Monday, May 29, 2006


“MIAMI, -- Talk radio icon Rush Limbaugh surrendered to authorities Friday on a charge of committing fraud to obtain prescription drugs, concluding an investigation that for more than two years has hovered over the law-and-order conservative.

The charge will be dropped in 18 months, said his attorney, Roy Black, provided that Limbaugh continues treatment for drug addiction, as he has for 2 ½ years. According to an agreement with the Palm Beach County state's attorney's office, Limbaugh also must pay $30,000 to defray the costs of the investigation, as well as $30 a month for his supervision.”

Washington Post, April 28, 2006.

“There’s nothing good about drug use. We know it. It destroys individuals. It destroys families. Drug use destroys societies. Drug use, some might say, is destroying this country. And we have laws against selling drugs, pushing drugs, using drugs, importing drugs. And the laws are good because we know what happens to people in societies and neighborhoods which become consumed by them. And so if people are violating the law by doing drugs, they ought to be accused and they ought to be convicted and they ought to be sent up. What this says to me is that too many whites are getting away with drug use. Too many whites are getting away with drug sales. Too many whites are getting away with trafficking in this stuff. The answer to this disparity is not to start letting people out of jail because we’re not putting others in jail who are breaking the law. The answer is to go out and find the ones who are getting away with it, convict them and send them up the river, too.”

- Rush Limbaugh, speaking on his syndicated radio talk show, Oct. 5, 1995.

When it comes to the “War on Drugs” and its casualties, sometimes I feel kind of like Forrest Gump, a dispassionate observer encountering all parties to the problem. One day I might be in my office, listening to a sad tale of a marriage or a family ruined by alcoholism or drug addiction. Another day I’m in court representing an addict caught with drugs or a person accused of selling them. A third day I might be chatting up a prosecutor or drug enforcement police officer about the absurd treadmill on which the criminal justice system runs in a vain hope of stemming the tide of illegal drugs. A fourth day I’m in Juvenile Court representing children abandoned by a crack addicted mother.

The stories are different but all have essential similarities. A mother/father/wife/husband/son/daughter is hopelessly addicted to/a constant user of alcohol/crack/crystal meth/prescription drugs. The addict will avoid responsibility and deny using even when caught red handed. One man’s wife was found passed out in a crack house with a pipe by her side, yet she denied using the drug. Family members will blow the rent or grocery money and disappear for days. Adult children steal from parents to get money to buy drugs. Women prostitute themselves at local motels, knocking on doors to score a few dollars to buy crack. The State eventually takes their children, but the lure of the crack high is stronger than maternal instinct, and eventually their rights are terminated as they repeatedly fail to comply with the provisions of a court ordered plan which includes six consecutive monthly drug free screens.

Addicts may go to rehabilitation numerous times, but success is elusive. Reality is that there is nothing any other human being can do or say which will stop an addict from using again. Until 1985, the year that crack made its appearance in Southwest Georgia, a bad check case, a shoplifting case, or a forgery case, was nothing more or less than what it appeared on the surface. In the 20 plus years since, the great majority of those charges are drug related, as the addicts raise cash to buy drugs.

It was no wonder that during the 1980’s incredible pressure built on elected officials to do something- anything- to stem the tide of imported and home grown drugs and the consequences of addiction. Unfortunately, what we ended up with is a schizophrenic set of laws in which some rich celebrity abusers- such as Oxy-Contin abuser Rush Limbaugh- can walk out of a courtroom with a slap on the wrist and a promise of a clean record, while the poor face years of imprisonment for the identical crimes.

Recently I sat down in a small windowless room in a nondescript building with a drug enforcement officer, shooting the breeze. Although he has nominally been my opponent in several cases, he and I get along fine. Our conversation turned to the effects of his unit’s interdiction efforts in a local community. What he said didn’t surprise me: arrest one dealer, and a few days later another one will pop in to take his place. No matter how many arrests they make, the true measure of their effectiveness is the price of the product. If the price is going up, then they are affecting the supply. Currently, crack is relatively cheap-- $20 for a small piece, called a “rock,” which is about two tenths of a gram. The officer privately agreed with my observation that driving up the price doesn’t solve the problem. That just means an addict will have to steal more, pawn more, or prostitute more to get the money for the same amount of drugs. The officer frankly admitted that law enforcement can’t solve the drug problem, and he opined that no Congressman or legislator will ever dare say so.

