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DEFECTORS AND THE MORAL
HAZARD PROBLEM
Robert Bejesky*
In the case of the decision to go to war with Iraq in 2003, indications of pluralist
democracy were robust with interest group advocacy and with defectors providing
sourcing for Iraq’s alleged weapon breaches. Defector claims flowed directly to the
media, the Executive Branch, and the American Intelligence Community. To assess the
rational choices of the Executive and defectors regarding the information flow, the
hypothesis asserted in this article is that defectors would likely provide knowingly
accurate data and information of uncertain validity to a potential attacking state when
the personal, professional, and altruistic interests of defectors (in the event of an
invasion) plus the probability that the target possesses illegal weapon programs
multiplied by the security benefit, exceed the probability that prohibited weapons are not
possessed multiplied by the anticipated cost imposed on defectors for furnishing untrue
accounts.
The Executive would likely construe individual defector accounts with credibility
when there is a higher aggregate likelihood that a target state has breached weapon
proscriptions and when defectors perceive that a potential cost will be sufficiently high to
overcome the moral hazard problem. With respect to majoritarian democracy norms, if
the Executive-agent objectively perceives that defectors will contribute accurate
information about weapons, the public-principal’s utility is heightened awareness of a
security threat and more informed assent, but if data are inaccurate, the public may
become less informed and be more likely to support a less rational policy with lower
utility. However, the facts suggest that in the case of the Iraq War, one might consider
relaxing assumptions of a non-cooperative interaction between the Bush Administration
and defectors and assume that both actors held the same policy goals of going to war
from the beginning or even that the Bush Administration used defectors for its own
predetermined policy choices.
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DEFECTORS AND THE MORAL HAZARD PROBLEM
2
INTRODUCTION
The CIA recently paid $5 million as a “benefits package” to an alleged Iranian
defector named Shahram Amiri to attain information about Iran’s nuclear program, but he
left the money in the U.S. and returned to Iran.1 In January 2013, an Iranian defector
stated that Iran was within one year of possessing a nuclear weapon and would not
hesitate to use the weapon against any perceived enemy. 2 Also in January 2013, another
alleged defected Iranian intelligence officer announced that there had been a massive
explosion at Iran’s Fordow nuclear site,3 but two days later the International Atomic
Energy Agency confirmed that there had been no such detonation.4 Foreign witness
accounts can be valuable if they accurately inform U.S. agencies and the international
community of progressing threats to peace and security and if they forewarn of
approaching humanitarian emergencies. Alternatively, as the catastrophe involving Iraq
demonstrates, unverifiable anecdotal accounts from individuals can circulate in the global
media, potentially configure public perceptions, and possibly impel foreign policy actions
that become considerably more controversial after the evidentiary foundation of the
executed foreign policy—or lack thereof—becomes clearer.
I.
* M.A. Political Science (Michigan), M.A. Applied Economics (Michigan), LL.M. International Law
(Georgetown). The author has taught international law courses for Cooley Law School and the Department
of Political Science at the University of Michigan, American Government and Constitutional Law courses
for Alma College, and business law courses at Central Michigan University and the University of Miami.
1
Matthew Cole, Iran Nuke Defector Left Behind $5 Million In CIA Cash, ABC NEWS (July 15, 2010),
http://abcnews.go.com/Blotter/shahram-amiri-iran-nuke-defector-left-millioncia/story?id=11171171#.UZE_Y0q9uSo; Philip Sherwell, CIA Suspects Iranian Nuclear Defector Who
Returned
to
Tehran
was
a
Double
Agent,
TELEGRAPH
(July
17,
2010),
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7896463/CIA-suspects-Iranian-nucleardefector-who-returned-to-Tehran-was-a-double-agent.html (stating that Amiri claimed he was kidnapped
by the CIA in Saudi Arabia and returned home without the $5 million and U.S. authorities speculated that
Amiri was a double agent).
2
Iranian Defector: Iran Would Use Nukes, UPI (Jan. 26, 2013), http://www.upi.com/Top_News/WorldNews/2013/01/26/Iranian-defector-Iran-would-use-nukes/UPI-42351359223068/.
3
Phoebe Greenwood, Myster Over ‘Explosion’ at Iran’s Fordow Nuclear Site, TELEGRAPH (Jan. 28, 2013),
http://www.telegraph.co.uk/news/worldnews/middleeast/iran/9831282/Mystery-over-explosion-at-IransFordow-nuclear-site.html.
4
IAEA
Says
No
Explosion
at
Iranian
Plan,
UPI
(Jan.
30,
2013),
http://www.upi.com/Top_News/Special/2013/01/30/IAEA-says-no-explosion-at-Iranian-plant/UPI22221359555441/.
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After the invasion of Iraq, extensive official investigations determined that Iraq
possessed no chemical or biological weapons arsenal or active nuclear program, which
meant that allegations Iraqi defectors provided to the U.S. Intelligence Community, the
media, and other U.S. government agencies were false.5 During its five-year investigation
of the pre-war intelligence estimates, the Senate Select Committee on Intelligence
(“SSCI”) devoted a 208-page report to the Iraqi National Congress (“INC”), a group of
defectors who alleged to the media and U.S. intelligence services that Iraq possessed
weapons of mass destruction (“WMDs”) and collaborated with al-Qaeda.6 SSCI
Conclusion 1 summarizes: “[f]alse information from the Iraqi National Congress (INC) ...
was used to support key Intelligence Community assessments on Iraq and was widely
distributed in intelligence products prior to the war.”7 On the floor of the Senate, SSCI
member Senator Dick Durbin remarked: “Some of the information [defectors provided]
... found its way into one of the most important documents our Government issues, the
National Intelligence Estimate on Iraq,” and into “statements made by our former
Secretary of State Colin Powell before the United Nations to try to justify to the world
our invasion.”8 Conclusion 2 of the SSCI report reads: “[the INC] attempted to influence
United States policy on Iraq by providing false information through defectors directed at
convincing the United States that Iraq possessed weapons of mass destruction and had
links to terrorists.”9 Professor Jules Lobel explained that the war in Iraq was “initiated
based not on reliable, tested, objective evidence, but rather on intelligence information,
suspicions, surmises, or statements from defectors.”10
Writing of Ahmed Chalabi, the leading defector and head of the INC, former
Ambassador Peter Galbraith stated that Chalabi’s information was an essential impetus to
5
Robert Bejesky, Intelligence Information and Judicial Evidentiary Standards, 44 CREIGHTON L. REV. 811,
817-19, 858-59, 875-77 (2011) [hereinafter Bejesky, Intelligence Information].
6
See generally SENATE SELECT COMMITTEE ON INTELLIGENCE, THE USE BY THE INTELLIGENCE
COMMUNITY OF INFORMATION PROVIDED BY THE IRAQI NATIONAL CONGRESS, S. REP. 109-330 (2006),
http://intelligence.senate.gov/ phaseiiinc.pdf.
7
Id. at 113.
8
152 CONG. REC. S9600 (Sept. 14, 2006). Available at https://www.congress.gov/congressionalrecord/2006/09/14/senate-section/article/S9582-2.
9
S. REP. 109-330, at 113 (2006).
10
Jules Lobel, Preventive Detention and Preventive Warfare: U.S. National Security Policies Obama
Should Abandon, 3 J. NAT’L SECURITY L. & POL’Y 341, 343 (2009).
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DEFECTORS AND THE MORAL HAZARD PROBLEM
4
the invasion and occupation of Iraq: “He certainly spun his information and analysis in a
manner maximally favorable to the case for war. On some matters, he may have lied.”11
When Chalabi was criticized, he stated that “[w]e didn’t mislead anyone,”12 and that “The
New York Times reporters ... contact[ed] us continuously, asking to meet people who
know all these programs ... [I]t’s not up to us to evaluate the stories of these people.”13
On another occasion, Chalabi remarked: “We are heroes in error... As far as we’re
concerned we’ve been entirely successful. That tyrant Saddam is gone and the Americans
are in Baghdad. What was said before is not important. The Bush administration is
looking for a scapegoat. We’re ready to fall on our swords if [President Bush] wants.”14 It
is doubtful that Bush would have summoned Chalabi and his comrades to plunge on
figurative “swords,” but segments of the American public might have been receptive to
the invitation given the more profound effects on democratic governance caused by
reverberations from these events, beyond the high-profile, triangular exhibition of
accusation deflection that transpired among the Bush Administration, Chalabi, and the
American intelligence community.
On March 19, 2013, which was the ten-year anniversary of the start of the Iraq
War, CBS Nightly News explained that the Iraq War resulted in 4,488 U.S. military
deaths, 134,000 Iraqi civilian deaths, and a $2.2 trillion dollar cost to American
taxpayers.15 On April 9, 2013, ten years after Saddam Hussein’s mammoth statue was
toppled, CBS News reported on polls that revealed a majority of Americans regretted the
decision to go to war and telecasted interviews with opposing views on the ramifications
11
PETER W. GALBRAITH, THE END OF IRAQ: HOW AMERICAN INCOMPETENCE CREATED A WAR WITHOUT
END 86 (2006).
12
Jane Mayer, The Manipulator: Ahmad Chalabi Pushed a Tainted Case For War. Can He Survive the
Occupation?,
NEW
YORKER
(May
29,
2004),
http://newyorker.com/archive/2004/06/07/040607fa_fact1?currentPage=all (further stating that “the entire
world’s intelligence” failed).
13
Chalabi, Ahmed. Interview with Steve Inskeep & Renee Montagne, Iraq’s Chalabi Says He Did Not
Mislead U.S., NPR (Nov. 11, 2005), http://www.npr.org/templates/story/story.php?storyId=5008689.
[hereinafter Iraq’s Chalabi Says He did Not Mislead U.S.]
14
Jack Fairweather & Anton La Guardia, Chalabi Stands By Faulty Intelligence that Toppled Saddam’s
Regime,
TELEGRAPH,
(Feb.
19,
2004),
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/1454831/Chalabi-stands-by-faultyintelligence-that-toppled-Saddams-regime.html.
15
CBS Evening News (Mar. 19, 2013) (news clip on file with author).
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of the war for the Iraqi people.16 The regret reflected Americans’ updated opinions about
the Iraq War from much earlier and the substantial advocacy for withdrawal before
2006.17
The vast majority of the international community, deluded as to the underlying
reasons for war, condemned the attack.18 The war was not approved by the United
Nations Security Council, making the attack illegal under international law.19 Twentytwo Arab League ministers passed a unanimous resolution deeming the invasion “a
violation of the United Nations Charter” and a “threat to world peace.”20 In 33 out of 41
countries, 10 percent or less of populations supported “unilateral military action against
Iraq” and populations in the other countries included, except for the U.S., registered poll
results at or below 20 percent.21 Regularly conducted polls from 2003 to 2009 confirmed
that between 75 percent and 90 percent of Iraqis opposed continued occupation.22 In
2007, ABC News surveyed members of Congress who had voted for the October 2002
Authorization For the Use of Military Force Against Iraq and discovered that a
substantial percentage would have reversed their voting positions in hindsight had they
been more accurately informed about the nonexistence of the alleged threat, such that the
authorization would have been rejected.23 Democrats garnered control of both houses of
Congress for the first time in twelve years following the November 2006 elections, a shift
16
CBS Evening News (Apr. 9, 2013) (news clip on file with author).
Robert Bejesky, Political Penumbras of Taxes and War Powers for the 2012 Election, 14 LOY. J. PUB.
INT. L. 1, 34-36, 46-53 (2012) [hereinafter Bejesky, Political Penumbras].
18
See generally Robert Bejesky, Weapon Inspections Lessons Learned: Evidentiary Presumptions and
Burdens of Proof, 38 SYRACUSE J. INT’L L. & COM. 295, 342-50 (2011) [hereinafter Bejesky, Weapon
Inspections].
19
U.N. SCOR, 58th Sess., 4726 mtg. at 7, 16-17, U.N. DOC. S/PV.4726 (Mar. 26, 2003) (statement of
Malaysian and Libyan delegations); Bejesky, Weapon Inspections, supra note 18 (noting that there was
opposition throughout the world and states called the war illegal); Ian Soloman, Letter of European Law
Professors:
War
Would
Be
Illegal,
GUARDIAN
(Mar.
7,
2003),
http://www.guardian.co.uk/politics/2003/mar/07/highereducation.iraq.
20
Arab
States
Line
Up
Behind
Iraq,
BBC
NEWS
(Mar.
25,
2003),
http://news.bbc.co.uk/2/hi/middle_east/2882851.stm.
21
See generally Bejesky, Weapon Inspections, supra note 18, at 342.
22
Robert Bejesky, Politico-International Law, 57 LOY. L. REV. 29, 102-07 (2011) [hereinafter Bejesky,
Politico].
23
Bejesky, Intelligence Information, supra note 5, at 816–17.
17
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DEFECTORS AND THE MORAL HAZARD PROBLEM
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in control partially attributable to public dissatisfaction with the Iraq War.24 In 2009,
George Bush departed office with presidential approval ratings at 22 percent, the lowest
presidential approval rating since Gallup began measuring approval ratings more than 75
years ago, due in large part to the Iraq War and poor U.S. economic conditions. 25
Regrettable reverberations may still continue if commentators are correct in attributing
the recent sovereignty-threatening insurgencies by ISIS in Iraq,26 and the civil war in
neighboring Syria27 that has claimed the lives of over 200,000 Syrians, on chaos flowing
from the Bush Administration’s 2003 invasion of Iraq.
24
TOM LANSFORD, 9/11 AND THE WARS IN AFGHANISTAN AND IRAQ: A CHRONOLOGY AND REFERENCE
GUIDE 172-73 (2012).
25
Bush’s
Final
Approval
Rating:
22
Percent,
CBS
NEWS
(Jan.
16,
2009),
http://www.cbsnews.com/stories/2009/01/16/opinion/polls/main4728399_page2.shtml?tag+contentMain;co
ntentBody.
26
See Kenneth M. Pollack, The Fall and Rise and Fall of Iraq, 29 MIDDLE EAST MEMO 1 (SABAN at
Brookings)
(July
2013),
http://www.brookings.edu/~/media/research/files/papers/2013/07/30%20fall%20rise%20fall%20iraq%20po
llack/pollack_iraq.pdf (stating that with the Bush administration’s invasion of Iraq “[w]e caused the Iraqi
civil war, we healed in briefly, and then we left it to fester all over again”); see also PBS Newshour, What
Should the U.S. Do About the Islamic State?, PBS,(Aug. 25, 2014), http://www.pbs.org/newshour/bb/u-sislamic-state/ (quoting Professor Stephen Walt stating that terrorist threat allegations from ISIS are
“exaggerated,” ISIS is “predominantly a Sunni group which will not be able to expand into non-Sunni
areas,” ISIS is an issue for the region to alleviate, and the U.S. spent over a decade and provided military
assistance and tried to organize the politics of Iraq and the rest of the region and “failed miserably”); Peter
Bergen,
Bush’s
Toxic
Legacy
in
Iraq,
CNN
(June
16,
2014),
http://www.cnn.com/2014/06/13/opinion/bergen-iraq-isis-bush/; H.A. Goodman, ISIS Atrocities in Iraq
Represent the Catastrophic Failure of Bush Doctrine and Neoconservative Foreign Policy, HUFFINGTON
POST
(Aug.
8,
2014),
http://www.huffingtonpost.com/h-a-goodman/isis-atrocities-in-iraqr_b_5661346.html.
27
Fareed Zakaria, U.S. Fuel to the Middle East, WASH. POST (Jan. 16, 2014) (remarking that “Syrian
Sunnis were radicalized as they watched the Iraqi civil war”); Jordan Michael Smith, Neocons’ New Lie,
SALON (Apr. 25, 2012), http://www.salon.com/2012/04/25/neocons_new_lie/ (stating that the Iraq War
backfired as a freedom movement but instead unleashed anarchy and civil war in the region). The Iraqi
population is 20% Sunni and the Syrian population is 80% Sunni. Prior to the 2003 invasion, Hussein’s
Sunnis ruled over the 60% of the population that is Shia in Iraq and Assad’s Alawi clan, which is a Shiite
faction that is part of the 15% that comprise the Shiite population in Syria, and Assad rules over the
majority Sunni population. Perhaps it can be expected that with the post-Hussein Shia-controlled
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This article highlights the procedure and context under which Iraqi defectors
provided data to government officials and the media to emphasize how defector
information can be highly influential on government decision-making. This foundation
will serve as a means of examining the moral hazard problem that can unfold when a
democratic government does not just consider the accounts of such defectors but acts on
their information without effectual checks on the process. Part II addresses how interest
groups affect popular will and introduces a theoretical decision-making interaction in
government-defector relations. From this framework, the article emphasizes distinctions
between cooperative and non-cooperative contexts (as these methodologies are employed
in game theory), and accentuates that the facts relevant to Iraqi defectors and to the Bush
Administration formed a cooperative interaction, or a Pareto optimal sequence,28 making
the Executive’s concurrence with defector accounts both expected and predictable.
Depending on one’s interpretation, this result may stem from some combination of
Executive reliance on defector data or defector accounts being led by the Executive’s
preexisting preference to use force against Iraq, both of which are supplemented by an
accumulating intelligence foundation and American populace perceptions that accepted
the alleged dangers from Iraq.
DECISION ANALYSIS
A.
PREMISES
1. The Moral Hazard Problem
The term moral hazard has been defined as a “substantial hazard, one that would
influence the conduct of a reasonable person, as distinguished from a mere psychological
or ethical risk...such as to sustain a holding that the insured would suffer less by a
destruction of the property than would ordinarily be the case in the absence of its
II.
government in Iraq, which has been presumed to be a democracy, the Sunni population in Syria could
expect the same.
