Rep. John Conyers has written: “Why were the President and other high-ranking administration officials so definitive in their statements that Iraq possessed WMD?... We deserve to know whether these statements were the result of a ‘massive intelligence failure’ as some have contended or a deliberate deception of the Congress and the American people.”
Good question, followed by a perfectly legitimate demand for answers. But I’m afraid any hope of pocketing answers to the question of “deliberate deception” by George W. Bush is quixotic at best. However unwittingly, Conyers himself offers a clue as to why this particular line of inquiry will lead to a dead end:
“Essentially, the question boils down to what lawyers call ‘mens rea.’ Before a defendant can be convicted of a crime the judge or jury must find not only that the defendant committed the wrongful act but also did so with a state of mind indicating culpability. In the case of a fraud, the jury must find that there was intent to deceive.”
There’s the problem: proving that Bush possessed a “state of mind indicating culpability” and finding conclusively that he bore an “intent to deceive.” Go ahead and make George’s day. Just try to prove that. The challenge would be tantamount to reversing a criminal conviction because of, say, prosecutorial misconduct. It’s an accusation nearly impossible for the wronged party to document. It’s like trying to prove you can read minds.
Yes, circumstantial evidence points overwhelmingly to official deception and that “the intelligence and facts were being ‘fixed’ around the policy.” Any reasonable person would be hard pressed to intelligently dispute that conclusion. But nail Bush with it? Good luck.
The president would have several effective defenses. He could claim ignorance -- a profoundly believable defense -- or he could start listing more “buffers” than Michael Corleone. Another option would be a combination of these: “What, me? Fix intelligence around something? Hey folks, I only know what the slam dunkers tell me I should know.”
I understand that those demanding accountability are tempted to take the “deception” road. Plainly, there is mountainous evidence of deception. But they’ll never pin it on Bush.
What I don’t understand is the lack of near-singular focus on the Downing Street Memo’s essence, which points demonstrably and directly to what Bush knew and conspired to hide. In the DSM the British attorney general bluntly declared the desire for regime change was not a legal base for military action, while the memo revealed that illegal regime change was, in fact, at the heart of Bush’s intentions, concreted into policy.
This illegality was also at the core of the subsequent conspiracy to deceive. But one need not prove the subsequent acts of deception to prove original intent of illegality -- the knowing violation of international law by launching an invasion in the absence of provocation. This is the one overwhelmingly provable fact that leaps off the DSM’s pages. It was Bush’s “state of mind indicating culpability.” He knew his policy of regime change through invasion was illegal in itself.
As Conyers summarized the big picture: “This Administration had a cover story, namely that a clear and present danger to the United States was posed by Iraq's WMD, for something they knew they wanted to do: go to war with Iraq.”
Hence, the even bigger picture: The conspiracy to deceive -- the “cover story” propagated to justify war -- was, to frame it more precisely, a conspiracy to conceal. And it was a conspiracy to conceal a fundamentally illegal policy from the get go.
Deception may be difficult to prove, but the DSM spotlights Bush’s policy of violating international law in black and white.
Does international law apply to a U.S. president? According to Stuart Malawer, a professor of law and international trade at George Mason University, it does. “A minority of jurists and international lawyers, including myself, acknowledge a right of anticipatory self-defense in very rare circumstances, where there is a very real threat of imminent attack. Anything other than this interpretation makes this right of self-defense too subjective and the prohibition against the use of force in international relations illusory.”
Furthermore, and perhaps of superior relevance, Professor Malawer points out that “the Supreme Court has reminded us [in three separate decisions] that international law is applied by U.S. courts.”
That works.