Once, several years ago, in a moment of rare candor, a United States attorney admitted in response to my question at a local bar association meeting that marijuana offenses should not be in the criminal justice system. He said that enforcement of laws against marijuana offenders was wasting valuable federal and state resources, and he ventured- off the record- that decriminalization of the possession of marijuana was a desirable goal. Many judges and prosecutors will privately concede that our drug laws are unfair, absurd, and counterproductive. Most agree with the former U.S. Attorney that marijuana should be decriminalized. The realists understand that drug problems should be dealt with as public health problems the same way we do with alcoholism, criminalizing only the conduct which affects persons other than the user, such as D. U. I. laws.

Few Americans are aware that annual deaths from aspirin and other over the counter pain killers, about 7,500 a year, outrank deaths from illegal drug overdoses and reactions, about 6,000 a year. Annual marijuana deaths are 0, whereas legal tobacco products kill approximately half a million a year and deaths related to alcohol are in the hundreds of thousands. But the responses of Congress and presidents to facts and reality have typically been complete and utter hypocrisy, not unlike that of Rush Limbaugh, who never gave a moment’ consideration to turning down the kind of sweetheart deal he had railed against on his own show. Except for a very few honest public figures like Baltimore Mayor Kurt Schmoke and National Review founder William F. Buckley, the typical response is: lock em up, make penalties harsher, enact death penalties for drug kingpins. But the unspoken and unwritten exceptions are when the abuser is rich, a politician or a celebrity.

Our last two presidents are admitted illegal drug and/or alcohol users. Clinton famously said that he smoked marijuana but didn’t inhale. Bush confessed to having a drinking problem until he quit at age 40, and he has at least one recorded D.U.I. on his rap sheet from Maine in 1976. Both have been plausibly accused of cocaine use, and Bush reportedly performed community service in Houston in 1972 to get a cocaine possession charge dismissed.

Clinton was supposedly an “if it feels good, do it” liberal and Bush was once (hard as it may be to believe at this point) a self- proclaimed “compassionate conservative." But instead of benefitting from their experiences and treating these issues with understanding and compassion, they have been willing to have their Justice Departments oppose medical use of marijuana for chemotherapy patients and for people with terminal illnesses. Both supported Draconian laws which have ruined the lives of casual drug users like themselves and imprisoned persons for life without parole on drug charges, even though no crime of violence was involved. Clinton the “liberal” and Bush the ‘States’ rights conservative" had their attorneys general go to the Supreme Court to overturn California voters’ decision in a state referendum to allow marijuana use where medically necessary. The case was U.S. v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001); the suit started while Clinton was president, then was argued and decided under Bush.

Because our nation suffers from short attention span, we have long since forgotten the effects of Prohibition from 1920 to 1933, when the 18th Amendment prohibiting the sale of alcohol generated organized crime, official corruption, and open disdain for the law in speakeasies throughout the country. Thirteen years later, the country having realized how miserably the noble effort had failed, the 21st Amendment repealed the 18th. Similarly, the decades long “War on Drugs” has spawned cocaine cartels in South America, the Golden Triangle of Southeast Asia, and drug mules hauling their wares to nationally organized street gangs throughout America.

Undoubtedly, leadership on the issue of dealing with drug problems in a sane and intelligent fashion instead of the “burn the witch” hysteria and hypocrisy which has prevailed over the last two decades will have to come from the top. A governor or a president will have to stand up and tell the nation the harsh truth: the law can only do so much, and in the case of drug addiction, the law has created far more problems than it has solved. I’m not holding my breath.

Tuesday, May 23, 2006

Don’t Know Much about History

Bill and Ted discovered that learning about history can be fun in this 1989 film

The highest law in the United States was created in a document in the year ______. That document is called the:__________________(1).

I spent the last two semesters teaching a college class. On May 1st of this year, as in several prior years, I visited a local public school on Law Day and spoke about the history of our legal system, including the Bill of Rights. In previous years I’ve guest lectured in college classes, and occasionally visited classes in local schools to talk about my profession. Every time I visit a class or school I ask questions about the history of our country and its legal system, and I pay attention to the answers. In 1996 I founded a tutoring program in the Dougherty Public Schools which paid gifted students from Westover High School to go to Magnolia Elementary School’s after school program and tutor individual students in reading and math. (It was extremely successful, which explains why the School Board let it die after a year.)