28
MICHAEL D. RESNIK, CHOICES: AN INTRODUCTION TO DECISION THEORY 151 (1987) (noting that Pareto
optimal refers to interaction between two actors with a resulting outcome in which at least one of the actors
receives a higher payoff, while the other’s outcome is no worse). In this context, the particular result from
the interactions might be expected, even though, the principal that bears the policy result is the American
public. Id.
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DEFECTORS AND THE MORAL HAZARD PROBLEM
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breach.”29 For example, in insurance contracts, the insured may behave more carelessly
than the uninsured or could even intentionally actuate events to produce a payout,30
undermining statistical probabilities embodied in actuarial tabulations that are applicable
to the general population.31 In a macroeconomic example of the moral hazard problem in
the case of government inadequately instilling perceptions of punishment cost on the
private sector, former Federal Reserve Chairman Alan Greenspan and other economists
explained that economic recovery can be strenuous if financial fraud is not prosecuted
and big banks continue to engage in risky behavior pursuant to the presumption that
government will bail them out whenever the institutions experience financial
difficulties.32
In international relations, moral hazard analyses have been applied to militants
who intentionally provoke a government to curtail, suppress, or adversely impact the
rights of its population so as to prod the international community to intervene militarily
against the oppressive regime.33 Similarly, a moral hazard predicament could also unfold
when self-interested defectors provide alleged evidence of wrongdoing by government
authorities in the country of defection and may be more apt to do so if the conditions are
29
LEE R. RUSS & THOMAS F. SEGALLA, COUCH ON INSURANCE § 81:98 (3d ed. 2005); Douglas E. Stevens
& Alex Thevaranjan, A Moral Solution to the Moral Hazard Problem 2-3 (SSRN Working Paper),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1138279 (noting that the moral hazard
problem involves the devotion to self-interest, failure to uphold honest conduct, or shirk on
responsibilities).
30
Dayna Bowen Matthew, The Moral Hazard Problem with Privatization of Public Enforcement: The Case
of Pharmaceutical Fraud, 40 MICH. J. L. REF. 281, 282 (2007); Richard A. Epstein, Products Liability as an
Insurance Market, 14 J. LEGAL STUD. 645, 653 (1985).
31
Charles G. Hallinan, The “Fresh Start” Policy in Consumer Bankruptcy: A Historical Inventory and an
Interpretive Theory, 21 U. RICH. L. REV. 49, 84 (1986) (expressing that there may be deviant behavior or a
selection bias with risk-seekers pursuing protection and risk-averse persons refraining from dangerous
activities and not seeking protection).
32
Bernanke: Fed Won’t Push Up Inflation Too High, DAILY HERALD (Nov. 6, 2010),
http://www.dailyherald.com/article/20101106/business/101109644/print/.
33
Alan J. Kuperman, Mitigating the Moral Hazard of Humanitarian Intervention: Lessons from Economics,
14 GLOBAL GOV. 219, 219 (2008). Controversy festers because unsanctioned individuals are not authorized
to be involved in insurgencies or to fight against armies even if humanitarian intervention should be lawful
under the proper circumstances. GEORGE P. FLETCHER & JENS DAVID OHLIN, DEFENDING HUMANITY:
WHEN FORCE IS JUSTIFIED AND WHY 129-34, 180-85 (Oxford: Oxford University Press 2008).
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such that the officials, agencies, or states to whom defectors provide the data are less
likely to conduct due diligence in assessing the validity of the information. This
possibility seems more probable if there is no perceived punishment cost for false
statements, if there is no viable screening system for the accuracy of defector accounts, or
if the receiving Executive finds the defector evidence conducive to its own preconceived
plans. The Executive may have no incentive to perform due diligence and every incentive
to endorse and amplify the defector information.
PLURALISM VERSUS MAJORITY RULE
The moral hazard problem in the case of defector-government relations may
subvert legitimate relations between the populace-principal and government-agent in a
democracy because defectors are a small and intensely passionate group of individuals
who may operate and advocate in a manner that is at odds with majoritarian choices of
the citizenry. Apprehensions about the defector-government relationship parallel
distinctions between the pluralist model of American democracy, which recognizes that a
struggle among interest groups can generate political outcomes,34 and majoritarian assent
principles found in the U.S. Constitution, 35 which assumes politicians should make
choices based on constituent will or by educating the populace with accurate information
when seeking to lead the country on policies that will yield a higher utility for the
populace than the status quo.36 American citizens elect political representatives, but
government interactions with interest groups and resource allocations to groups can
produce a public good with a positive or negative value for U.S. citizens. Policymaking
III.
34
SAMUEL HUNTINGTON, AMERICAN POLITICS: THE PROMISE OF DISHARMONY 7-8 (Cambridge: Harvard
University Press 1981) (noting that pluralist influences have grown since World War II).
35
Robert Bejesky, From Marginalizing Economic Discourse with Security Threats to Approbating
Corporate Lobbies and Campaign Contributions, 12 CONN. PUB. INT. L.J. 1, 38-46 (2012); M. Bennedsen &
S. Feldmann, Lobbying legislatures, 110 J. OF POL. ECON. (2002).
36
BARBARA LEAMING, JOHN F. KENNEDY: THE EDUCATION OF A STATESMAN 12, 217, 281, 356, 363-66,
423, 425, 428-29 (2007) (noting how President Kennedy’s views were similar to those of Winston
Churchill, which included using leadership to best serve public interest, and expressing how there can be
tension between statesmanship and electoral responsiveness). With privileged information and deeper
expertise within government bureaucracies of security concerns, this role of leadership may be more
important in the case of national security and war, but there also must be checks on the process to avoid
deceit and imprudent acts by the Executive.
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DEFECTORS AND THE MORAL HAZARD PROBLEM
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and value transfers could avail some groups and sectors of the population, allocate
taxpayer resources, and add transaction costs to the political system.
Collective action dynamics of interest groups exist in a broad range of activities,
such as in the organization of cartels, religious groups, socioeconomic interest advocates,
food riots, citizen participation in the army,37 civil rights proponents, environmental
protection advocacy, peace movements, and other public-spirited collective action.38
Courageous interest group advocacy and collective action helped to attain civil rights,
desegregation, and equality in the voting process through nonviolent advocacy during the
1950s and 1960s,39 with large groups of American political activists coordinating for a
common cause40 and accepting time, energy, and punishment costs,41 including the risk
of arrest and violent retaliation. In the private sector, full collective participation of
workers would be preferred in order to execute a successful wildcat strike,42 with workers
risking employer retaliation and lost wages during the strike period in order to pressure
management to offer better future treatment, while non-participating workers could be
shunned by coworkers for not accepting those risks.
PRO-WAR AND ANTI-WAR COLLECTIVE ACTION
Collective action has been used to influence policymaking involving war. For
example, with vigorous division over the Vietnam War during the 1960s,43 authorities
sought to punish certain speech and organizational activities, leading the Supreme Court
to decide cases in ways that accentuated the sincerity of the protester belief 44 and the
speech’s ramifications. In the case of the substantive speech (which might provoke more
IV.
37
GERALD MARWELL AND PAMELA OLIVER, THE CRITICAL MASS IN COLLECTIVE ACTION: A MICROSOCIAL THEORY 1-2 (1993).
38
DENNIS CHONG, COLLECTIVE ACTION AND THE CIVIL RIGHTS MOVEMENT 1 (1991).
39
Id. at 62-64, 78, 99, 101, 136.
40
Id. at 8, 17, 36.
41
MARWELL & OLIVER, supra note 37, at 14 (noting that research of large scale protest movements often
discuss whether members are likely to free-ride on the efforts of active members, in which case the
collective action could fail).
42
Id. at 90.
43
HUNTINGTON, supra note 34, at 174, 181-84.
44
Cohen v. California, 403 U.S. 15, 16, 18, 21-22 (1971) (making an initial inquiry to determine whether
Cohen’s jacket message was merely an infantile expression or a legitimately felt protest).
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vehement advocacy for, or opposition to, organizational activities), the Supreme Court
drew distinctions in the forms of advocacy by impassioned American protesters,
overruling convictions for the “silent, passive expression of opinion” of wearing
armbands45 and for wearing a flamboyant jacket,46 and upholding convictions for
incinerating draft cards.47 With respect to thwarting collective action, President Nixon
employed means to foil speech, advocacy, and organization before movements intensified
and grew, such as by arresting thousands of protesters in Washington, D.C. for
demonstrating against the Vietnam War and by directing the CIA to implement Operation
CHAOS to spy on Americans inside the U.S. based on Nixon’s contention that foreigners
were inciting the anti-war movement and ultimately security threats inside the U.S.48 In
contrast to these organizational and promotional endeavors by Americans involving war,
recent advocacy from small groups of profoundly interested foreign individuals have
endeavored to rouse American government and military action against a foreign
country,49 which may detract from majoritarian assent principles and lead to massive
costs in American lives and taxpayer dollars.
45
Tinker v. Des Moines Independent Community School District, 393 U.S 503, 508 (1969).
Supra Cohen, 403 U.S. at 15.
47
United States v. O’Brien, 391 U.S. 367, 367–86 (1968).
48
FREDERICK A.O. SCHWARTZ JR. & AZIZ Z. HUQ, UNCHECKED AND UNBALANCED: PRESIDENTIAL POWER
IN A T IME OF TERROR 35 (2007); Id. at 27-32 (discussing how the FBI’s COINTELPRO program was
initially implemented to counter the Communist Party in the U.S., but it became an operation that
sabotaged leftist groups and social movements inside the country); Discussion with Professor Monroe H.
Freedman of Hofstra University School of Law in June 2013 (Freedman, as head of litigation for the ACLU
on the cases, commented that 13,000 protesters and non-protesters were subject to sweep arrests (that were
sometimes violent) in 1971 during massive political protests against the Vietnam War and noted that
detainees were interned at RFK Stadium and held in deplorable conditions). Violent crackdowns on
protestors can lead to public sympathy for the movement, but it can also weaken the strength of a collective
action group because of the risks inherent to group participation. DENNIS CHONG, COLLECTIVE ACTION
AND THE CIVIL RIGHTS MOVEMENT 7, 22-25 (1991).
49
RUSSELL HARDIN, COLLECTIVE ACTION 38 (1982) (noting that Mancur Olson’s foremost premise on
group size is that “large groups will fail [and]. . . small groups will succeed” in collective action); Elizabeth
Rindskopf Parker, A National Security Agenda Revisited, 43 SUFFOLK U. L. REV. 829 848-49 (2010)
(stating that “[c]itizens in our diverse population may align themselves too closely with the particularly
national, ethnic or religious heritage operating overseas, and seek control over the direction of U.S. foreign
and national security as it may impact their former homelands” and giving the example of Iraqi defector
46
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Actions involving Iraq impart poignant examples of foreign collective action in
support of U.S. military force. Preceding the 1991 Gulf War, President George H.W.
Bush might have favored an early war against Iraq for invading Kuwait,50 but the
president had sliding approval ratings since his January 1989 inauguration and a majority
of Americans did not favor the use of force.51 On October 16, 1990, the Washington Post
ran a front page story that stated: “Poll Shows Plunge in Public Confidence: Bush’s
Rating Plummets.”52 In the same month, a fifteen-year-old Kuwaiti girl, who remained
anonymous for fear of retaliation, testified before a congressional committee: “I
volunteered at the al-Addan hospital [in Kuwait]...While I was there I saw the Iraqi
soldiers come into the hospital with guns. They took the babies out of incubators, took
the incubators, and left the children to die on the cold floor.”53 Another male eyewitness
corroborated the girl’s testimony: “I myself buried forty newborn babies that had been
taken from their incubators.”54 The Los Angeles Times reported that a woman only known
as “Cindy” from San Francisco and her companion “Rudi,” had recently fled Kuwait, and
the sources explained: “Iraqis are beating people...taking hospital equipment, babies out
of incubators. Life support systems are turned off.”55
President Bush Sr. delivered several speeches across the country to motivate the
American public to support the war against Iraq and used the emotive incubator baby
story as one justification for the 1991 Gulf War.56 President Bush went to Congress and
Ahmed Chalabi and the Iraq War, Cuban-Americans with Cuba, and the American Israel Public Affairs
Committee and Israel).
50
The President’s News Conference on the Persian Gulf Crisis, 27 WEEKLY COMP. PRES. DOC. 25 (Jan. 9,
1991) (Bush stating: “I don’t think I need [Congress’s assent]…I feel that I have the authority to fully
implement the United Nations resolutions.”).
51
See PETER IRONS, WAR POWERS 205 (2005).
52
Richard Morin & Paul Taylor, Poll Shows Plunge In Public Confidence; Bush’s Rating
Plummets, WASH. POST, Oct. 16, 1990.
53
Frontline, The Gulf War, Part A, Show #1407T, PBS (Jan. 9, 1996), transcript available at
http://www.pbs.org/wgbh/pages/frontline/gulf/script_a.html.
54
P.R. Firm Had No Reason to Question Kuwaiti’s Testimony, N.Y. TIMES (Jan. 17, 1992).
55
JOHN R. MACARTHUR, SECOND FRONT: CENSORSHIP AND PROPAGANDA IN THE 1991 GULF WAR 55 (2nd
ed., 2004).
56
NORMON SOLOMON, WAR MADE EASY: HOW PRESIDENTS AND PUNDITS KEEP SPINNING US TO DEATH, at
ch. 5 n. 28 (2010) (expressing that a commonly-repeated claim was that the President stated “they had kids
in incubators and they were thrown out of the incubators so that Kuwait could be systematically
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was narrowly granted an authorization for the use of the military. 57 It was later learned
that the Kuwaiti ruling monarchy constituted an interest group called “Citizens for Free
Kuwait” and hired a public relations (PR) firm to promote the incubator story and other
accounts to persuade the American public to support the war.58 After the 1991 Gulf War
and after the story’s credibility was questioned, the PR firm was placed on the
defensive59 and it was learned that the royal family pushed the story.60 The teenage
witness who testified before Congress was a member of the same Kuwaiti royal family61
that had governed Kuwait from the time the British severed the southern portion of Iraq
in 1899 and treated Kuwait City as a protectorate,62 and that same royal family continued
to govern in conjunction with parliamentary assemblies after democracy was
established.63
dismantled” and at six speeches he stated that “22 babies” were “thrown on the floor like firewood”);
Mitchell Cohen, How Bush Sr. Sold the Gulf War, COUNTERPUNCH (Dec. 28-30, 2002),
http://www.counterpunch.org/2002/12/28/how-bush-sr-sold-the-gulf-war/ (“Bush quoted Nayirah at every
opportunity.”); A Debate on One of the Most Frequently Cited Justifications for the 1991 Persian Gulf
War: Did the PR Firm Hill & Knowlton Invent the Story of Iraqi Soldiers Pulling Kuwaiti Babies From
Incubators?, DEMOCRACY NOW! (Dec. 2, 2003) [hereinafter A Debate on One].
57
See CHARLES TIEFER, THE SEMI-SOVEREIGN PRESIDENCY: THE BUSH ADMINISTRATION’S STRATEGY FOR
GOVERNING WITHOUT CONGRESS 129–36 (1994) (describing the close vote in the Senate of 53 to 47).
58
GREG GRANDIN, EMPIRE’S WORKSHOP: LATIN AMERICA, THE UNITED STATES, AND THE RISE OF THE NEW
IMPERIALISM 228 (2006); MACARTHUR, supra note 55, at 64, 70, 73; SHELTON RAMPTON & JOHN
STAUBER, WEAPONS OF MASS DECEPTION: THE USES OF PROPAGANDA IN BUSH’S WAR ON IRAQ 42, 71
(2003); See also supra note 56, A Debate on One.
59
A Debate on One, supra note 56 (reporting that the PR firm, Hill & Knowlton, contended the claims were
investigated); How PR Sold the War in the Persian Gulf, CENT. FOR MEDIA AND DEMOCRACY,
http://www.prwatch.org/books/tsigfy10.html.
60
Robert Charles Blitt, Who Will Watch the Watchdogs? Human Rights Nongovernmental Organizations
and the Case for Regulation, 10 BUFF. HUM. RTS. L. REV. 261, 350 (2004) (citing the importance of the
chronology of the incubator story and noting that even Amnesty International pushed the report in 1990,
but “this report was based on a story fabricated by an American PR firm, acting on behalf of the Kuwaiti
regime. . .).
61
RENA KIM BIVENS, THE ROAD TO WAR: MANUFACTURING PUBLIC OPINION IN SUPPORT OF U.S. FOREIGN
POLICY GOALS 103 (2004).
62
MICHAEL S. CASEY, THE HISTORY OF KUWAIT 47-50 (2007) (noting that the British entered into an
agreement with the ruling family).
63
Robert Bejesky, Geopolitics, Oil Law Reform, and Commodity Market Expectations, 63 OKLA. L. REV.
193, 205, 210 (2011) [hereinafter Bejesky, Geopolitics] (stating that there were also long durations when
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Even without PR firm advocacy and fervent accounts, it is still probable that the
1991 Gulf War would have occurred once support from the American public and
members of Congress built to a sufficient level to support Security Council resolutions
condemning Iraq’s invasion and occupation of Kuwait64 or to address the potential threat
to the six million barrels of oil produced in Saudi Arabia every day. 65 However, this
prospect does not alter the potentially adverse impact of the moral hazard problem on
American foreign policy: a collective group of individuals stood to suffer exceptional
losses, with interested individuals facing no apparent cost for offering highly evocative
and possibly inaccurate accounts to goad American support for war. Agents across the
information chain faced no apparent cost. The sources, PR firms, the media, and the Bush
Sr. Administration frequently repeated the accounts to urge the American public and
Congress to action.
