clear that there was substantial reason to have grave doubts about the veracity of those claims at the time they were made, even though the claims were being made by the Administration as though no doubts existed.

It cannot possibly be unpatriotic to be concerned about that and want to get to the bottom of it. It could be argued that what is unpatriotic is the desire not to do so.

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