What I’ve seen scares me. I can mention the name of a rap star who appeared at a Superior Court hearing in Albany last fall (Chris Bridges, a/k/a “Ludacris”) and every member of the class knows who he is. I ask where Freedom of Religion, Freedom of Press, Freedom of Assembly, and Freedom of Speech are found (2) , and 75 percent of my audience gives me blank stares.

When we discuss the history of our country, half of my class might think that the Revolutionary War was fought in the 19th century (3). If Ben Franklin, Ulysses Grant, and Alexander Hamilton weren’t on our money, most students wouldn’t have the slightest idea who they were. (Sometimes it isn’t all about the Benjamins.)

Things I took for granted that every American past grade school should know- (4) how many branches were created in the document which is the blueprint for our government- it turns out that less than half can answer on a written exam.

When I ask them how law is created (5) and who creates it in our country, a slightly more esoteric question, to be sure, no one knows the complete answer. Many people know the answer to the question: What is the highest court in the United States (6)? Virtually no one knows the name of the Chief Justice of the United States (7) .

Who fought in World War I (8) ? World War II (9)? Who said “Never get involved in a land war in Asia and later warned against the “military-industrial complex (10)?” Why did we send soldiers to fight in Vietnam (11) ? What were the “killing fields” of Cambodia and who stopped the killing (12)? These are the things that every American should know before choosing our leaders and our leaders should know when evaluating our country’s obligations in places like Rwanda and Darfur.

There are two separate court systems in the United States but both have their final appeals heard by the same court. Those two systems are called _________________ courts and _________________________ courts. Decisions involving every American are made daily in those places, but most don’t know how the judges are chosen or what their jobs entail.(13)

Oh yeah, the title of this column is from.... (14)

ANSWERS (all answers are from my walking around knowledge. Any errors are entirely due to my laziness in not looking them up.)

1. 1787, Constitution.

2. The First Amendment to the Constitution.

3. It was 1775-1783. Franklin was our emissary to France and was a signer of the Constitution, Hamilton was the first Secretary of the Treasury, shot dead in a duel with Vice President Aaron Burr circa 1803. Grant was a Union civil war general who accepted Confederate Robert E. Lee’s surrender at Appomatox Courthouse in 1865 and served two terms as President (1869-1877).

4. Three: Legislative (Congress), Executive (President), and Judicial (Supreme Court).

5. Statutes by the legislature and common law in case decisions by the judiciary.

6. Supreme Court of the United States.

7. In my lifetime, John Roberts, who replaced William Rehnquist, who replaced Warren Burger, who replaced Earl Warren.

8. When the war began in 1914, the Central Powers were Austria-Hungary, Germany, the Ottoman Empire, and Bulgaria. The allies initially included France, Great Britain, Russia (which dropped out after their second revolution in 1917), Italy, and the United States, which entered the war in 1917.

9. The Axis Powers when the war began in 1939 were Germany, Italy (on the other side this time under Fascist Benito Mussolini) and Japan. Russia signed a treaty with Germany in 1939 and divided Poland with Germany, but was later attacked by Germany in 1941. The Allies included France, which surrendered in 1940, Great Britain and the Commonwealth Nations, including Canada and Australia, which fought fore the duration, 1939-1945, and the United States, which didn’t enter the war until December 1941, after the Japanese attacked Pearl Harbor.

10. United States President Dwight Eisenhower (1953-1961) after the French requested U.S. assistance in Vietnam circa 1954. This occurred shortly after we obtained a cease fire to end the Korean War (1950-1954). His warning came as he left office, when he accurately forecast the now decades long unholy alliance between high Pentagon officials and huge defense contractors which employed former politicians and members of the military.

11. Our military intervention in Vietnam began in earnest shortly after the 1961 Bay of Pigs fiasco when an ill fated and poorly conceived CIA operation to overthrow Castro failed under a new President, John F. Kennedy. Kennedy had inherited the invasion plan from the Eisenhower Administration. After the U.S. refused to assist the Cuban exiles who landed at the Bay of Pigs and the Cuban military handily defeated them, Kennedy’s advisors, including his brother, Attorney General Bobby Kennedy, felt that the Soviet Union wouldn’t respect Kennedy unless he showed that he was willing to make a military commitment to fighting Communism. Vietnam was an opportunity to showcase his willingness to be tough, much as, 32 years later, President Bush and his neoconservative advisors decided to use a military invasion of Iraq as a demonstration of America’s military might.