In the lead up to the 2003 Iraq War, domestically-constituted interest groups
reportedly favored war with Iraq, including the Israeli lobby66 and the Project for a New
American Century (PNAC). PNAC was formed in 1997 and was at the forefront of
impelling political action to remove Hussein from power from 1998 to 2000, and
President George W. Bush appointed several PNAC members to top positions after
taking office, including Richard Armitage and John Bolton in the State Department,
Donald Rumsfeld, Paul Wolfowitz, and Douglas Feith in the Pentagon, and Richard Perle
as Chairman of the Defense Policy Board.67 However, these individuals and groups did
not declare that they possessed personal and direct knowledge of weapon systems as
unsatisfactory parliamentarian assemblies were dismissed and that a significant percentage of expatriates
without citizenship run much of the country’s daily affairs).
64
U.N. Security Council resolutions condemned Iraq’s attack. S.C. Res. 660, U.N. Doc. S/RES/660 (Aug.
2, 1990); S.C. Res. 661, U.N. Doc. S/RES/661 (Aug. 6, 1990).
65
ØYSTEIN NORENG, CRUDE POWER: POLITICS AND THE OIL MARKET 52 (2006) (“Essentially the United
States fought the Gulf War in 1990-91 over oil” and the “immediate need to safeguard Saudi oil reserves
and supplies”).
66
JOHN J. MEARSHEIMER & STEPHEN M. WALT, THE ISRAEL LOBBY AND U.S. FOREIGN POLICY 229-62
(2008).
67
Bejesky, Politico, supra note 22, at 39-41, 75.
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witnesses inside Iraq did,68 but instead accepted personal accounts of Iraqi defectors,
predetermined beliefs about Saddam Hussein’s regime, and additional intelligence
information to staunchly advocate for the use of force.
The remainder of this article will examine how the actions of defectors were an
instrumental variable that led to the 2003 invasion of Iraq and how the Administration’s
response to these actions compromised the right of the American populace to be
competently informed on foreign policy and questions involving war. Part B addresses
the intricate and decade-long relations between Iraqi defectors and the US government,69
and these pre-existing relations are utilized in Part C as one variable to assess what would
have been reasonable U.S. government perceptions of defector allegations in the period
preceding the 2003 invasion of Iraq. After considering the possibility of U.S. government
reliance on defector accounts, cooperative assumptions between the Administration and
defectors are introduced, opening the possibility that the Administration was using
defectors for its own predetermined policy intentions.
A.
PREEXISTING PERCEPTIONS: THE CIA AND THE INC
Shortly after the 1991 Gulf War, President George Bush Sr. issued a presidential
finding for a Central Intelligence Agency (“CIA”) covert action to influence groups
inside Iraq, including the Iraqi military and government, and to influence groups outside
of Iraq, with the intention of removing Saddam Hussein from power.70 Pursuant to the
presidential finding, the CIA founded an Iraqi Opposition Group within its Directorate of
Operations,71 contacted the “very controversial” Ahmed Chalabi in 1991,72 began to
68
Authorization for Use of Military Force Against Iraq Resolution of 2002, H.R.J. Res. 114, 107th Cong. §
3 (2002). This information was some of the allegedly supportive underlying evidence for Congress’s
authorization to use force against Iraq.
69
Kianne Sedeq & Aram Roston, Sources: U.S. Cuts Off Iraqi Politician Chalabi, NBC NEWS (May 14,
2008), http://www.msnbc.msn.com/id/24620260/ns/world_news-mideast_n_africa/t/sources-us-cuts-iraqipolitician-chalabi/.
70
S. REP. 109-330, at 5 (2006) (further stating that “in the Spring of 1991, President George H.W. Bush
approved efforts aimed at influencing those in the Iraqi government and military to undertake action to
change the Iraqi leadership.”); RUSS HOYLE, GOING TO WAR: HOW MISINFORMATION, DISINFORMATION,
AND ARROGANCE LED AMERICA INTO IRAQ 169 (2008) (reporting that “Washington’s financial support for
Chalabi began with a covert finding signed in May 1991 by President George H.W. Bush that authorized
the CIA to earmark $100 million to undermine Saddam’s regime after the Gulf War.”).
71
Id.; Marcus Eyth, The CIA and Covert Operations: To Disclose or Not to Disclose–That is the Question,
17 BYU J. PUB. L. 45, 52 (2002).
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formulate undertakings with Chalabi during the following year,73 and effectively
constituted the Iraqi National Congress (“INC”).74 The INC was comprised of antiHussein organizations and several hundred affluent Iraqi defectors, was financed and
counseled by the CIA,75 and enjoyed having access to top U.S. government officials.76
From the perspective of the American polity and principles of pluralist
democracy, the INC, at this early stage, can be broadly termed a government funded
interest group, possessing an indirect or nonpublic motive of persuading American
72
S. REP. 109-330, at 7 (2006) (remark from the CIA Chief of the Iraq Operations Group).
Id. at 6; Kristen A. Stilt, Islamic Law and the Making and Remaking of the Iraqi Legal System, 36 GEO.
WASH. INT’L L. REV. 695, 703 (2004); Mayer, supra note 12.
74
S. REP. 109-330, at 3 (2006) (stating that the CIA “was the agency with primacy in handling the INC
following the 1991 Gulf War”); SCOTT RITTER, ENDGAME: SOLVING THE IRAQI CRISIS 132 (2002)
(expressing that the INC “combined anti-Saddam propaganda with active support for a political opposition
group,” that the CIA possessed $30 million to destabilize the regime, and that the “CIA chose the Iraqi
National Congress to serve as its front”); see also Noah Feldman & Roman Martinez, Constitutional
Politics and Text in the New Iraq: An Experiment in Islamic Democracy, 75 FORDHAM L. REV. 883, 889
(2006); Laura Miller, Our Man in Iraq: The Rise and Fall of Ahmed Chalabi, PR WATCH, 2004,
http://www.prwatch.org/prwissues/2004Q2/chalabi.html (stating that the CIA created the INC).
75
JAMES DEFRONZO, THE IRAQ WAR: ORIGINS AND CONSEQUENCES 140 (2010) (remarking that “[w]ith
CIA aid, Chalabi established bases for his Iraqi National Congress (INC) army in Iraqi Kurdistan”);
MELISSA MAHLE, DENIAL AND DECEPTION: AN INSIDER’S VIEW OF THE CIA 215 (2005) (stating that the
INC faced infighting, competing political agendas, and periodic paralysis that required CIA assistance);
JAMES BAMFORD, A PRETEXT FOR WAR 296-97 (2004) (quoting Thomas Twetten, the CIA’s former deputy
director of operations, expressing that “[t]he INC was clueless. They needed a lot of help and didn’t know
where to start.”); RAMPTON & STAUBER, supra note 58, at 45 (stating that General Anthony, President
Clinton’s U.S. Central Command (“USCENTCOM”) head, called the INC a “Bay of Goats” operation
initiated by “some silk-suited, Rolex-wearing guys in London.”); KENNETH POLLACK, THE THREATENING
STORM: WHAT EVERY AMERICAN NEEDS TO KNOW BEFORE AN INVASION 63 (2002) (reporting that the INC
“moved into northern Iraq in October 1992 with CIA funds, equipment, and assistance”).
76
CHRISTOPHER J. COYNE, AFTER WAR: THE POLITICAL ECONOMY OF EXPORTING DEMOCRACY 95 (2008)
(remarking that during the 1990s, “Chalabi…maintained key political ties with the United States, in
particular with the Bush administration” and opining that the monetary aid from the US government
indicates Chalabi’s “influence in U.S. political circles”); Mayer, supra note 12 (emphasizing that Robert
Baer, a former CIA officer, expressed that “[Chalabi] was like the American Ambassador to Iraq” during
the 1990s; Chalabi had access to “the White House and the C.I.A.” and could “move around Iraq with five
or six Land Cruisers.”); Miller, supra note 74 (reporting that Chalabi cultivated relations with Washington
Republicans).
73
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government institutions and target audiences about Iraq and pushing for political action.
The INC’s impetus may have been due to its own self-interest—inherent in the name
“Iraqi National Congress” as an organization that could be a viable replacement for the
present Iraqi government77—or due to the motive of implementing the proposals of the
CIA’s Directorate of Operations, its financier. The danger with the INC’s informational
campaign (and its compatriot Rendon Group—a public relations firm that was also
funded by the U.S. government to facilitate anti-Hussein news operations)78— is that the
U.S. government is prohibited from funding groups and organizations that would
disseminate information domestically that could be construed as propaganda.79
Today these restrictions on domestic propaganda are largely moot due to the
ability to release an intentionally persuasive, but factually questionable, article on the
Internet and have it circulate throughout the world without regard to sovereign
jurisdictions. While this is precisely what the Bush administration and public relations
firms consistently did to support policies prior to the 2003 invasion and later occupation
KENNETH KATZMAN, CRS REPORT FOR CONGRESS, IRAQ’S OPPOSITION MOVEMENTS, (June 27, 2000),
available at http://www.au.af.mil/au/awc/awcgate/crs/98-179.pdf (remarking that the INC “served as a
vehicle for U.S. support” and it “appeared viable” but it would likely have exhibited an “authoritarian
internal structure” if it was endowed with political power in Iraq); COYNE, supra note 76, at 95 (stating that
“it seems evident that Chalabi was motivated by the desire to see the United States overthrow the Hussein
regime so that he could control the government of the new Iraq”); ANTHONY H. CORDESMAN, THE IRAQ
WAR: STRATEGY, TACTICS, AND MILITARY LESSONS 499 (2003) (explaining that neoconservatives
apparently believed that the INC was the “equivalent of a government in exile”).
78
JUSTIN LEWIS, ROD BROOKES, NICK MOSDELL & TERRY THREADGOLD, SHOOT FIRST AND ASK
QUESTIONS LATER: MEDIA COVERAGE OF THE 2003 IRAQ WAR 27 (2006) (noting that the Rendon Group
assisted in organizing the INC in 1992, that the CIA employed Rendon, and Rendon handled PR aspects of
anti-Hussein operations).
79
TIMOTHY ZICK, THE COSMOPOLITAN FIRST AMENDMENT: PROTECTING TRANSBORDER EXPRESSIVE AND
RELIGIOUS LIBERTIES 280 (2014) (remarking that “Smith-Mundt restriction barred citizens from learning
what their own government was saying to foreign audiences,” but also highlighting that the “recent partial
repeal of the domestic dissemination ban, which allows Americans to obtain and listen to at least some
foreign propaganda distributed by the federal government”); Mayer, supra note 12 (remarking that “[t]he
C.I.A. had been forced to abolish domestic operations after a series of scandals in the nineteen-seventies,”
but it “outsourced the Iraq project to the Rendon Group”). The aforementioned PR projects involving the
Citizens for a Free Kuwait had recently been involved with similar operations. See supra Part II(A)(3).
77
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of Iraq,80 at the time the post-Gulf War operations between the CIA and INC commenced
in 1992, Cold War-era legislation made it illegal for U.S. government messages directed
at foreign populations to be transmitted to the domestic audience.81 Under the SmithMundt Act of 1948, the U.S. government could legally provide biased newscasts or even
misrepresentations to foreign audiences,82 but could not broadcast the same substance
inside the U.S. due to the hazard of tarnishing principles of diversity and competing
80
GRANDIN, supra note 58, at 229 (noting that PR firms operated in conjunction with the White House to
urge for invasion); TODD C. HELMUS, CHRISOPHER PAUL & RUSSEL W. GLENN, RAND CORPORATION,
ENLISTING MADISON AVENUE: THE MARKETING APPROACH TO EARNING POPULAR SUPPORT IN THEATERS
OF OPERATION 21 (2007) (stating that it is impossible to prevent the spread of information to the domestic
audience, particularly military psychological (PSYOP) messages, which would ordinarily be prohibited
from reaching the domestic audience by the Smith-Mundt Act); Jeff Gerth, Military’s Information War Is
Vast
and
Often
Secretive,
N.Y.
TIMES
(Dec.
11,
2005),
http://www.nytimes.com/2005/12/11/politics/11propaganda.html?pagewanted=print&_r=0 (emphasizing
the significant expenditures to Rendon and Lincoln via contracts with the Bush Administration and
Pentagon).
81
22 U.S.C. § 1461(a)(2008); ZICK, supra note 79, at 280; ALAN L. HEIL JR., VOICE OF AMERICA: A
HISTORY 48 (2003) (stating that the law made clear that Voice of America and no product of other
government agencies could be disseminated inside the U.S. and remarking that “[t]he prohibition against
dissemination of U.S. government-produced information has been challenged in court several times, but
with only limited success.”); Allen W. Palmer & Edward L. Carter, The Smith-Mundt Act’s Ban on
Domestic Propaganda: An Analysis of the Cold War Statute Limiting Access to Public Diplomacy, 11
COMM. L. & POL’Y 1, 1 (2006) (noting that the U.S. Code has authorized the U.S. government to
disseminate information about the U.S. to foreign countries for fifty years and that federal law has
prohibited those same “international propaganda messages from being disseminated within the United
States” for at least thirty years).
82
Nancy Snow, Introduction, in PROPAGANDA AND AMERICAN DEMOCRACY 1 (Nancy Snow ed., 2014)
(reporting that to “global citizens, the United States is a major purveyor of propaganda worldwide”);
LAURA A. BELMONTE, SELLING THE AMERICAN WAY: U.S. PROPAGANDA AND THE COLD WAR 32-33
(2008) (accentuating that the purpose underlying the Smith-Mundt bill was to counter Soviet propaganda
and this led to “Congressional support for American propaganda” in 1948 but the bill was specified as
intended “to promote a better understanding of the United States in other countries”); Shawn J. Parry-Giles,
Militarizing America’s Propaganda Program, 1945-55, in CRITICAL REFLECTIONS ON THE COLD WAR:
LINKING RHETORIC AND HISTORY 95-97 (Martin J. Medhurst & H.W. Brands, eds., 2000) (stating that the
forerunners to the Smith-Mundt act were the Office of War Information, which had a domestic branch and
operated during World War II; that editors and journalists provided propaganda during the early years of
the Cold War; and specifying that the Smith-Mundt Act’s legalization of foreign propaganda was a tool to
fight the Cold War with ideology).
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views inherent in American democracy.83
This alliance among Chalabi, the CIA, the Rendon Group, and the INC began
with the intention of placing the anti-Hussein press releases in the British news outlets.
The British press understood that the stories were not to be reproduced by the American
press because of U.S. legal restrictions on disseminating domestic propaganda.84
Ironically, it was the U.S. and U.K. that consistently exhibited the most intense interest in
Iraq; the U.S. and U.K. operated the unauthorized military no-fly zones across northern
Iraq during the 1990s, were the most avid supporters of attacking Iraq in 2003, and
provided faulty intelligence assessments in an attempt to justify the 2003 war.85
Moreover, akin to the CIA operations, British intelligence also instituted perceptionshaping operations in the media. During the 1990s, the British Defence Intelligence Staff
constituted Operation Rockingham to publicize Iraqi defector allegations that Hussein
maintained weapons of mass destruction and did not destroy prohibited weapons
programs (despite opposite conclusions from experts and the intelligence community),86
and the British MI6 implemented a propaganda operation called Operation Mass Appeal
in order to shape perceptions about the threat from Iraq.87
83
Gartner v. U.S. Info. Agency, 726 F. Supp. 1183, 1186 n.2 (S.D. Iowa 1989) (citation omitted)
(specifying that when amendments to the Act were being proffered, Senator Zorinsky explained that “the
American taxpayer certainly does not need or want his tax dollars used to support U.S. Government
propaganda directed at him or her.”).
84
AMY GOODMAN & DAVID GOODMAN, STATIC: GOVERNMENT LIARS, MEDIA CHEERLEADERS, AND THE
PEOPLE WHO FIGHT BACK 70 (2006).
85
Bejesky, Politico, supra note 22, at 80-83 (discussing no-fly zones, political unity between the British
and U.S., and partial reliance on British intelligence); Bejesky, Weapon Inspections, supra note 18, at 304,
312-13, 344-46 (citing U.S. and British unity at the U.N. and to build a “coalition” and Secretary of State
Powell’s reference to British intelligence); Bejesky, Intelligence Information, supra note 5, at 829, 833
(discussing the U.S. government reliance on the British intelligence dossier).
86
NEIL MACKAY, WAR ON TRUTH 97 (2006); Michael Meacher, The Very Secret Service, GUARDIAN (Nov.
20, 2003), http://www.theguardian.com/politics/2003/nov/21/davidkelly.media (remarking that Operation
Rockingham was a “clearing house for intelligence, but one with a predetermined political purpose” and
(according to former U.N. weapons inspector Scott Ritter) involved “exploitation of intelligence from Iraqi
defectors” and discarding of the “vast majority of the data which mitigated” the allegations).