12. After President Nixon authorized an incursion into Cambodia circa 1970 to stop the North Vietnamese and Viet Cong from using the erstwhile neutral country as a vacation spot and resupply route, the local Communists under leader Pol Pot eventually overthrew the monarchy and when the U.S. pulled out of Southeast Asia in 1973-1975, the Pol Pot lead communists murdered all intellectuals and potential opponents of the regime. They first drove them out of the cities into the countryside (hence “killing fields.”) They went so far as to kill people who wore eyeglasses as suspected intellectuals. The killing was ended not by the U.S. or any other democracy, but by the Vietnamese, who invaded the country and deposed Pol Pot.

13. State Courts and Federal Courts. There are 50 states (many students still don’t know this) and the federal system has three tiers- district courts in each state, circuit courts of appeals, and the Supreme Court. Federal judges are all appointed for life; most State judges are elected.

14. A Sam Cooke song of the 60’s called “What a Wonderful World.” (And I cheated and looked that one up.)

Monday, May 22, 2006


There are thousands of police-civilian encounters each day which end without violence

There is no doubt that had Lee County Deputy Sheriff Donnie Spillers not been wearing a badge the night of February 14, 2005, at this moment he would be in jail beginning a life sentence for felony murder, along with a 20 year sentence for aggravated assault and another five years for possession of a firearm during commission of the crimes. Instead, Spillers was convicted last week by a Lee County jury of two relatively minor felonies: violation of his oath of office and false statements. He walked out of the courtroom sentenced to five years concurrent probation on each count. He will also be required to undergo mental health counseling and perform community service. If Spillers successfully completes his probation, the conviction will be erased from his record under Georgia’s first offender statute.

In spite of recent Herald Squawkbox criticisms of the Spillers’ jury (typical comments: “Each of you jurors should be ashamed of yourselves,” “The criminal justice system has reached an all-time low,” and “I always heard if you knew the right people in Lee County you could get away with anything”), reasonable jurors would most likely have rejected any defense to the fatal shooting in the head of unarmed 17 year old Rodger Wesley Beaver if the accused had been a private citizen.

But the problems with this prosecution began at the outset when the case was presented to the grand jury. Had the Southwestern Judicial Circuit District Attorney disqualified herself, there is no doubt that a special prosecutor would have asked for and received a felony murder indictment from a grand jury. Although it may seem strange to a lay person, that charge would have been much harder for Spillers to defend than the involuntary manslaughter charge the District Attorney sought and received. Spillers’ very able legal counsel, Albany’s Pete Donaldson and Leesburg’s Patrick Eidson, must have thanked their good fortune that the prosecution was so incompetent. That fact became evident when The Albany Herald reported on May 20th that an unidentified juror blamed the not guilty verdict on “the way the law was written.”

Involuntary Manslaughter was the wrong charge

Speaking as a defense lawyer who has defended murder cases and other violent crimes, the fault lay not with the written law but with the District Attorney who drafted the indictment and presented the case to the grand jury. The misdemeanor version of involuntary manslaughter which was charged in this case is defined in the Official Code of Georgia Annotated (OCGA) § 16-5-3:

“(b) A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. A person who commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner, upon conviction thereof, shall be punished as for a misdemeanor.”

I’ve practiced law for thirty years and I still find that language confusing, especially as it was used in the Spillers’ prosecution. The question that first came to my mind was: what “lawful act” could Spillers possibly have been engaged in when he shot the young man in the head? The second question was: what was the “unlawful manner” in this case? So I sympathize with the 12 trial jurors who had to wrestle with it. (For those who are interested, the felony version of involuntary manslaughter is equally confusing: “when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.”)

Simply put, involuntary manslaughter was the wrong crime to charge in this prosecution. When a person shoots and kills an unarmed person who has not committed a violent act, is not threatening to commit a violent act, and who poses no danger to the shooter or a third party, the correct charges would have been aggravated assault and felony murder. The pertinent paragraph of the aggravated assault statute, OCGA § 16-5-21. states:

“(a) A person commits the offense of aggravated assault when he or she assaults:

(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury;”

Section 16-5-20 of the Code defines an “assault” as occurring when:

“ A person ...