87
NICOLAS J.S. DAVIES, BLOOD ON OUR HANDS 67 (2010) (reporting that Ritter “told a parliamentary
inquiry in Britain that he was recruited in 1997 to take part in MI6’s ‘Operation Mass Appeal,’” which was
designed to plant stories and unsubstantiated accounts in the media); SCOTT RITTER, IRAQ CONFIDENTIAL:
THE UNTOLD STORY OF AMERICA’S INTELLIGENCE CONSPIRACY 280 (2005) (remarking that the MI6’s
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From the perspective of majoritarian democracy principles, American taxpayers
funded the operations of Iraqi defectors and the Rendon Group in a series of progressive
stages. First, American taxpayers unwittingly funded CIA involvement in establishing the
INC and its affiliation with Rendon following President George H.W. Bush’s discreet
presidential finding, which entailed furtive financial assistance to the Rendon Group and
the INC during the early 1990s.88 The U.S. government operations executed in order to
sustain the INC and Rendon Group may have crafted public perceptions during the early
to mid-1990s. Second, with the lobbying of neoconservatives, Ahmed Chalabi, the
Rendon Group, and other allies,89 Congress unanimously passed the 1998 Iraqi
Liberation Act (“ILA”), signed by President Clinton during his entanglement in
impeachment proceedings, and the ILA made regime change in Iraq official U.S.
policy.90 Under the terms of the ILA, Congress openly awarded $97 million to opposition
groups, with most funding going to the INC.91
“Operation Mass Appeal served as a focal point for passing MI6 intelligence on Iraq to the media”); MI6
Ran
‘Dubious’
Iraq
Campaign,
BBC
NEWS
(Nov.
21,
2003),
http://news.bbc.co.uk/2/hi/uk_news/3227506.stm (stating that the British program was designed to
publicize “single source data of dubious quality”).
88
JOHN PRADOS, SAFE FOR DEMOCRACY: THE SECRET WARS OF THE CIA 599 (2006) (reporting that the
CIA was funding $326,000 per month to Rendon to organize, increase, and utilize the allegations of Iraqi
defectors for publication purposes); RAMPTON & STAUBER, supra note 58, at 43 (remarking that the 1998
ABC News report by Peter Jennings revealed that “the Rendon Group funneled $12 million in covert CIA
funding to the INC between 1992 and 1996); POLLACK, supra note 75, at 93 (stating that the CIA assisted
the INC with its operations in northern Iraq); Mayer, supra note 12 (specifying that Francis Brooke, a
Rendon official, was compensated with $22,000 per month and lobbied Congress and that Brooke
acknowledged the CIA funding for Rendon and mentioning that Rendon spent “forty million dollars a
year.”); See GRANDIN, supra note 58, at 228 (providing estimates of hundreds of millions of dollars over a
decade being paid to the organizations involved with laying the groundwork to overthrow Hussein).
89
MARIA RYAN, NEOCONSERVATISM AND THE NEW AMERICAN CENTURY 98 (2010) (noting the long-term
lobbying efforts by Chalabi and neoconservatives); Mayer, supra note 12 (reporting that neoconservatives,
Chalabi, and allies in Congress allied to pass the act, with Francis Brooke (of Rendon) remarking an
additional intention was to “hurt and embarrass” President Clinton).
90
Iraq Liberation Act of 1998, H.R. 4655, 105th Cong. § 3 (2d Sess. 1998) (specifying that it “should be
the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from
power in Iraq and to promote the emergence of a democratic government to replace that regime.”).
91
Robin Wright, U.S. Suspends Funds for Key Iraqi Rebels / Group Can’t Account for Millions in Aid,
S.F. CHRON. (Jan. 5, 2002), http://articles.sfgate.com/2002-01-05/news/17526153_1_iraqi-group-iraqi-
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At the time of the ILA’s passage, the CIA’s relationship with the INC had already
been severed and the U.S. Department of State entered into agreements with the INC in
March 2000 to publicize information on radio and television and in newspapers on Iraq’s
“war crimes and crimes against humanity.”92 The INC’s agreement with the State
Department did not specifically mention communications to the American public, but
funded the INC efforts to “implement a public information campaign to communicate
with Iraqis inside and outside of Iraq and also to promulgate its message to the
international community at large.”93 If publicity efforts rely on accurate accounts of
current or the past humanitarian plight of the Iraqi people or war crimes of the regime,
then the INC’s espoused “ultimate goal” of restoring “respect for human rights and
democracy” in Iraq and the ILA intent to facilitate regime change seemingly converged.94
Based on knowledge of this U.S. Government-INC relationship during the 1990s,
the next part of this article provides an analytic framework to deliberate how recipients of
defector accounts might reasonably have perceived defector interests prior to the 2003
invasion of Iraq. The context is that there were varying opinions about the INC’s value
and the veracity of its promotional activities within the U.S. government when the
organization began sourcing information on Iraqi weapon programs, which was a domain
that was not clearly part of contracts with the U.S. State Department but might instead
have been an activity that was accordant with expectations or merely unexpectedly
national-congress-iraqi-troops; TOM HAYDEN, ENDING THE WAR IN IRAQ 13 (2007) (estimating that $33
million went to the INC out of the $97 million allocated); KATZMAN, supra note 77 (stating that the INC
desired $100 million).
92
S. REP. 109-330, at 25 (2006) (further remarking that the CIA ended its association with Chalabi in
February 1997 and that the U.S. Department of State awarded the INC with nearly $33 million starting in
March 2000).
93
OFFICE OF INSPECTOR GEN., U.S. DEP’T ST. AND THE BROAD. BD. OF GOVERNORS, Rep. No. 01-FMA-R092, REVIEW OF AWARDS TO IRAQI NAT’L CONG. SUPPORT FOUND. 4 (2001),
https://web.archive.org/web/20140409040349/http://oig.state.gov/documents/organization/7508.pdf
[hereinafter OFFICE OF INSPECTOR GEN.] (stating that the INC should also seek additional income and
consummate relations with other international groups); ARAM ROSTON, THE MAN WHO PUSHED AMERICA
TO WAR: THE EXTRAORDINARY LIFE, ADVENTURES, AND OBSESSIONS OF AHMED CHALABI 166 (2008)
(remarking that a problem for the State Department was that the INC was not a real organization and was
not previously incorporated anywhere, but to receive State Department funds the INC created an American
subsidiary called the “Iraqi National Congress Support Foundation”).
94
OFFICE OF INSPECTOR GEN., supra note 93, at 2-3.
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transpired during its more veiled relationship with the CIA. The SSCI considered data
offered by the INC during the 1990s and remarked that “the INC provided a steady
stream of low-ranking walk-ins from various Iraqi army and Republican Guard units who
generally had interesting information,”95 but some U.S. government officials and agents
held an alternative perception, maintaining that it was known that the INC was
fabricating information.96 To structure the query of these two opposing perceptions,
consider the rational beliefs and decision-making interactions between the Executive and
defectors, and predict whether rational defectors may have been expected to provide
incriminating information about Iraq’s weapon programs, a game theory analysis is
employed in the next section. Part D applies this framework to an overview of the actual
accounts provided by defectors.
B.
DEFECTORS AND RECIPIENT PREFERENCES
Game theory has offered important insights into the law, the application of the
law, and strategic behavior of participants in numerous legal contexts, including in
situations involving antitrust, conflicts of law, torts, taxation, contracts, labor law, and
environmental regulation.97 The intention of using a methodology that incorporates
strategic interaction is to dissect the decision-making process of actors by assessing actor
preferences and respective knowledge to predict the rational choices of participants and
their future expectations in given scenarios.98 If actors have a reciprocal understanding of
95
S. REP. 109-330, at 30-31 (2006).
WILLIAM NESTER, HAUNTED VICTORY: THE AMERICAN CRUSADE TO DESTROY SADDAM AND IMPOSE
DEMOCRACY 45 (remarking that the “CIA had warned that these defectors had lied or exaggerated,” but the
DIA was “suckered” by defector data);
See infra notes 141-42 (quoting DIA prohibitions on INC press releases and stating that it was known that
INC data was frequently false, quoting comments by Senator Durbin regarding false allegations, and noting
that the CIA and State Department had long been skeptical of defector claims); See infra notes 154-55
(stating that Congress allocated funding to the INC but without being certain about the accuracy of
informational accounts, stating that CIA Director Tenet noted that there was a “breakdown in trust” with
Chalabi, and remarking that a CIA agent recognized that Chalabi had sometimes reported fabricated
information to the CIA during the 1990s).
97
DOUGLAS BAIRD, ROBERT H. GERTNER & RANDAL C. PICKER, GAME THEORY AND THE LAW, at xi-xii
(2002).
98
DREW FUDENBERG & JEAN TIROLE, GAME THEORY, at xvii (1991).
96
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the expectations and strategic behavior of opponents,99 they may assess the optimal
strategies and seek to maximize their own payoffs and benefits, which can beget
predictable outcomes100 and afford lessons for future analogous scenarios. In the case of a
war powers question that at least partially depends on relying on information from
defectors and to assess whether a government decides to use force and whether
constituents agree and register pressing interests, a game theory analysis can provide
insight into the expectations about the defector data provided to the government based on
an assessment of the preferences and likely strategic behavior of defectors and the
government.101
Defector-Executive interactions and the potential impact of the information flow
on American perceptions that led to the 2003 invasion of Iraq can be broadly categorized
in terms of defectors providing accounts about Iraqi weapons programs to three
recipients—the media, the Intelligence Community (IC), and policymakers in the
Executive Branch.102 The first communication passes to journalists, and editors and
media entities decide whether to publish the account. As recipients of INC information,
the U.S. media wants to keep the U.S. citizenry informed and attain breaking stories.103
99
BAIRD, GERTNER & PICKER, supra note 97, at xii, 1; MAILATH SAMUELSON, REPEATED GAMES AND
REPUTATIONS: LONG-RUN RELATIONSHIPS 105 (2006) (discussing the repeated strategy of the Nash
equilibrium).
100
JAMES MORROW, GAME THEORY FOR POLITICAL SCIENTISTS 77 (1994) (noting that for the analyst of the
decision-making process, actors may make strategic decisions that result in an equilibrium); SAMUELSON,
supra note 99, at 2.
101
The general prewar context for the analysis will predominately involve the INC and the Bush
Administration, but for purposes of generalizing the information flow, understanding the decision-making,
and using the context for future scenarios, the general term “Defector” and “Executive” or
“Administration” will be employed. In general, an Administration’s policy choice on the use of force may
be to prefer an invasion and seek congressional assent to alleviate perceived security peril and threats to the
public, but the foundation of the perception may be educed partially by embracing the credibility of
defector data. Bejesky, Intelligence Information, supra note 5, at 814-17, 875-82. On the other hand, if
there is no real security threat, an Administration would be less likely to favor the use of force because the
benefit to the populace of alleviating a threat is zero and the cost can be high due to taxpayer allocations
and lives lost and injured.
102
S. REP. 109-330, at 187 (2006); See infra Part II(D)(2).
103
Robert Bejesky, Press Clause Aspirations and the Iraq War, 48 WILLAMETTE L. REV. 343, 343-46, 350,
356-57 (2012) [hereinafter Bejesky, Press Clause].
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For information that passes from defectors to the IC, the IC presumably aspires to
compose accurate intelligence estimates, and this mission mandates screening defector
data before analysts provide finished product reports to the Executive Branch.104
However, the Administration also receives defector accounts directly and could publicize
defector information or receive IC reports that have screened defector data.
With respect to interpreting defector accounts, all three actors receiving defector
information should reasonably construe that defectors prefer regime change. “Defectors,”
by definition, “forsake...one nation for another” because of incompatibility with the
present regime.105 Iraqi defectors would undoubtedly yearn for replacement of the regime
that made them defect and could be driven by desires that might include altruistically
deflating a security threat for states potentially at risk, acquiring personal political or
financial advantages following regime change,106 and attaining satisfaction stemming
from the “liberation” of proximate or distant relatives, but there is also the national
security impact of information flows. With respect to the value of interest group data that
is sponsored and presented to the American public, if defectors provide accurate
information about weapons, the public utility is heightened awareness of a security threat,
but if data are inaccurate, the public may become less informed and be more likely to
support a less rational and lower utility policy.107
104
JEFFREY T. RICHELSON, THE U.S. INTELLIGENCE COMMUNITY 1-5, 374-77 (2012).
MERRIAM-WEBSTER’S 11TH COLLEGIATE DICTIONARY (2003).
106
ZAID AL-ALI, THE STRUGGLE FOR IRAQ’S FUTURE: HOW CORRUPTION, INCOMPETENCE AND
SECTARIANISM HAVE UNDERMINED DEMOCRACY 42 (2014) (stating that prior to Chalabi’s exodus from
Iraq in 1958, his family “had benefited from its close relationship to the monarchy to accumulate
impressive wealth” but that much of this wealth had to be abandoned). It is entirely possible that defectors
perceived that they might be able to reap economic dividends from Iraqi resources and global economic
relations with a new regime and an open economy. COYNE, supra note 76, at 95 (remarking of Chalabi’s
political aspirations as an Iraqi leader); Bejesky, Geopolitics, supra note 63, at 215-19 (noting that defectors
participated in the Future of Iraq Project, which developed proposals for markets, government institutions,
and oil industry reform); Robert Bejesky, Currency Cooperation and Sovereign Financial Obligations, 24
FLA. J. INT’L L. 91, 101-04 (2012) (discussing new business opportunities available to foreign and domestic
interests with an overthrow of the former regime and a market economy in Iraq).
107
Roberta Haar, Informal Governance in the United States: Capitol Hill Networks, in INTERNATIONAL
HANDBOOK ON INFORMATIONAL GOVERNANCE 126-28 (Thomas Christiansen & Christine Neuhold, eds.
2012) (remarking that policymakers do not always know if lobby groups are supplying trustworthy
information, that false information from an interest group can result in a loss of credibility, and that public
105
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If one assumes that defectors have a specific motive but possess information with
unknown validity, and that political actors seek to fulfill constituent desires, one cannot
automatically assume that government preferences accord with defector aspirations, an
outcome that parallels deviations between majoritarian and pluralist democracy models.
This possibility suggests that the defector-Administration relationship should initially be
construed as a non-cooperative interaction because both actors possess personal and not
necessarily equivalent interests and both desire optimal results that may not be uniform.
From this perspective of the Administration fully weighting its agency relationship and
obligation to American citizens, the Administration presumably wants to ensure that
legitimate information is disseminated to the public, recognizes that defectors are selfinterested, and comprehends a costly risk inherent in needing to publicly respond later if
defector data are inaccurate. Moreover, given that there is an IC screening mechanism
before classified data are analyzed and reach the Administration, which is different from
information that flows directly from defectors to the Executive Branch, this IC-defector
interaction can also be viewed as a non-cooperative interaction for some percentage of
allegations.108 The IC accepts defector data, presumably seeks to verify that data, and
draws estimates for the Administration, and the Administration might declassify claims,
interest can be negatively impacted by distortions in the process of pluralist policymaking); Blake D.
Morant, The Endemic Reality of Media Ethics and Self-Restraint, 19 NOTRE DAME J.L. ETHICS & PUB.
POL’Y 595, 605 (2005) (noting that citizens would assuredly not favor false information saturation instead
of truthful and newsworthy information).
108
The INC-IC relationship, if it maintains integrity, supports assumptions of a non-cooperative or a neutral
and objective interaction. The CIA’s Joint Task Force on Iraq (JTFI), the agency established in fall 2001 to
search for WMD data, was statutorily required to perform prudently and objectively and the Pentagon’s
DIA exhibited skepticism of defector allegations when it oversaw the INC. The DIA eventually became
aware that INC data “was of little or no value,” and often false. S. REP. 109-330, at 29-31 (2006); SENATE
SELECT COMMITTEE ON INTELLIGENCE, REPORT ON THE U.S. INTELLIGENCE COMMUNITY’S PREWAR
INTELLIGENCE ASSESSMENTS ON IRAQ, S. REP. NO. 108-301, at 259-62 (2004) (explaining that intelligence
sources were lacking after UN inspectors departed in 1998); Id. at 18 (information collectors viewed
“ambiguous evidence as conclusively indicative of a WMD program” and ignored contrary evidence). Cost
is ostensibly higher to the IC for accepting false data from defectors (in comparison to the Administration
or media) if its assessments are inaccurate and can be traced to defectors. The IC is supposed to wield
expertise in national security matters and loses credibility by being beguiled by defectors.
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use authorized leaks to apprise the public of the witness account, choose to maintain
secrecy, or discount that information altogether.109
To assess whether defector decisions to provide sources to the Administration are
predictable and whether actions signal to the Administration if information is likely
accurate or inaccurate, a non-cooperative interaction simulates the defectorAdministration relationship, and incorporates benefits and costs.110 Consider the
following defector decisions to provide information to the Administration, and the
government reaction:
Chart 1 – Defector Decision to Provide (Ai) and
Executive Choice to Accept (di) Defector Allegations
Robert Bejesky, National Security Information Flow: From Source to Reporter’s Privilege, 24 ST.
THOMAS L. REV. 399, 408-26 (2012) [hereinafter Bejesky, Flow].
110
A media analysis might assume that Administration sourcing would be similar if defectors were
included since both presented analogous information.
109
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The analysis begins with the defector choice to provide or sponsor accounts
(A1...A3) and at each node the Executive can choose to accept or reject the account based
on perceived validity (d1...d5). After the defector and Executive act, there is a payoff
outcome for choices depicted in the parentheses. The first value is the defector payoff and
the second value is the Administration payoff. At A1, the defector provides a source that
he or she personally knows is a true account. At A2, the defectors provide information
that is either known to be false or information that is not clearly known to be true. At A3,
the defector does not provide information (for whatever reason).