(1) Attempts to commit a violent injury to the person of another; or

(2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”

Spillers could have been convicted of felony murder

The facts in this case unquestionably lead to the conclusion that Spillers committed an aggravated assault on Beaver when he discharged his gun in Beaver’s direction. Because Beaver died during the commission of this felony, the law makes it felony murder, which is defined as follows:

“16-5-1. Murder; felony murder.

(c) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.

(d) A person convicted of the offense of murder shall be punished by death or by imprisonment for life.”

A quick search of my case law data base reveals that there have been over 280 cases decided by the Georgia Supreme Court involving felony murder with aggravated assault as an underlying felony. Here’s a sample quote from a recent decision: Smith v. State, S05A1873 (Ga. 2006):

“The jury found Smith guilty of felony murder with aggravated assault as the underlying felony, and one count of possession of a firearm during the commission of a felony.”

That decision also makes it clear that Spillers could also have been charged with possession of a firearm during commission of the aggravated assault, a felony with a separate 5 year prison sentence:

“16-11-106. Possession of firearm or knife during commission of or attempt

(b) Any person who shall have on or within arm's reach of his or her person a firearm... during the commission of, or the attempt to commit:

(1) Any crime against or involving the person of another;”

Spillers knew his only hope was self defense when he planted the knife

What makes the argument that the District Attorney bungled the prosecution particularly compelling is the undisputed evidence that Spillers went to the trunk of his car and retrieved a knife, which he then planted in Beaver’s vehicle. Ironically enough, Spillers knew the law better than the District Attorney, because he immediately realized that his only possible defense for shooting an unarmed boy who was not threatening violence was to put a deadly weapon within reach of the victim. Testimony at trial established that Spillers planted the knife after he asked his partner, Deputy Sandra Pressley Fordham for a “throw down gun” to put near Spillers. When she refused, he used the knife.

The only possible reason for Spillers to need a gun or knife to put within reach of Beaver was to create a defense of justification- that Spillers was acting in self defense when he committed the homicide. The law on self defense, OCGA § 16-3-21, allows a person to use “deadly force” only when “... he ... reasonably believe[d] that such force [was] necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.”

Rumors have swirled that Beaver was no stranger to Spillers- that a “love triangle” was somehow involved and that there was bad blood between Spillers and Beaver. If that is true, then the District Attorney dropped the ball by not presenting evidence of motive. If such evidence existed, that would have supported an indictment for both felony murder and malice murder- a killing where the accused intended the death of the victim. If the civil suit by Beaver’s estate goes to trial, we may learn whether or not the rumors are fact or fiction. But even without evidence of motive, the circumstantial evidence- the fact that Beaver was unarmed, was not threatening Spillers, and that Spillers planted the knife- was overwhelming that Spillers committed an aggravated assault without justification, which should have led to a conviction for felony murder.

Monday, May 15, 2006

PART III: How and why a cabal of “zealots” hijacked American policy and caused an unnecessary war

Marine Lt. General Greg Newbold left the service after “zealots” determined to invade Iraq hijacked American policy and diverted resources away from the war on terror

(this column will appear in the 5-18-06 THE ALBANY JOURNAL)

“In 1971, the rock group The Who released the antiwar anthem "Won't Get Fooled Again." To most in my generation, the song conveyed a sense of betrayal by the nation's leaders, who had led our country into a costly and unnecessary war in Vietnam. To those of us... who became career members of the military during those rough times--the song conveyed a very different message. To us, its lyrics evoked a feeling that we must never again stand by quietly while those ignorant of and casual about war lead us into another one and then mismanage the conduct of it. Never again, we thought, would our military's senior leaders remain silent as American troops were marched off to an ill-considered engagement. It's 35 years later, and the judgment is in: The Who had it wrong. We have been fooled again.”

From 4/9/06 Time Magazine article by Marine Lieutenant General Greg Newbold, the Pentagon's top operations officer from 2000-2002 during the buildup for the war in Iraq.