If the defector provides accurate sourcing and the Administration accepts the
information (d1), the payoff to both sides is the highest because both the INC and the
Administration ostensibly prefer an invasion, with the latter’s preference due to the
existence of a security threat, and neither the defector nor the Administration will suffer a
future credibility loss because the data are bona fide. If the defectors impart sourcing, but
the Administration discards it (d2 and d4), the likelihood of invasion decreases because
there are fewer public and private accounts suggesting that the targeted country poses a
threat to international peace and security.
The defector payoff is the lowest at d2 because riskless, accurate, and veritable
sources are rebuffed; the likelihood of securing the defector preference of regime change
is abated; and the defectors sacrifice time and effort by proffering the information and
could possibly suffer risks that could endanger those within the chain of custody of the
data. Alternatively, there is a minimal payoff at d4 because the risk of lost credibility
and/or penalization is curtailed because the Administration discarded false or uncertain
information and the account was not publicized. Defectors take a risk at d3 because
possibly inaccurate information was accepted, but a strong payoff exists because the
subsequent potential fallout from the data is offset by a higher probability of invasion and
ultimate outcome of regime change. At d5, no information was provided and there is no
payoff.
If the Administration accepts true information at d1, it reaps the largest utility, but
accepting questionable information at d3 provides a lower payoff because it could need to
address a public backlash for false information. If the Executive rejects true information
at d2 the payoff is negative because the Administration excluded honest data bolstering
that the adversary state posed a real security threat. In this case, a public official would
presumably be more prone to favor the use of force, as derived from constituent interest
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in assuring safety and from the semblance of heightened legal justification. At d4 there is
a slightly positive payoff for the Administration because it correctly chose to reject
questionable information.
C.
THEORIZING DEFECTOR ALLEGATIONS
1. An Equation
The specific context generalized in the foregoing analytic framework was
developed from the premise that the U.S. government and the INC had reciprocal
knowledge of the decade-long relationship and collaboration during the 1990s and that
this recognition should have impacted mutual perceptions in interactions during the
months prior to the 2003 Iraq War. The theorized structure assumed that defectors would
rationally decide whether to provide data to government authorities to urge, foster, or
otherwise influence a security threat about the country from which they defected based
on an assessment of utilities and the degree of assurance that the information is accurate.
This section provides an equation and inequality that further probes the payoffs in terms
of the choices.
With respect to the government-recipient interpretation of the INC sourcing, the
INC preference for invasion should have made informed government officials, the media,
the IC, and perhaps even ordinary citizens view defector data with degrees of suspicion.
With the INC’s preference, it seems highly fanciful that the INC would have intentionally
sponsored defectors who would provide reports that suggested there were no prohibited
weapons in Iraq, irrespective of whether an assumption is employed that negates the
possibility that the Executive did not have a preexisting inclination to or interest in
exaggerating the threat. The unknown is whether incriminating WMD charges from
sponsored witnesses are true or false. A utility function can represent the defector’s
decision: U(Ai) = Bn + PwTc – (1 – Pw)(Fo)
Assume the utility to the INC for furnishing a false account or an account that is
unknown to be true (U(Ai)) is comprised of Pw, the probability that WMDs are possessed;
Bn, the benefit to the INC if there is an invasion; Tc, the INC benefit if the U.S. populace
discerns a threat cost of not preemptively attacking when weapons exist; and F o, the cost
for furnishing untrue accounts that may later be validated as false. The utility function
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also assimilates the prospect of defectors offering inaccurate details in reports, but that
WMD programs still exist.111
Irrespective of the possibility of defectors randomly conjecturing correctly with
false details, if a government is reasonable in assuming that probity is possible from the
defector data, defectors believe that the government will rationally assess the veracity of
defector data, and Chart 1 utilities are incorporated, the INC will provide incriminating
data on WMD programs when it is known that defectors possess true information because
there is no cost to the INC at A1 since Pw is 1. Also, the INC would likely provide
information that is not known to be true based on a rational assessment of benefits and
costs when Bn + PwTC > (1-Pw)(Fo), which inherently pits the risk of offering false data
against the probable cost that will be imposed for being wrong. That cost could also be
higher depending on whether it appears that disseminations were made innocently,
negligently, or intentionally. From the following representative sample of defector
reports, made directly to the media and to the American intelligence apparatus, it would
appear that defectors were willing to contribute accounts when Pw was very low.
D.
DEFECTOR STATEMENTS TO THE MEDIA AND THE AMERICAN INTELLIGENCE
COMMUNITY
One week after Bush was inaugurated, an anonymous defecting Iraqi military
engineer contended that Iraq already possessed two nuclear weapons and that there were
dozens of facilities involved in the production, but also maintained that the program was
so secretive “that apart from the scientists, only four or five people know what is
happening.”112 Perhaps the implausibility of this allegation should have signaled what
was to ensue because UN inspectors affirmed in 1998 that there were no known active
111
Bn is unrelated to the accuracy of the INC account and P w is a perception at the time defectors provide
data.
112
Jessica Berry, Saddam Has Made Two Atomic Bombs, TELEGRAPH (Jan. 29, 2001),
http://www.telegraph.co.uk/news/worldnews/middleeast/iraq/1320004/Saddam-has-made-two-atomicbombs-says-Iraqi-defector.html (defector stating that “[t]here are at least two nuclear bombs which are
ready for use,” that there are between 47 to 64 factories involved in the uranium enrichment project, and
that the Special Security Organization or military restricts access but the “chain of command leads directly
to the presidential palace and Saddam’s closest aide, Abed Hmoud”); See also NICK RITCHIE & PAUL
ROGERS, THE POLITICAL ROAD TO WAR WITH IRAQ: BUSH, 9/11 AND THE DRIVE TO OVERTHROW SADDAM
61 (2007) (remarking that “[i]n November 2000 Iraqi defector Khidir Hamza, a nuclear weapons experts,
insisted that Iraq was only months away from making a nuclear bomb.”).
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facilities in Iraq, and it can require up to a decade to enrich the uranium necessary for a
nuclear bomb.113 Other news reports acknowledged that it was unknown whether Iraq
covertly initiated an active nuclear program, but in later months “interviews with recent
defectors” suggested that Iraq did have active uranium-enrichment facilities.114
It was later learned that just three days after 9/11, the INC had requested and was
denied $23 million from Congress for what was reported by the New York Times as
funding to “gather intelligence inside Iraq,” support “organization and propaganda,” and
“finance spying inside Iraq.”115 With or without congressional funding, defector
allegations flourished in the media shortly after 9/11. Anonymous and named Iraqi
defectors maintained that Saddam Hussein founded facilities to train operatives to hijack
a Boeing 707116 and other INC sources directly stated that Iraq was involved in 9/11
113
Dr. Mohamed El-Baradei, The Status of Nuclear Inspections on Iraq: 14 February 2003 Update,
INTERNATIONAL
ATOMIC
ENERGY
AGENCY
(Feb.
14,
2003),
http://www.iaea.org/NewsCenter/Statements/2003/ebsp2003n005.shtml (ElBaradei remarking: “As I have
reported on numerous occasions, the IAEA concluded, by December 1998, that it had neutralized Iraq’s
past nuclear programme and that, therefore, there were no unresolved disarmament issues left at that time. .
. We have found no evidence of ongoing prohibited nuclear or nuclear related activities in Iraq.”); see also
Bejesky, Weapon Inspections, supra note 18, at 301-03 (emphasizing that the inspection reports to the
Security Council during the 1990 period (and up until the Bush Administration contended that Iraq was
violating the weapons regime) indicated that there was no evidence of nuclear, chemical, or biological
materials that would confirm a breach); Bejesky, Intelligence Information, supra note 5, at 820
(summarizing the SSCI’s investigation of pre-war intelligence and post-invasion inspections and noting
that there was “’no evidence’ of an attempt to start a nuclear weapons program after 1991”). Despite the
existence of these official reports that indicated Iraq did not possess any nuclear weapons program, the
news account in January 2001 quoted a security expert who opined that the anonymous defector’s
information was “vital” and suggested that ”[t]he fact that General Ismail is involved can only mean that
the programme is complete.” Berry, supra note 112.
114
Josh Tyrangiel, What Saddam’s Got: Much of His Chemical and Biological Weaponry Remains
Unaccounted For, and He’s Working on Nukes, TIME (May 6, 2002), available at
http://edition.cnn.com/2002/ALLPOLITICS/05/06/time.got/.
115
Patrick E. Tyler, Iraqi Opposition Says U.S. Denied Money for Intelligence Effort, N.Y. TIMES (Nov. 10,
2001), http://www.nytimes.com/2001/11/10/world/iraqi-opposition-says-us-denied-money-for-intelligenceeffort.html (reporting that INC spokesman Zaab Sethna referenced the denial and stated: “I think they fear
that if they allow us to move inside Iraq, we are going to get them involved in a war...that is not our
intention.”).
116
150 CONG. REC. 13721 (June 23, 2004) (noting that an anonymous Iraqi defector with a cover name of
“Abu Mohammed” told the London Sunday Times that a training facility named Salman Pak served as a
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attacks on the U.S.117 Members of the Bush Administration made direct and indirect
contentions specifying that Hussein’s regime had connections to al-Qaeda and 9/11.118
With 65 percent of Americans believing that al-Qaeda and Iraq were “two closely
collaborating allies,” a commentator interpreted the poll conducted two months prior to
the invasion of Iraq and opined that whatever “support there is for a war against Iraq, it
owes much to the erroneous belief . . . that it was Saddam Hussein’s operatives who flew
the planes into the World Trade Center and Pentagon.”119
Defectors emerged to report that they possessed personal knowledge of secret alQaeda chemical and biological weapon training facilities in Iraq,120 that there were
compound to train hijackers); Seymour M. Hersh, Selective Intelligence, NEW YORKER (May 12, 2003),
http://www.newyorker.com/archive/2003/05/12/030512fa_fact?currentPage=all (reporting that Sabah
Khodada, a former Iraqi army captain, claimed Iraq was training terrorists to hijack planes); Chris Hedges,
Defectors Cite Iraqi Training For Terrorism, N.Y. TIMES (Nov. 8, 2001), at A1, available at
http://www.nytimes.com/2001/11/08/world/a-nation-challenged-the-school-defectors-cite-iraqi-trainingfor-terrorism.html?src=pm&pagewanted=print (reporting on two anonymous defectors maintaining that
terrorists trained “around the fuselage of the 707”).
117
Iraqi Opposition Says Baghdad Trained Militants, REUTERS (Nov. 12, 2001), available at
http://www.chron.com/news/article/Iraqi-opposition-says-Baghdad-trained-militants-2030791.php
(reporting that Sherif Ali bin Hussein, an INC leader, affirmed: “We have been gathering evidence that
Saddam is at least intimately involved, if not the instigator, of these [9/11] attacks.”); Chris Hedges &
Donald G. McNeil Jr., A Nation Challenged: Intelligence; New Clue Fails to Explain Iraq Role in Sept. 11
Attack, N.Y. TIMES (Dec. 16, 2001), http://www.nytimes.com/2001/12/16/world/nation-challengedintelligence-new-clue-fails-explain-iraq-role-sept-11-attack.html?pagewanted=1
(emphasizing
how
defectors continued to press for a connection between 9/11 hijacker Mohamed Atta and Iraq).
118
Robert Bejesky, Cognitive Foreign Policy: Linking Al Qaeda and Iraq, 56 HOW. L.J. 1, 5-6, 18-20, 2231 (2012).
119
Kane
Pryor,
A
National
State
of
Confusion,
SALON
(Feb.
3,
2003),
http://www.salon.com/2003/02/06/iraq_poll_2/.
120
150 CONG. REC. 13720 (June 23, 2004) (reprinting Gwynne Roberts, Militia Defector Claims Baghdad
Trained Al-Qaeda Fighters in Chemical Warfare, SUN. TIMES (London) (July 14, 2002) (describing the
account of a “former colonel in Saddam Hussein’s Fedayeen, one of Iraq’s most brutal militias” and his
claim that “he trained with fighters from Osama bin Laden’s Al-Qaeda terrorist network in secret camps
near Baghdad” for chemical and biological weapon attacks); Hedges, supra note 116 (reporting accounts of
anonymous defectors claiming that there was a secret biological weapon training facility at Salman Pak and
that the focus was on “espionage, assassination techniques and sabotage” against the West).
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numerous locations inside Iraq that produced chemical and biological weapons,121 and
that Iraq possessed stockpiles of biological weapons.122 In many cases, the INC did
sponsor defectors who emerged with accounts of prohibited weapon programs123 and the
New York Times even emphasized how the accounts of defectors substantiated each
other,124 but the INC was not clearly always the origin of the sourcing. Consider the
information provided by two critical defectors as a sample of the range and types of
121
Judith Miller, Iraqi Tells of Renovations at Sites For Chemical and Nuclear Arms, N.Y. TIMES (Dec. 20,
2001), at A1, http://www.nytimes.com/2001/12/20/world/nation-challenged-secret-sites-iraqi-tellsrenovations-sites-for-chemical.html?ref=richardbutler&pagewanted=all (reporting that “Mr. Saeed’s
account gives new clues about the types and possible locations of illegal laboratories, facilities and storage
sites that American officials and international inspectors have long suspected Iraq of trying to hide.”).
122
Douglas Jehl, Agency Alert About Iraq Not Heeded, Officials Say, N.Y. TIMES (Feb. 7, 2004),
http://www.nytimes.com/2004/02/07/politics/07INTE.html (stating that an “Iraqi military defector
identified as unreliable by the Defense Intelligence Agency provided some of the information that went into
United States intelligence estimates that Iraq had stockpiles of biological weapons at the time of the
American invasion last March, senior government officials said Friday.”); see also Hearings to Examine
Threats, Responses, and Regional Considerations Surrounding Iraq: Hearings Before the Committee on
Foreign
Relations
U.S.
Senate,
107th
Cong.
15-24
(2002),
available
at
http://www.gpo.gov/fdsys/pkg/CHRG-107shrg81697/pdf/CHRG-107shrg81697.pdf (reporting that Dr.
Khidir Hamza, who defected from Iraqi in 1994, provided assertions about a range of Iraqi weapon stocks
for the Senate Foreign Relations Committee hearings on August 1, 2002, with some of the claims
maintaining that Hussein is engaged in “CW production and may well be in the process of BW
production,” that Iraq had “more than one ton of slightly enriched uranium” and ten tons of raw uranium,
and that Iraq is importing equipment for missile and chemical weapon programs). Dr. Khidir Hamza was a
well-placed witness but his testimony came eight years after he defected from Iraq and accounts in August
2002 were filled with much speculation about the present. Id.
123
Interview
with
An
Iraqi
Lt.
General,
PBS
(Nov.
6,
2011),
http://www.pbs.org/wgbh/pages/frontline/shows/gunning/interviews/ (remarking that Abu Zeinab alQurairy, a former Iraqi intelligence official, contended that the INC sponsored an imposter with his name to
contend that Hussein was training hijackers at Salman Pak and affirmed that the story was a “hoax”);
Hedges, supra note 116 (explaining that the INC “helped arrange the meeting and interview with the
defectors” who maintained that Iraq had been training terrorists to carry out attacks across Europe and
within the U.S. since 1995); Jehl, supra note 122 (remarking that a former Iraqi major relayed tales of
stockpiles of biological weapons, that intelligence agencies knew the defector was fabricating, and that the
defector was likely coached by the INC); Miller, supra note 121 (stating the INC arranged the interview
with the defector named Adnan Ihsan Saeed al-Haideri).
124
Hedges, supra note 116 (explaining that accounts of anonymous defects “mesh with” contentions made
by Sabah Khalifa Khodada Alami, a [former] captain in the Iraqi army.”).
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weapon information, the pipeline for the data flow, and whether there was an INC
relationship to the source.
First, a key Iraqi defector codenamed “Curveball” offered information for 112
U.S. intelligence reports of mobile biological weapon trailers in Iraq, but only one U.S.
intelligence official had apparently met him.125 Curveball’s descriptions were
unverifiable and he could not have had current knowledge of the state of such a program
because he had been seeking asylum in Germany for three years.126 Nearly a decade later,
the individual who claimed to be the previously anonymous Curveball admitted to
fabricating the story in order to bring down Saddam Hussein.127 The INC provided
similar pre-war sourcing about mobile biological weapon facilities, but Curveball was
apparently not an INC source.128
Second, coinciding with the growing number of defectors fleeing Iraq in 2002 and
offering information about prohibited weapon programs, Adnan Ihsan Saeed al-Haideri
publicly announced that he had personally worked in secret chemical, biological, and
nuclear weapons facilities, and the Bush Administration deemed al-Haideri a credible
witness who possessed firsthand and valuable knowledge.129 However, even before the
125
Bejesky, Intelligence Information, supra note 5, at 836-38; Robert Bejesky, Public Diplomacy or
Propaganda? Targeted Messages and Tardy Corrections to Unverified Reporting, 40 CAP. U. L. REV. 967,
1009-17 (2012) (providing an overview of how the claims of Curveball continued to linger long into the
occupation and how top Bush Administration officials continued to maintain that the accounts of mobile
biological weapon labs inside Iraq were true even though substantial evidence suggested otherwise).
126
Bejesky, Intelligence Information, supra note 5, at 838-40, 876.
127
Martin Chulov & Helen Pidd, Defector Admits to WMD Lies that Triggered Iraq War, THE GUARDIAN
(Feb. 15, 2011), http://www.theguardian.com/world/2011/feb/15/defector-admits-wmd-lies-iraq-war
(“Rafid Ahmed Alwan al-Janabi, codenamed Curveball by German and American intelligence officials
who dealt with his claims, has told the Guardian that he fabricated tales of mobile bioweapons trucks and
clandestine factories in an attempt to bring down the Saddam Hussein regime, from which he had fled in
1995.”).
128
Laura Rozen, Chalabi: Curveball Not Our Fabricator, MOTHER JONES (Nov. 6, 2007),
http://www.motherjones.com/mojo/2007/11/chalabi-curveball-not-our-fabricator; see also Bob Drogin,
Origins of ‘Curveball’ and the Iraq War, L.A. TIMES (Dec. 5, 2007), http://www.washingtonpost.com/wpdyn/content/discussion/2007/12/01/DI2007120101234.html (stating that Curveball came to the attention of
German intelligence and that he was not an INC defector).
129
Judith Miller, Defectors Bolster U.S. Case Against Iraq, Officials Say, N.Y. TIMES (Jan. 24, 2003),
http://www.nytimes.com/2003/01/24/international/middleeast/24DEFE.html (reporting that “there are deep
divisions in Washington over the value of information from defectors,” that the Pentagon Defense
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New York Times broke the account, al-Haideri failed a CIA administered lie detector test
and some CIA officials judged that he had fabricated the story. 130 The INC apparently
had coached al-Haideri on what to state as a witness.131 Noting an apparent pattern, David
Kay, the head of the international team tasked with searching for prohibited weapons in
Iraq during the occupation, later stated that many defectors acknowledged that they were
lying after taking polygraph tests and that “[s]ome of them claimed to have been coached
by the I.N.C., and some of them claimed to have been coached on how to pass
polygraphs.”132 Nonetheless, nine months after al-Haideri failed the polygraph test, the
White House quoted al-Haideri’s accounts as accurate in A Decade of Deception and
Defiance, which was a White House document used as a basis to recommence diplomacy
involving Iraq at the United Nations.133
Many defectors, both associated with and ostensibly independent from the INC,
were weaving allegations about Iraqi ties to 9/11 and about tremendous chemical and
biological weapon stocks into public consciousness and these allegations may have
further skewed American perceptions.134 A broad range of defector allegations were
Intelligence Agency was the most receptive, and that the CIA was most “dismissive of defectors and
questioned their credibility.”).
130
James Bamford, The Man Who Sold the War (John Rendon), ROLLING STONE (Nov. 17, 2005),
http://ics.leeds.ac.uk/papers/vp01.cfm?outfit=pmt&folder=2053&paper=2539.
131
Id. But see contra, Jim Dwyer, The Reach of War: The Weapons; Defectors’ Reports on Iraq Arms Were
Embellished, Exile Asserts, N.Y. TIMES (July 9, 2004), http://www.nytimes.com/2004/07/09/world/reachwar-weapons-defectors-reports-iraq-arms-were-embellished-exile-asserts.html?pagewanted=all&src=pm
(citing INC official retorting that the INC did not coach Saeed because his information was too technical).
132
Dwyer, supra note 131.
133
Text: A Decade of Deception and Defiance, WASH. POST (Sept. 12, 2002),
http://www.washingtonpost.com/wp-srv/onpolitics/transcripts/whitehouse_iraq091202.htm (stating that the
witness possessed Iraqi government contracts and technical specifications on “twenty secret facilities for
chemical, biological, and nuclear weapons).
134
Bejesky, Intelligence Information, supra note 5, at 817-19, 858-59, 875-77 (remarking that the SSCI’s
post-invasion investigations determined that there was no compelling evidence of an association between
Hussein’s regime and al-Qaeda and that evidence of prohibited weapon programs in Iraq was poor);
Bejesky, Press Clause, supra note 103, at 353-56 (citing polls that found 95% of Americans either
“believed Iraq already had WMDs” or was “trying to develop weapons” (Feb. 2002), that 91% of
Americans believed that “Iraq was concealing nuclear, biological and chemical weapons” (Dec. 2002),
“81% saw Iraq as a ‘threat to the United States’” (Dec. 2002), and that 66% of American believed that
Hussein assisted the 9/11 hijackers (Oct. 2002).
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publicized prior to September 2002, the month in which diplomacy renewed at the United
Nations and in which debates resurfaced in the U.S. Congress regarding the use of force
against Iraq.135 However, three months before these political initiatives began, the INC
delivered a memorandum to the U.S. Senate Appropriations Committee to accept credit
for providing “[d]efectors, reports, and raw intelligence” allegations “directly to White
House and Pentagon policy officials” and to the media.136 The report effectively itemized
how U.S. taxpayers were funding the INC’s efforts to bring information to the media and
referenced that the INC sourced 108 English-language news articles between October
2001 and May 2002.137
When defectors offered allegations directly to the media and to government elites,
data circumvented potential expert assessments that might have otherwise been provided
by the U.S. intelligence apparatus,138 even though the publication of sourcing could
impact public perceptions. Other information was filtered through American intelligence
agencies prior to receipt by government officials or publication and this information flow
from these classified sources was the subject of a specific SSCI investigation.139
Following the Department of State’s decision to rid itself of the organization,140 in late135
Bejesky, Weapon Inspections, supra note 18, at 311-14 (noting how the Bush Administration began
interacting with Congress and the Security Council regarding a use of force against Iraq in mid-September
2002).
136
S. REP. 109-330, at 187 (2006) (stating that this memorandum from the Director of the INC to the
Senate Appropriations Committee was provided on June 26, 2002).
137
DAVID L. PHILLIPS, LOSING IRAQ: INSIDE THE POSTWAR RECONSTRUCTION FIASCO 74 (2005) (stating
that in this INC document, entitled “Summary of ICP Product Cited in Major English Language News
Outlets Worldwide,” the INC “provided extensive details on the INC’s use of U.S. government grants to
develop information products”); List of Articles Cited by the Information Collection Program (ICP),
MCCLATCHY NEWSPAPERS (May 15, 2004), http://www.mcclatchydc.com/2004/05/15/16633/list-ofarticles-cited-by-the.html (citing the 108 articles).
138
S. REP. 109-330, at 29-31, 187 (2006); See generally this Part.
139
Id. at 74, 85; see id at 35-112 (explaining that the INC sponsored nineteen witnesses for the American
intelligence apparatus); see id. at 40, 57, 110 (due to the classification of INC defector identities, it is not
clear whether these are the same defectors who circulated the media with allegation; they are identified as
“Source One,” “Source Two,” and so on up to “Source Nineteen,” to maintain confidentiality).
140
Interview with Lawrence B. Wilkerson, chief of staff at the State Department at the time; see also S.
REP. 109-330, at 28 (2006) (“concerns grew in [the State Department] that there were serious mishandling
of money issues that needed to be examined in INCSF to avoid a potentially embarrassing situation for the
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October 2002 and five months before the invasion of Iraq, the Defense Intelligence
Agency (DIA) took responsibility over the INC and very quickly became aware that INC
data “was of little or no value” and often false.141 Consequently, the DIA was so incensed
that it was compelled to decimate the INC’s operations by imposing a contractual
oversight clause, which prohibited the INC from engaging in “any intelligence operations
in Iraq” and required the INC “to ‘NOT publicize or communicate in any way with
anyone any of its information collection operations or announce the names and activities
of Iraqi expatriates without prior written authorization from DIA.”142 However, even with
the understanding that INC data should have immediately aroused incredulity, some of
the INC allegations were treated with credibility. The SSCI discovered that there were
many instances in which members or departments of the IC issued a “fabrication notice”
about human intelligence sources, but those notices were not always heeded.143
E.
PREDICTABILITY OF CURRENT DEFECTOR ACCOUNTS
Applying logical reasoning to the inequality, Bn + PwTc > (1 – Pw)(F0), the INC’s
general position and the emergence of a procession of defectors with questionable
accounts seem predictable. First, in addition to countermanding assumptions to designate
this as a non-cooperative interaction, it was necessary to assume that the Administration
administration and for State”); DAN CALDWELL, VORTEX OF CONFLICT: U.S. POLICY TOWARD
AFGHANISTAN, PAKISTAN, AND IRAQ 121 (2011) (remarking that “the State Department provided millions
of dollars in aid to Chalabi and the Iraqi National Congress, but then backed away from this support when
it appeared that Chalabi and the INC were misusing funds.”).
141
S. REP. 109-330, at 29-31 (2006) (other agencies questioned INC data); 152 CONG. REC. 18184 (Sept.
14, 2006) (statement by SSCI member Senator Durbin) (“Members of the intelligence community had
warned that this Ahmed Chalabi, the darling of many people in this administration was in fact a fraud”);
Douglas Jehl, Agency Belittles Information Given by Iraq Defectors: Exile Group Got Millions, N.Y.
TIMES, Sept. 29, 2003, at A1, available at http://www.nytimes.com/2003/09/29/world/agency-belittlesinformation-given-by-iraq-defectors.html?scp=1&sq=&st=nyt (stating that the DIA conducted “extensive
debriefing” of defectors, that the INC “often invented or exaggerated their credentials as people with direct
knowledge,” that U.S. taxpayers funded the operations, and that “the State Department and the Central
Intelligence Agency had long been skeptical of the information from defectors that Mr. Chalabi’s
organization had brought out of Iraq”).
142
S. REP. 109-330, at 31 (2006).
143
Id. at 65, 77, 79, 90-91, 114-17, 120-22; NESTER, supra note 96, at 45 (stating that the DIA later
admitted that “two-thirds of the ‘intelligence’ provided by Chalabi’s agents before the war was completely
wrong, while less than a third had any potential value”).
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was capable of being detached from its own ostensible preferences regarding Iraq, would
view INC data critically and neutrally, and would rationally choose to only accept
sources that it trusted as accurate. Following these assumptions and the rational choice
inequality, the Administration should accept INC data as probative when it believes that
the INC perceives that Pw approaches 1 and when Fo is sufficiently high to overcome the
moral hazard problem.144 That said, these two conditions assuredly do not equate to
assuming defector accounts are true merely because the INC has a higher overall utility,
because if defector risk-taking is prima facie rewarded by an Administration that grants
immunity or treats inaccurate claims as harmless error, Fo is inconsequential. Otherwise,
Fo could theoretically include political, penal, or financial punishment. Penalization
would certainly not be illogical because it is a crime to lie to Congress, courts, the FBI,
and other government entities.145 Without a sufficiently high Fo, which is a cost that the
Executive controls and can signal to the INC, the INC benefit of providing data will
always exceed the cost, regardless of accuracy, and therefore, it may not be reasonable
for the government to presume that the INC would only provide sourcing with probity.
A second contingency is that the government might suspect that some defector
testimonials are true and some are false. However, the interaction between the INC and
Administration cannot decidedly approximate a strategic, sequential interaction with
updating information that permits each side to react to the other’s previous decisions
See generally supra Part II(A)(1).
18 U.S.C. § 1621 (2013) (criminalizing false statements under oath during official
federal proceedings); 18 U.S.C. § 1623 (2013) (prohibiting false statements under oath
during federal court or grand jury proceedings); U.S. v. Hamid Hayat, D.C. No. Cr-0500240-GEB,
at
5,
10-11
(9th
Cir.)
(Mar.
13,
2013),
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/13/07-10457.pdf
(defendant
convicted for lying to government officials by stating that he did not attend a terrorist
camp); Z. Byron Wolf, Congress Still Torn on Pre-War Intelligence, ABC NEWS, (June 6,
2008), http://abcnews.go.com/Politics/story?id=5008897&page=1 (in the context of prewar intelligence, Senator Wyden reminding that lying to Congress is a felony).
144
145
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during specified time intervals (as is common in game theory).146 An invasion with a
physical presence inside Iraq may yield the only clear corroboration of whether defectors
had previously chosen to provide trends of accurate or inaccurate data to modify the
government’s real-time reactions or assumptions about the credibility of accounts of
defectors for subsequent prewar intervals. Some exceptions include the eminently
implausible scenario that a number of sources acknowledge that they provided false
information or it becomes conspicuous to the IC through verification procedures that INC
accounts could not be trusted with a high probability. For example, CIA information
collectors reportedly dealt with defector credibility and sought to decrease the possibility
of error during debriefing sessions by attempting to verify accounts and administering lie
detector tests on defectors.147 Another complication inherent to verification is that
witnesses were debriefed concomitantly with the high security threat atmosphere in the
U.S.148 Even if it became known that a high percentage of defectors transmitted false
information, government officials may still treat all accounts with initial credibility.
Now considering these two possibilities in relation to what in fact transpired in
the relations between the U.S. government and the INC; Chalabi was the darling of the
Bush Administration in a seeming cooperative relationship (as discussed infra) and then
tumbled from its privileged position only after the invasion. Accentuating that the
members of the IC informed the Bush Administration that “Ahmed Chalabi... was, in
fact, a fraud,” SSCI member Senator Durbin stated on the floor of the Senate that even
while it was known that the INC was “not trustworthy... this administration still eagerly
embraced this source.”149 The Bush Administration continued to sponsor Chalabi and the
SAMUELSON, supra note 99, at 106 (noting the importance of time intervals and
updating information for iterative decision-making and emphasizing that time horizons
can be uncertain).
147
Bamford, supra note 130; see also Bejesky, Intelligence Information, supra note 5, at
876 n.464 (listing IC agencies and analysts refuting CIA witnesses and evidence).
148
See generally Robert Bejesky, A Rational Choice Reflection on the Balance Among
Individual Rights, Collective Security, and Threat Portrayals Between 9/11 and the
Invasion of Iraq, 18 BARRY L. REV. 31 (2012).
146
149
152 CONG. REC. 18184 (Sept. 14, 2006); 149 CONG. REC. 30185 (Nov. 20, 2003) (statement of
Representative Delahunt) (remarking that a member of the Bush Administration “described Mr. Chalabi in
the most effusive of terms, as if he were going to be the George Washington of Iraq.”); CALDWELL, supra
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INC during the occupation,150 and it was only after misrepresentations became irrefutable
and someone needed to be blamed for false allegations about prohibited weapons in Iraq
that Chalabi fell out of the favor of the Bush Administration and the public performance
of accusation-casting between Chalabi and the Bush Administration began.151 Ironically,
the newspaper that so eagerly inaugurated and reproduced defector claims—The New
York Times152—interpreted this lovers’ quarrel by stressing that journalists were held at
the whim of both the Bush Administration and the INC and announcing that “[Bush]
Administration officials now acknowledge that they sometimes fell for misinformation
from these exile sources.”153
Congress was also a feeble check on relations between American government
agencies and INC operations. Congress had allocated funding for the INC, but
congresspersons were ostensibly not privy to the nature of the truthfulness in these
note 140, at 121 (remarking that “the Bush administration depended on Ahmad Chalabi and the Iraqi
National Congress” in a manner that was similar to the Bush administration’s appointment of, support for,
and dependence on Hamad Karzqi in Afghanistan).
150
150 CONG. REC. 9735 (May 17, 2004) (statement by Representative Abercrombie) (stating that
Chalabi’s position of governance in Iraq over one year into the occupation: “[Chalabi] continues to receive
the favor of [the Bush] administration”); COYNE, supra note 76, at 95 (noting the close ties with the Bush
administration both before and after the war and how Chalabi “influenced both the decision to go to war
and postwar planning”). Three weeks after the invasion, Chalabi was perceived as so important that he was
making appearances in the U.S. to discuss developments inside Iraq and making forecasts about the U.S.
occupation. Interview by Tim Russert with Ahmad Chalabi, Iraqi Nat’l Cong., NBC MEET THE PRESS (Apr.
13, 2003), available at http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2383.
151
David E. Sanger, A Seat of Honor Lost to Open Political Warfare, N.Y. TIMES (May 21, 2004), at A1
(stating that Ahmad Chalabi reached the pinnacle of influence in Washington four months ago, when he
took a seat of honor right behind Laura Bush at the President’s State of the Union address,” but after the IC
maintained that Chalabi fabricated information and may have been involved in other wrongdoing, “Iraqi
police and American troops seeking evidence of fraud, embezzlement and kidnapping by members of his
Iraqi National Congress,” and this led to “open political warfare with the Bush administration”); Ken
Guggenheim, Chalabi: Defectors gave Iraqi Arms Info, ASSOC. PRESS, June 13, 2003,
http://www.apnewsarchive.com/2003/Chalabi-Defectors-Give-Iraq-Arms-Info/id0d4b818170a4b81d911a94493a912947 (reporting that Secretary of State Powell remarked that he was
unable to substantiate Chalabi’s claims because he continued to make new ones every year).
152
Iraq’s Chalabi Says He Did Not Mislead U.S., supra note 13.
153
Editorial, The Times and Iraq, N.Y. TIMES, May 26, 2004, at A10 (emphasis added).
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DEFECTORS AND THE MORAL HAZARD PROBLEM
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accounts.154 However, anecdotal reports did relay that some government agents should
have known before this prewar period began that defectors would be expected to produce
false accounts155 and that the organization should have been scrutinized. Instead, while
being funded for over a decade, accountability for and supervision over the INC was
transferred from the CIA to different federal agencies,156 even though the CIA founded
and sustained the INC as a separate entity pursuant to a covert order with a mission that
endeavored to overthrow the Iraqi government. The INC, perhaps deceptively to some
degree from its origin, followed through on the CIA’s original mission by disseminating
information publicly and providing data back to the IC.157 The CIA later distanced itself
from the monster it sired.158
154
S. REP. 109-330, at 29-31 (2006).
Id. at 25 (quoting former CIA Director Tenet who stated that “there was a breakdown
in trust and we never wanted to have anything to do with him anymore.”); Jehl, supra
note 141 (remarking that the CIA and State Department had been skeptical of INC
defectors); Mayer, supra note 12 (contending that the INC apparently had fabricated Iraqi
newspapers and documents made to appear to originate from President Clinton’s National
Security Council, and noting that former CIA official Robert Baer remarked that Chalabi
was reporting “total trash” during the 1990s).