In the Fall of 2002, with Osama Bin Laden still uncaught in Afghanistan/Pakistan and American military forces committed to hunting him down along with the remaining members of Al Qaida in Afghanistan, President George W. Bush suddenly diverted essential military assets away from Afghanistan and the fight against the orchestrators of the 9-11-01 attacks. Instead, hundreds of thousands of troops were massed on Iraq’s border. On March 19, 2003, he ordered a preemptive invasion of Iraq, using as a pretext an alleged threat from Saddam Hussein’s imminent use of weapons of mass destruction, including nuclear and biological weapons. $300 billion dollars, 2,400 dead Americans, and tens of thousands of dead Iraqi civilians later, the President’s decision has led to anarchy, civil war, a breeding ground for terrorists, the loss of our credibility and goodwill throughout the world, and a tripling of gasoline prices to $3 a gallon. Why did this happen? Who caused it?

General Newbold writes that the invasion of Iraq was “an unnecessary war” foisted on America by a group of “zealots” who had taken over the government. Highly upset with the diversion of resources away from hunting the terrorists who attacked America on 9-11, the general pointed out to his superiors that the “zealots ' rationale for war made no sense:”

“And I think I was outspoken enough to make those senior to me uncomfortable. But I now regret that I did not more openly challenge those who were determined to invade a country whose actions were peripheral to the real threat--al-Qaeda. I retired from the military four months before the invasion, in part because of my opposition to those who had used 9/11's tragedy to hijack our security policy.”

Who were these “zealots” who “hijacked” America’s security policy and diverted essential assets in the war against terror to the ill-fated Iraq expedition? Their origins came from a disappointment with the first President Bush’s 1991 refusal to topple Saddam Hussein and their dismay over a “peace dividend” which caused a reduction in the huge Pentagon budget. As sensible as President Bush’s decision now appears after his predictions- and worst fears- have been fulfilled by his son, numerous former members of his administration and other “neoconservatives” disagreed. Determined to rectify what they thought of as a mistake, they created a group called the “Project for a New American Century,” (PNAC) in 1997.

On January 26, 1998, eighteen members of the “Project for a New American Century” (PNAC) wrote to President William J. Clinton to ask him to:

“... turn your Administration's attention to implementing a strategy for removing Saddam's regime from power. This will require a full complement of diplomatic, political and military efforts. Although we are fully aware of the dangers and difficulties in implementing this policy, we believe the dangers of failing to do so are far greater. We believe the U.S. has the authority under existing UN resolutions to take the necessary steps, including military steps, to protect our vital interests in the Gulf....”

Signers of the letter included future George W. Bush policy makers who were instrumental in laying the groundwork for the 2003 invasion, most notably Elliott Abrams, Richard L. Armitage, (now U.N. Ambassador) John Bolton, (now U.S. ambassador to Iraq) Zalmay Khalilzad, Richard Perle, Paul Wolfowitz, and Secretary of Defense Donald Rumsfeld. Other PNAC members included Vice President Dick Cheney and Lockheed-Martin Vice President Bruce P. Jackson, who in 2002 temporarily left Lockheed to head up the “Coalition for the Liberation of Iraq,” an organization dedicated to create the environment to support a pre-emptive invasion of Iraq.

In 2000 the PNAC listed among its goals: “Reposition permanently based forces to Southern Europe, Southeast Asia and the Middle East...”

When George W. Bush took office in 2001, this group of influential outsiders were suddenly the most powerful men in the country. And they were determined to use the United States military to achieve their goals. Diplomacy was never a consideration for them because the demonstration of American military might was a primary part of their plan. As William Rivers Pitt, author of War on Iraq, wrote in February of 2003:

“When Bush assumed the Presidency, the men who created and nurtured the imperial dreams of PNAC became the men who run the Pentagon, the Defense Department and the White House. When the Towers came down, these men saw, at long last, their chance to turn their White Papers into substantive policy.”

Within hours after the 9-11 attacks occurred, PNAC member and Defense Secretary Donald Rumsfeld immediately responded by suggesting an invasion of Iraq- not because it was connected to Al Qaida or the attacks on the Pentagon and World Trade Center towers, but because Iraq was an easy target- it was “doable.” A Freedom of Information Act release revealed that on September 11, 2001, Rumsfeld instructed the military to, in the notes of one of Rumsfeld's aides,

"Judge whether good enough hit S.H. (Saddam Hussein) @ same time — not only UBL (Osama bin Laden) … Hard to get a good case …. Sweep it all up. Things related and not.”

The invasion of Iraq would be the PNAC’s crown jewel- a demonstration of America’s military might to the world-- a vicarious thrill for PNAC members who had never heard a shot fired in anger and who had no family members who would be serving on the front lines. There was a glitch, however: the CIA kept reporting back that there were no links between Iraq and Al Qaida and no evidence of an ongoing Iraqi program to develop and deploy weapons of mass destruction (WMD’s). Rumsfeld and Vice President Cheney “solved” this problem by creating a separate intelligence unit in the Pentagon, whose sole purpose was to lay the groundwork for an Iraq invasion by fixing the intelligence. As New Yorker investigative reporter Seymour Hersh reported on May 5, 2003, a professional intelligence agent who left the unit revealed:

“One of the reasons I left was my sense that they were using the intelligence from the C.I.A. and other agencies only when it fit their agenda. They didn’t like the intelligence they were getting, and so they brought in people to write the stuff. They were so crazed and so far out and so difficult to reason with—to the point of being bizarre. Dogmatic, as if they were on a mission from God.” He added, ‘If it doesn’t fit their theory, they don’t want to accept it.’“

The 2002 “Downing Street Memo” confirmed that as early as the summer of 2002, the British were aware-- and concerned-- that members of the Bush Administration were so determined to go to war with Iraq that they were “fixing the intelligence.” Allegations of Iraq’s WMD’s by Vice President Cheney, (then) National Security Advisor Condaleeza Rice, and President Bush in 2002 were made to drum up a war fever. The 2003 invasion was the culmination of a long planned effort by a group of Americans who had never seen combat- most never served in the military- to take our military for a spin” and see how it performed. To complete the metaphor, if America’s military was an expensive sports sedan, the PNAC cabal was a callow 16 year old who decided to borrow it-- then ran it into a ditch.

Monday, May 08, 2006


left: a warm welcome home for an Iraq War veteran

In the early summer of 2002, Democrats controlled the United States Senate with a one vote majority. With a balky economy, Enron and WorldCom imploding from fraud and scams, Clinton surpluses turned into burgeoning Bush deficits, and Osama still running loose nine months after the 9-11-01 attacks and President Bush’s guarantee that he would get Bin Laden “dead or alive,” there was a very real chance the Republicans would lose the House and turn Bush into a lame duck only two years into his presidency. By November of 2002, the Republicans took back the Senate and bumped up their majority in the House. None of the economic news had improved and Osama was still uncaught and unrepentent. What happened? How did President Bush pull off a political miracle?

The answer has come to us from a multitude of sources: former Bush Secretary of Treasury Paul O’Neill; former Bush counter-terrorism head Richard Clarke; former NSA terrorism analyst and ex-Marine Rand Beers; and the 9-11 Commission report, to name a few. The answer is that in politics nothing rallies a nation around its leader and its government like an external threat and a buildup towards war. As the 2002 Downing Street memo revealed, British officials discovered that President Bush and his advisors were so determined to go to war in Iraq that they were fixing the intelligence to overstate- or in some cases, fabricate- evidence that Iraq was threatening to develop and deploy weapons of mass destruction. Not coincidentally, the war fever drummed up by the President, Vice President, and (then) National Security Advisor Condaleeza Rice, was sufficient to overcome all of the bad domestic news and rally Americans who were confused by the President’s constant conflation of Iraq and the 9-11 attacks in his speeches- a connection later refuted by all evidence made available to the 9-11 Commission.

Under the leadership of Presidents Reagan and George H. W. Bush, our country had acted in schizophrenic fashion towards Saddam Hussein, first aiding him in his efforts to wage war against Iran, then turning on him after the 1990 invasion of Kuwait that precipitated the first Gulf War. The famous photograph of Donald Rumsfeld shaking hands with Saddam on December 20, 1983, was taken when Rumsfeld was sent as special envoy from Republican President Reagan to solidify our tilt towards Iraq during its war with Iran. That aid occurred during the years when Saddam was guilty of the infamous war crimes for which he is now on trial and which have been cited by Republican neoconservatives as an after-the-fact justification for the 2003 invasion of Iraq when the “weapons of mass destruction” turned out to be a hoax.