156
S. REP. 109-330, at 4, 25 (2006) (stating that the SSCI discovered that the CIA and
Chalabi severed relations in February 1997 but did not investigate the reason for the
“mutual disaffection”).
157
See supra Part II(B) (discussing the Bush Sr.’s presidential finding that sought to
overthrow the Iraqi government and dissemination of information during the 1990s); See
supra Part II(D)(2) (emphasizing claims made during the prewar period). With respect to
deceptively executing the CIA’s mission, see generally Gia B. Lee, Persuasion,
Transparency, and Government Speech, 56 HASTINGS L.J. 983, 1012-13 (2005) (stating
that transparent government communications can inject skewed views in the public
debate without citizens being aware and this can result in greater populace persuasion for
the government policy).
155
158
See supra notes 141, 156 (emphasizing CIA cutting relations with the INC and emphasizing there was a
breakdown in trust and that the INC was known to be producing false information). Likewise, the CIA did
not properly account for allocations of U.S. taxpayer funding provided to the INC. PHILLIPS, supra note
137, at 72 (stating that the CIA alleged that the INC kept “shoddy records” and would not cooperate with
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Condensing the core conclusion regarding the predictability of defector accounts
under the assumption of a non-cooperative government-INC interaction, unless it
becomes publicly apparent that Pw (the probability that prohibited weapons exist) is
excessively low, that there are trends imputing low defector credibility, and the
government signals that Fo (the cost of furnishing untrue accounts) will be high to deter
false information, Bn + PwTC > (1-Pw)(Fo) should hold irrespective of the INC’s actual
belief about Pw or apparent generalizations about the credibility of witnesses that the INC
sallies forth. Rather than signaling a perceived cost before the invasion, the Bush
Administration actually ushered defectors to positions of government authority and
economic benefit inside Iraq after Hussein’s regime was displaced, 159 which were
windfall benefits (Bn) that may have been expected at the time the defectors began
disseminating information before the war.160 Continuing down this line of analysis,
audits, with Chalabi contending that audits would “breach the security of the operation.”); Mayer, supra
note 12 (former INC official stating that CIA transactions with the INC were all in cash); Mark Hosenball
& Michael Hirsh, Chalabi: A Questionable Use of U.S. Funding, NEWSWEEK (Apr. 5, 2004), at 8 (noting
that there was “hanky-panky with the accounting” at the INC, including triple billing and inflated costs).
Not only is the use of a covert operation and a non-government organization for CIA publicity efforts and
the inability to account for U.S. taxpayer funding scandalous, the problems were not solved when the U.S.
Department of State accepted responsibility over the INC. OFFICE OF INSPECTOR GEN., supra note 93, at 1,
7, 10, 13 (reporting that there was “[i]nsufficient documentation for cash transactions,” that over the 200001 period, auditors discovered that there was “fraud, waste, and abuse,” and that between $2.2 out of $4.3
million in INC funding were not documented because they were categorized into a classified black budget).
159
Bejesky, Geopolitics, supra note 63, at 196, 215-17, 222-23, 231, 239, 250, 276.
160
KJETIL SELVIK & STIG STENSLIE, STABILITY AND CHANGE IN THE MODERN MIDDLE EAST 225 (2011)
(stating that “[t]hanks to personal contacts with influential people in the Pentagon and CPA boss Bremer,
Chalabi was able to place his men in strategically important posts such as Finance Minister, Oil Minister,
and Trade Minister in the occupation government”); RAMPTON & STAUBER, supra note 58, at 62-63
(remarking that some White House and Pentagon officials apparently sought to appoint Chalabi the
president of Iraq); David Rohde, Political Party in Mosul Emerges With Own Army, N.Y. TIMES, Apr. 18,
2003, at B3 (reporting that as Baghdad was suffering from civil unrest, the INC was being called a
“political party,” and that the INC is the sole group that “shares a base with American Special Forces
soldiers, has a private army trained by the Americans;” and that Nabeel Musawi, the deputy-director of the
INC, stated: “I believe the I.N.C. is the future of Iraq”). With respect to the perception that the INC would
be governing Iraq after Hussein’s regime was overthrown, former UN weapons inspector Scott Ritter
remarked that Chalabi asked Ritter to do “intelligence work” for the INC in January 1998 and began
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DEFECTORS AND THE MORAL HAZARD PROBLEM
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additional facts suggest that all times defector-Administration interactions were
cooperative.
F.
CAUSAL MECHANISMS FRAMING NON-COOPERATIVE AND COOPERATIVE
CONTEXTS
There is overlap between non-cooperative and cooperative game theory, but a
foremost traditional distinction is that non-cooperative interactions are generally applied
to situations in which agents have disparate individual interests, while cooperative or
coalitional game theory is generally modeled with actors as part of a collective group
with more united interest.161 When one incorporates the additional facts discussed, it
seems unreasonable to assume that the relationship between the government and
defectors approximated a non-cooperative interaction. Additional details make it seem
that the Bush Administration was not wary of the credibility of defector allegations and
that defectors may as well have perceived Pw to be near 0 and perceived no deterrence
cost (F0).
There was some intelligence data that represented a suspicion that prohibited
weapon programs may have existed in Iraq even prior to President Bush’s inauguration,
but President Clinton did not emphasize the threat, and IC conclusions took a more
drastic turn during the Bush Administration.162 Defectors provided some of the IC data
that may have influenced new estimates and there is much evidence to indicate that the
invasion occurred because the Executive’s foreign policy was established and intelligence
conclusions were developed to support the policy.163 As Senator Carl Levin remarked, the
promising favors that would be delivered to Ritter after Chalabi became president of Iraq, but Chalabi
denied Ritter’s claim. Mayer, supra note 12.
161
KEVIN LEYTON-BROWN & YOAV SHOHAM, ESSENTIALS OF GAME THEORY: A CONCISE
MULTIDISCIPLINARY INTRODUCTION 47 (2008).
162
S. REP. NO. 108-301 (2004), at 85, 145, 147, 205, 209 (finding that there were significant changes in
intelligence estimates from uncertainty to certainty based on assuming that circumstantial information
should be interpreted with caution); Bejesky, Weapon Inspections, supra note 18, at 353-54 (reporting that
former President Clinton stated that support from the international community was not strong, pointed out
that the evidence that claimed to make Iraq a security threat was ambiguous, and emphasized that he would
have “taken the word of United Nations weapons inspector Hans Blix over U.S. intelligence reports.”).
163
S. REP. NO. 108-301, at 505 (2004) ([a]n intelligence analyst stated that “the going-in assumption was
we were going to war, so this NIE was to be written with that in mind... that was what was said to us...the
conop order had been given months before, months. Deployments had already begun.”); Press Release,
U.S. SENATE SELECT COMM. ON INTELLIGENCE, Senate Intelligence Committee Unveils Final Phase II
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“massive intelligence failures before the Iraq War...were the result of the CIA shaping
and manipulating intelligence to support Administration policy.”164 Professor Manuel
Castells was more blunt when he stated that “[t]he US government has a well-established
tradition of fabricating intelligence to justify its actions, particularly in moments of
decision between war and peace in order to sway public opinion,” and further accentuated
that “the multifaceted strategy of misinformation leading to the Iraq War... stands out as a
textbook case of political propaganda.”165
If one assumes more unified intent and consistent preferences, defectors could
have merely initiated false allegations that manipulated public perceptions and later
functioned as a conduit for blame, thereby permitting the Bush Administration to avoid
accepting extended responsibility for a war it favored. The Executive could have chosen
to accept or reject the defector accounts, but elected to accept the information because it
comported with the Executive’s preconceived plans to attack Iraq. Here, the
Administration was not solely acting on faulty intelligence estimates, 166 and was not
merely relying on defector accounts, but may have used and exploited defectors.
Meanwhile, the American public, as the parent in this agency relationship with the
Executive and the true party-in-interest, was being led by joint defector and Executive
Reports on Prewar Iraq Intelligence, 110th Cong. (June 5, 2008), available at
http://intelligence.senate.gov/press/record.cfm?id=298775 (remarking that “the Administration made
significant claims that were not supported by the intelligence,” “repeatedly presented intelligence as fact
when in reality it was unsubstantiated” and even “non-existent,” and “led the nation into war under false
pretenses”); JAMES BAMFORD, BODY OF SECRETS 333-37 (2001) (remarking how the intelligence was
unsubstantiated); Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J.
1199, 1253 (2006) (“There should be no question that the prewar information was distorted, hyped, and
fabricated. The October 2002 NIE prepared by the intelligence community is plain evidence of that…”).
164
Senator Carl Levin, Remarks of Senator Carl Levin at the Paul Warnke Lecture on International
Security at the Council on Foreign Relations, (Sept. 13, 2004), available at
http://levin.senate.gov/newsroom/release.cfm?id=226066; Paul R. Pillar, Intelligence, Policy, and the War
in Iraq, FOR. AFFAIRS (Mar. 2006), http://www.foreignaffairs.com/articles/61503/paul-r-pillar/intelligencepolicyand-the-war-in-iraq (former CIA analyst remarking that “[i]n the wake of the Iraq war, it has become
clear that official intelligence analysis was not relied on in making even the most significant national
security decisions,” but instead the “intelligence community’s own work was politicized” because the Bush
administration “used intelligence not to inform decision-making, but to justify a decision already made.”).
165
MANUEL CASTELLS, COMMUNICATION POWER 265 (2013).
166
Bejesky, Intelligence Information, supra note 5, at 811-13.
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accounts of prohibited weapon programs that instilled fear of security threats and thereby
acceptance of the Executive’s favored policy.
G.
A COOPERATIVE INTERACTION WITHOUT DOUBTS OVER THE MORAL
HAZARD PROBLEM
1. Planning for War
Consider some of the facts, not necessarily dependent on Iraqi defector
allegations, suggesting that the Bush Administration led other actors to support its chosen
policy to invade Iraq. The Bush Administration initiated agenda setting with allegations
of security threats from Iraq and demanded a congressional vote and a UN authorization
to use force six months before the war actually occurred167 and prior to the IC taking any
steps toward the production of the highly-flawed (in process and substance) National
Intelligence Estimate.168 Many IC officials and experts acknowledged that intelligence
was being crafted around the Executive’s policy of invasion.169 Three years after the war,
the Downing Street memos were released. The memos documented that on July 21, 2002,
the British Cabinet Office held meetings on joint discussions with the Bush
Administration and itemized the proposal for the British government to merge plans to
participate with the Pentagon’s already designed invasion plan, to prepare public opinion
Bejesky, Political Penumbras, supra note 17, at 19-30 (describing the interaction with
the U.S. Congress which involved the Bush administration initiating public allegations to
Congress and the United Nations about Iraq as a security threat and specifying that there
was evidence to support the contentions, that members of Congress requested intelligence
assessments from the IC due to the Bush administration’s high profile rhetoric, and that
members of Congress were being pressured to accept the allegations and approve an
authorization to use military force right before the November 2002 elections); Bejesky,
Weapon Inspections, supra note 18, at 303-15 (specifying how the initial allegations and
agenda setting began with top official within the Bush administration circulating the
media in early September 2002).
167
168
See generally Robert Bejesky, The SSCI Investigation of the Iraq War: Part I: A Split Decision, 40 S.U.
L. REV. 1 (2012).
See generally Robert Bejesky, The SSCI Investigation of the Iraq War: Part II:
Politicization of Intelligence, 40 S.U. L. REV. 243 (2013).
169
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to support the war,170 and to “fix intelligence and facts... around the policy” for
invasion.171 For the following details, recall that the invasion of Iraq took place on March
19, 2003, and that official investigations determined that Iraq had no prohibited weapons
programs or ties to al-Qaeda.172
Complementing the accounts of other Bush Administration officials, Secretary of
Treasury Paul O’Neill served as a whistleblower when he appeared on 60 Minutes in
2004 and informed Americans that top Bush Administration officials began to examine
methods of deposing the Iraqi government at the first White House National Security
Council (NSC) meetings in January and February 2001.173 The President tasked his NSC
170
Cabinet Office Paper: Conditions for Military Action, SUNDAY TIMES (June 12, 2005),
http://www.thesundaytimes.co.uk/sto/news/world_news/article136979.ece; John Daniszewski, Indignation
Grows in the U.S. Over British PreWar Documents, L.A. TIMES (May 12, 2005),
http://articles.latimes.com/2005/may/12/world/fg-memogate12 (reporting that Blair enumerated conditions
for participation, which included “construct[ing] a coalition” and “shap[ing] public opinion”).
171
151 CONG. REC. E1352 (June 24, 2005); see The Secret Downing Street Memo, SUNDAY TIMES (May 1,
2005), http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB328/II-Doc14.pdf (“Military action was now
seen as inevitable. Bush wanted to remove Saddam,’ says the memo, ‘through military action, justified by
the conjunction of terrorism and W.M.D. But the intelligence and facts were being fixed around the
policy...the case was thin.’”). Thirty-year CIA analyst Ray McGovern remarked of the hypocrisy that
existed in the CIA by stating that intelligence estimates were constructed with objectivity: “We have
documentary evidence that George Tenet, for example, told his British opposite number on the 20th of July
2002...that the intelligence was being ‘fixed around the policy.’ It doesn’t get any clearer than that.” ExCIA Analyst Accuses Tenet of Hypocrisy For Not Speaking Out Earlier on White House Push For War,
DEMOCRACY
NOW!
(May
1,
2007),
http://www.democracynow.org/2007/5/1/ex_cia_analyst_accuses_tenet_of.
172
Press Release, supra note 163 (SSCI Chair remarking that the Bush Administration’s allegations about
al-Qaeda and Iraq led the nation to war on false pretenses); Bejesky, Intelligence Information, supra note 5,
at 817-19, 858-59, 875-77 (summarizing government investigations on the weapons claims).
173
W. LANCE BENNETT, REGINA G. LAWRENCE & STEVEN LIVINGSTON, WHEN THE PRESS FAILS: POLITICAL
POWER AND THE NEWS MEDIA FROM IRAQ TO KATRINA 25-26 (2007) (“In the book The Price of Loyalty,
O’Neill charged that 9/11 merely provided the pretext for a war that was already on the agendas of Vice
President Cheney, Defense Secretary Rumsfeld, and the President, among others,” and further noting that
“Colin Powell's former Chief of Staff Lawrence Wilkerson” emphasized that the war was driven by a
“’cabal’ of Rumsfeld and Dick Cheney”); See also Bejesky, Politico, supra note 22, at 63-64 (discussing
the 60 Minutes interview and revelations that followed); Bejesky, Geopolitics, supra note 63, at 215-20,
229-31 (explaining that the White House established a Future of Iraq Project in early 2002 that selected
Iraqi defectors to generate advisory reports for government and private sector reform during a planned
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46
members to consider ways of pressuring the Iraqi regime and to ponder military options
to overthrow the regime.174 O’Neill’s accounts probably should not have been startling;
the title of a New York Times article printed on January 11, 2001, which was prior to
inauguration, reads “Iraq is Focal Point as Bush Meets with Joint Chiefs.”175 It was at the
first NSC meeting that the Bush Administration decided that the INC would again be
funded.176 This was also publicly announced. On February 2, 2001, The London
Guardian wrote: “President George Bush has taken the first steps towards making the
overthrow of Saddam Hussein an explicit goal of US policy on Iraq;” “The Bush
administration has issued an order permitting Iraqi opposition groups to begin limited
moves inside Iraq using US government funding,” naming the INC as one organization
that would begin the “collection of informational materials,” and opening the possibility
of supporting the INC to issue “other propaganda.”177
Bush’s appointees in the Office of the Secretary of Defense began to rapidly act
on the President’s NSC initiative with propaganda programs. The New York Times sued
the Department of Defense in a Freedom of Information Act action and in 2008 finally
obtained 8,000 pages of “e-mail messages, transcripts and records describing years of
occupation of Iraq, and that those defectors became prominent government officials in Iraq after Hussein’s
regime was ousted).
174
RON SUSKIND, THE PRICE OF LOYALTY: GEORGE W. BUSH, THE WHITE HOUSE, AND THE EDUCATION OF
PAUL O’NEILL 75 (2004); J.M. Spectar, Beyond the Rubicon: Presidential Leadership, International Law &
The Use of Force in the Long Hard Slog, 22 CONN. J. INT’L L. 47, 98 (2006) (stating that the President
doled out assignments, which included “evaluating the feasibility of introducing U.S. ground forces into
Iraq—ten days after the inauguration ”).
Eric Schmitt & James Dao, Iraq is Focal Point as Bush Meets with Joint Chiefs, N.Y.
TIMES, Jan. 11, 2001, at A20 (further reporting that Secretary of Defense Cohen
remarked that sanctions had worked and that “Saddam Hussein’s forces are in a state
where he cannot pose a threat to his neighbors…,” but one Pentagon official stated that
“Iraqi policy is very much on [Bush’s] mind…Saddam was clearly a discussion point.”).
175
176
STROBE TALBOTT, THE GREAT EXPERIMENT:
THE QUEST FOR A GLOBAL NATION 352 (2008).
177
THE STORY OF ANCIENT EMPIRES, MODERN STATES, AND
Martin
Kettle,
Bush
Funds
Iraqi
Opposition,
GUARDIAN
(Feb.
2,
2001),
http://www.guardian.co.uk/world/2001/feb/03/iraq.usa (“Further orders not yet authorised would permit the
INC to use US funds to open a permanent centre of operations in northern Iraq, where overt activities
would include the publication of a newspaper and other propaganda.”).