But that wasn’t the first unnecessary war caused by a Bush Administration guilty of venality and incompetence. In 1990, President George Bush, and his Secretary of State, James Baker, engaged in one of the most misbegotten and expensive pieces of diplomacy in American history. On July 25, 1990, our ambassador to Iraq, April Glaspie, met with Saddam Hussein and relayed her instructions from her superiors:

"I have direct instructions from President Bush to improve our relations with Iraq. We have considerable sympathy for your quest for higher oil prices, the immediate cause of your confrontation with Kuwait. As you know, I lived here for years and admire your extraordinary efforts to rebuild your country....

We can see that you have deployed massive numbers of troops in the south. Normally that would be none of our business, but when this happens in the context of your threat s against Kuwait, then it would be reasonable for us to be concerned. For this reason, I have received an instruction to ask you, in the spirit of friendship - not confrontation - regarding your intentions: Why are your troops massed so very close to Kuwait's borders?....

We have no opinion on your Arab - Arab conflicts, such as your dispute with Kuwait. Secretary (of State James) Baker has directed me to emphasize the instruction, first given to Iraq in the 1960's, that the Kuwait issue is not associated with America.

(Saddam smiles)”

On August 2, 1990, Saddam, thinking that President Bush had given him a green light, sent his troops to invade and occupy Kuwait. Seven months later American forces, allied with the British and other Coalition members, ejected the Iraqi Army from Kuwait in “Operation Desert Storm.” Although the road to Baghdad was wide open and Saddam could easily have been removed from power, President Bush refused to do so. In a 1998 book President Bush co-authored with his former National Security Advisor, Brent Scowcroft, he explained his reasons for not permitting American commander Norman Schwarzkopf to lead the charge to Baghdad:

"Extending the ground war into an occupation of Iraq . . . would have incurred incalculable human and political costs. . . . We would have been forced to occupy Baghdad . . . [and] rule Iraq. . . . Under those circumstances there would have been no viable exit strategy . . . the U.S. could conceivably still be an occupying power in a bitterly hostile land."

This decision rankled a group of Republicans later labeled as the “new conservatives,” or “neocons” for short. From 1945 through 1989, the central focus of American foreign policy- and during the McCarthy era of the early 1950’s, much of American domestic policy- was the Cold War confrontation with the Soviet Union. With the crumbling of the Berlin Wall and the end of the Cold War in 1989, there were a lot of right wing armchair warriors who lost their raison d’etre, their reason for existing. More importantly to the saga of the 2003 invasion of Iraq, there were several huge defense contractors which saw their sources of funds drying up during the 1990’s as a result of President Bush’s cashing in of the “peace dividend” when America’s troops were demobilized after Operation Desert Storm. Some of them- most notably Lockheed-Martin, were active in promoting government policies which were likely to expand their domestic and foreign markets. And nothing helps a defense contractor’s business like an imminent foreign threat or, even better, a hot war.

Although neo-conservatives later blamed President Clinton for a perceived decline in American military strength and its intelligence gathering apparatus during the 1990’s, it was no secret that the first President Bush had instructed his top defense officials to start the reduction in America’s conventional forces after the collapse of the Soviet Union.

After President Clinton won his second term, the new conservatives cast about for a new enemy for America. Most of these “neocons” never served in the military, including Dick Cheney, who testified at his Defense Secretary confirmation hearings in 1989 that he had “other priorities” during the Vietnam War when he received five successive deferments and collected two driving under the influence convictions, one in Montana and one in Wyoming.

The trouble was, there really were no external threats to America during the 1990’s. The 1993 World Trade Center bombing by Islamic terrorists led by Kuwaiti Ramzi Yousef and funded by his uncle, Khalid Shaikh Mohammed, was largely written off as a freak incident, unique and unlikely to be repeated. With six killed and the structures intact, we treated it as a crime, not a declaration of war. Even if it had been war, there was no return address and no sovereign state to build up as the next Nazi Germany or Communist Russia.

But the neocons were nothing if not creative, so in 1997 they picked a new old enemy- Iraq. They weren’t deterred by the obvious facts that Saddam Hussein’s Iraq was a shadow of its former self, decimated by sanctions and surrounded by American troops in Kuwait and Turkey, with the northern and southern thirds restricted by no fly zones for Iraq’s military aircraft.

NEXT WEEK: the “Project for New American Century.”