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private briefings” to assess the Secretary of Defense’s elaborate “independent” military
analyst program which instructed former military officials to appear detached from the
Pentagon and circulate national news outlets and urge for an invasion and occupation of
Iraq.178 The New York Times discovered that this plan specifically emphasized a goal of
persuading an admittedly unwilling American populace to support military action against
Iraq and that the program was designed before 9/11.179 Defectors were also involved with
the Pentagon’s Office of Special Plans,180 which was an unofficial and unauthorized
intelligence unit within the Office of the Secretary of Defense that provided allegations to
the Bush administration181 and offered much more than politicized and contaminated
intelligence. This unit wholeheartedly embraced falsities from the INC and other
David Barstow, Behind TV Analysts, Pentagon’s Hidden Hand: Courting Ex-Officers Tied to Military
Contractors, N.Y. TIMES, Apr. 20, 2008, at A1; see also Diane Farsetta, Shelton Rampton, Daniel Haack &
John Stauber, Lying About War: Deliberate Propaganda and Spin by the Pentagon, in CENSORED 2010:
THE TOP 25 CENSORED STORIES OF 2008-09, at 221-23 (Peter Phillips, Mickey Huff & Project Censored
eds., 2009) (calling the New York Times story one of the most censored stories because the news networks
that were hosting the “independent military analysts” simply ignored the verification that it had been
manipulating the American public for war).
179
Id; CASTELLS, supra note 165, at 265 (stating that the actual appearance of the analysts on networks
“started in early 2002, as the march toward the war began despite public hesitation to engage in military
action” and further noting that “there was a quid pro quo [for the analysts]: report as we tell you and you
will receive access to sources, and, more importantly, access to contracts from the Defense Department.”).
Andrew J. Bacevich, a Vietnam War Veteran, wrote of the trend he views about the dangers in cognitive
manipulation (and susceptibility of the American public to that manipulation) involving the military and
states that his book is about “the misleading and dangerous conceptions of war, soldiers, and military
institutions that have come to pervade the American consciousness and that have perverted present-day
U.S. national security policy.” ANDREW J. BACEVICH, THE NEW AMERICAN MILITARISM: HOW AMERICANS
ARE SEDUCED BY WAR, at xi (2nd ed., 2013).
180
Charles Tiefer, The Iraq Debacle: The Rise and Fall of Procurement-Aided Unilateralism as a Paradigm
of Foreign War, 29 U. PA. J. INT’L L. 1, 33 (2007).
181
DEPARTMENT OF DEFENSE OFFICE OF INSPECTOR GENERAL, REVIEW OF PRE-IRAQI WAR ACTIVITIES OF
THE
OFFICE OF THE UNDERSECRETARY OF DEFENSE FOR POLICY, Feb. 9, 2007,
http://i.a.cnn.net/cnn/2007/images/02/09/dodig.execsummary.020907.pdf; SENATE SELECT COMMITTEE ON
INTELLIGENCE, INTELLIGENCE ACTIVITIES RELATING TO IRAQ CONDUCTED BY THE POLICY
COUNTERTERRORISM EVALUATION GROUP AND THE OFFICE OF SPECIAL PLANS WITHIN THE OFFICE OF THE
UNDER SECRETARY OF DEFENSE FOR POLICY 2, S. REP. NO. 108-301, June 5, 2008 (Senator Levin
criticizing and proposing to “Review the activities of the Undersecretary of Defense for Policy” in
September 2005).
178
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DEFECTORS AND THE MORAL HAZARD PROBLEM
48
defectors and sources that ultimately proved to be ideologically-driven propaganda.182
In late 2001, Bush approved covert operations for the CIA, which it called
“Anabasis,” a program that included implementing propaganda operations inside Iraq that
would suggest the regime was under threat, postulating blowing up railroad lines and
communication towers, and considering assassinating key officials, all of which could
foment retaliation and initiate a war.183 Revelations of using pretexts to start a war arose
again three years after the invasion when British memos were released of the minutes of a
meeting in the White House three months before the war at which President Bush
discussed with British Prime Minister Blair how war might be justified if an Iraqi
retaliation could be provoked by flying a reconnaissance aircraft at low altitudes or if
Iraqi defectors emerged to attest to having seen weapons of mass destruction in Iraq.184
In April 2002, ‘Anabasis’ involved recruiting Kurds for operations that would
have endangered their lives if the plan failed. After the Iraqi government became aware
of these operations, CIA officials and President Bush assured that there would be an
American military invasion in order to persuade the Kurds to participate.185 Bush also
tasked military commanders with developing war plans starting in November 2001 and
182
Julian Borger, The Spies who Pushed for War, GUARDIAN (July 17, 2003),
http://www.guardian.co.uk/world/2003/jul/17/iraq.usa (noting of the Office of Special Plans, “[a]ccording
to former Bush officials, all defence and intelligence sources, senior administration figures created a
shadow agency of Pentagon analysts staffed mainly by ideological amateurs to compete with the CIA and
its military counterpart, the Defense Intelligence Agency;” remarking that “[t]he ideologically driven
network functioned like a shadow government, much of it off the official payroll and beyond congressional
oversight;” and quoting Gregory Thielmann, a former senior official at the State Department’s Intelligence
Bureau, stating that the OSP “surveyed data and picked out what they liked”).
183
MICHAEL ISIKOFF & DAVID CORN, HUBRIS: THE INSIDE STORY OF SPIN, SCANDAL, AND SELLING OF THE
IRAQ WAR 7-8, 10, 153, 155-57 (2006).
184
Bejesky, Politico, supra note 22, at 81-82 (also noting that the reactions from British experts over the
release of the January 2003 memos were puissant with Claire Short, a Member of Parliament (MP),
remarking that “at senior levels in the U.S. administration, crazy, illegal, deceitful proposals like that were
actually being contemplated to trigger a war by deceit;” MP Menzies Campbell opined that the U.S.
President’s attempt to “provoke…to give a justification [for war]...suggests a degree of desperation” and
knowledge that they did not have evidence that Iraq was in breach; and Professor Sands contending that the
context clearly reveals that “the British Prime Minister and the U.S. President were conscious that they had
no evidence of their own” and they “would have to procure a material breach through some other means.”).
185
ISIKOFF & CORN, supra note 183, at 10-12, 47, 82, 156.
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received periodic briefings on the developments of those war plans while publicly
denying that there were war plans when journalists inquired.186 By mid-2002, the media
did announce that there were indeed war plans and that there were U.S. troop
deployments to countries contiguous to Iraq.187
Defectors also appeared in the media with terrorist and chemical, biological, and
nuclear weapon tales after the initial White House NSC meetings and shortly after 9/11,
and did so with an intention of pinning the 9/11 attacks on Iraq.188 It was the Bush
Administration’s NSC that decided to increase funding to the INC in order to obtain
information pertaining to military operations, weapons, war crimes, and internal
developments inside Iraq, even after other U.S. government agencies sought to
disassociate themselves with the organization.189 The Bush Administration commenced a
White House-based Future of Iraq Project in early 2002 and staffed the project with
defectors who adopted proposed economic, social, and government reforms for a postinvasion Iraq.190
The Bush White House formed an Office of Global Communication (OGC)
several months before the war, which was constituted with a purported goal of countering
Taliban lies in Afghanistan (although the Taliban had long been overthrown), but instead,
began to focus attention on Iraq and included work product from Iraqi defectors and
public relations firms.191 The OGC spearheaded operations of PR firms, introduced daily
186
BOB WOODWARD, PLAN OF ATTACK 3-4, 30-31, 34-37, 40, 42, 55-59, 75-79, 96-103, 120-25, 129-30,
137, 157-59, 188 (2004).
187
Bejesky, Politico, supra note 22, at 62-70.
188
Id. at 62-66; RICHARD BONIN, ARROWS OF THE NIGHT: AHMAD CHALABI AND THE SELLING OF THE IRAQ
WAR 198 (2011) (remarking that “Chalabi’s first defector made his public debut a month and a day after
9/11” and stated that he “had seen Islamists trained in hijacking on a Boeing 707 parked in the Salman Pak
camp.”); see supra Part II(D)(2).
189
S. REP. 109-330, at 30-31 (2006) (stating that between May and July 2002, “[t]he National Security
Council Deputies Committee decided that the [INC] program should be continued” and in late-October
2002 the Defense Intelligence Agency took responsibility over the INC); TALBOTT, supra note 176, at 353
(remarking that the Bush Administration chose to restart the flow of funds to Chalabi and the INC after the
Clinton administration had cut off funding “because Chalabi was seen as untrustworthy”); Kettle, supra
note 177 (stating that Bush’s first order to increase INC funding was in February 2001).
190
Bejesky, Geopolitics, supra note 63, at 215-19.
191
Tucker A. Eskew, Director, White House Office of Global Communications, Foreign Press Center
Briefing (Jan. 24, 2003), available at http://2002-2009-fpc.state.gov/16852.htm (remarking that the
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DEFECTORS AND THE MORAL HAZARD PROBLEM
50
talking points for the President and other top officials, coached dissidents on how to
appear convincing in the mass media, and flooded the media with the White House’s
message.192 It was not just PR firms that coached defectors, but defectors also initiated
information on their own; former senior CIA official Vincent Cannistraro stated that the
INC made “no distinction between intelligence and propaganda,” defectors parroted what
Chalabi wanted them to say, and Chalabi’s “crooked information... [went] right into
presidential and vice-presidential speeches.”193 Hence, American taxpayers paid over
$100 million to the INC over twelve years and $200 million for the OGC,194 and did so
with the ultimate consequence of being politically manipulated to accept the Iraq War.
2. Summoning Defectors
The Bush Administration also actively encouraged defectors to impart their
president had signed an executive order creating the new Office of Global Communications three days
earlier and that the intent behind the creation of the office was to address what was learned in defending
against “a great many lies from the Taliban” in Afghanistan). The Taliban had been overthrown and
ironically the program was designed right before the Iraq War began and it started to focus on Iraq. TODD
A. DAVIS, THE GLOBAL WAR ON TERROR 40 (2008) (“The Office of Global Communications was a public
relations project implemented by Karen Hughes. Charlotte Beers was also another ad agency executive who
was brought into the State Department in 2001 to help create a more positive image of US foreign
policy...”); PAUL RUTHERFORD, WEAPONS OF MASS PERSUASION: MARKING THE WAR AGAINST IRAQ 61-62
(2004) (remarking that Karen Hughes “coordinated the public-relations strategy of the whole government,
ensuring that it would speak as one voice on the issue of Iraq”); Peter van Ham, War, Lies, and Videotape:
Public Diplomacy and the USA’s War on Terrorism, 34 SECURITY DIALOG 427, 435-36 (2003), available
at http://www.sagepub.com/martin3study/articles/vanHam.pdf (stating that the OGC was part of a $200
million spending program to persuade audiences that Saddam Hussein needed to be targeted). The INC had
been providing information directly to US government agencies and seven of the fifteen Senators on the
SSCI believed that the false information given directly to the Bush Administration should have been
examined in addition to the information provided to the IC. See S. REP. 109-330, at 187 (2006) (stating that
defectors provided reports to government officials and the western media, including through the INC
newspaper (Al Mutamar)).
192
GRANDIN, supra note 58, at 229; see also RAMPTON & STAUBER, supra note 58, at 38 (stating that
advertising techniques were used to persuade audiences that Iraq needed to be attacked).
193
BAMFORD, supra note 75, at 294.
194
153 CONG. REC. S1366 (Jan. 17, 2007) (statement of Senator Brownback) (“I helped get the initial $100
million for the Iraqi National Congress”); GRANDIN, supra note 58, at 228 (remarking that the CIA and
Pentagon provided hundreds of millions to the Rendon Group); RAMPTON & STAUBER, supra note 58, at 38
(stating that the Times of London reported that $200 million had been earmarked for the OGC to market the
war against Iraq).
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accounts to the IC after the Administration initiated agenda setting in the media and
before the IC’s essential National Intelligence Estimate (NIE) was produced. After
spending a year inspecting the underlying intelligence reports to assess how the NIE
could have included such extreme and incorrect claims about WMDs in Iraq, the SSCI
consistently determined on each allegation that NIE claims were not supported by
existing intelligence data,195 and it also ascertained that the IC possessed no “direct”
evidence of prohibited weapon programs in Iraq.196 Nonetheless, IC estimates drastically
shifted, which could mean that anteceding rhetoric and publication of unsubstantiated
allegations may have hidden the fact that the evidentiary foundation was ultimately
lacking. The SSCI investigation accentuated that the American IC was virtually entirely
dependent on United Nations inspection teams for intelligence sources during the 1990s
and did not possess sources after UN inspections ceased.197 UN inspectors did not possess
evidence indicating that Iraq had not been disarmed of prohibited weapons after
inspections ceased in 1998, and affirmed to the Security Council during the four months
of inspections immediately preceding the 2003 invasion that they still could not locate
evidence indicating that prohibited weapons existed in Iraq.198
Hence, perhaps the key moments that infixed a trend of false public perceptions
were when defector claims were made directly to the media in the months following
9/11199 and when the Bush administration began to fill the global media with allegations
about weapons programs and peril from Iraq in early September 2002, particularly in
SENATE SELECT COMMITTEE ON INTELLIGENCE, POSTWAR FINDINGS ABOUT IRAQ’S WMD PROGRAMS
AND LINKS TO TERRORISM AND HOW THEY COMPARE WITH PREWAR ASSESSMENTS 20-22, 25, 52-59, S.
REP. 109-331 (2006) (discussing nuclear weapon program claims and underlying data leading to those
195
claims and remarking that NIE allegations were not supported by intelligence or post-war inspection
findings); S. REP. NO. 108-301, at 129, 187, 194 (2004) (noting how nuclear, biological, and chemical
weapon allegations were not supported by the intelligence); Bejesky, Politico, supra note 22, at 70
(categorizing SSCI explanations for NIE assessments not being supported by the existing intelligence).
196
S. REP. NO. 108-301, at 417 (2004); Bejesky, Weapon Inspections, supra note 18, at 330-31.
197
S. REP. NO. 108-301, at 24-25, 258-61 (2004) (mentioning that there was no “sufficient unilateral
HUMINT collection effort targeting Iraq” after 1998 and that sources were lacking through 2001);
RICHARD L. RUSSELL, SHARPENING STRATEGIC INTELLIGENCE: WHY THE CIA GETS IT WRONG AND WHAT
NEEDS TO BE DONE TO GET IT RIGHT 99 (2007) (stating that the CIA had no assets inside Iraq after 1998
and there was no urgency to have sources).
198
Bejesky, Weapon Inspections, supra note 18, at 302-03, 328-34.
199
See supra Part II(D)(2).
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DEFECTORS AND THE MORAL HAZARD PROBLEM
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Bush’s address to the United Nations General Assembly.200 This early-fall 2002 period,
following the UN address, resulted in more Iraqi defectors, in the words of the SSCI,
“showing up at Western embassies claiming they had information on Saddam’s
WMDs.”201 Three weeks after Bush’s UN address, the NIE was produced, and shortly
thereafter the DIA took control over the INC operations and restricted it from directly
publicizing allegations.202 Despite the knowledge that there was a need to be wary about
the self-interested claims of INC defectors, IC information collectors, analysts, and
supervisors frequently still assumed defectors were telling the truth.203 Consequently, this
particular strain of intelligence information flow involved intelligence officials accepting
data from defectors, analysts producing ultimately false accounts in reports, and the Bush
Administration accepting reports and often declassifying estimates to produce allegations
for the public.204
CONCLUSION
The use of military force should be a policy that is consistent with American
public will and informed assent from the UN Security Council. This article discussed
V.
200
Bejesky, Weapon Inspections, supra note 18, at 303-19; Charles Lewis & Mark Reading-Smith, False
Pretenses,
CTR.
FOR
PUB.
INTEGRITY
(Jan.
23,
2008),
http://www.publicintegrity.org/2008/01/23/5641/false-pretenses (specifying a major spike in false
statements in August 2002).
201
S. REP. NO. 108-301, at 262-63 (2004) (explaining that there was a dramatic increase in the HUMINT
information collection activities starting in late summer 2002 and continuing until the March 2003 invasion
and this breakdown in particular intervals should be viewed from the perspective of the fact that the CIA’s
Joint Task Force on Iraq activities began in the fall of 2001).
202
S. REP. 109-330, at 30-31 (2006).
203
S. REP. NO. 108-301, at 21, 23-24 (2004) (noting that there was also an existing assumption among IC
information collectors that sources denying the existence of prohibited weapons programs in Iraq were
lying or unaware of activities, but that those sources who maintained that weapons programs continued did
possess valuable information, and remarking that supervisors did not question these assumptions); David
Kay, Let’s Not Make the Same Mistake in Iran, WASH. POST, Feb. 7, 2005, at A21, available at
http://www.washingtonpost.com/wp-dyn/articles/A3601-2005Feb6.html (former Iraqi Survey Group (ISG)
head writing about defectors and their agendas: “dissidents and exiles have their own agenda—regime
change,” and one must be critical before accepting what they say “as truth” and “evidence.”).
204
See generally S. REP. 109-330 (2006); Bejesky, Intelligence Information, supra note 5, at 877-82; Lewis
& Reading-Smith, supra note 200.
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how security threat perceptions can be goaded by the accounts of interest groups and
defector witnesses. Highly emotive reports of interested foreign witnesses seemed
relevant to the authorization for the 1991 Gulf War, were essential to the 2003 invasion
of Iraq, and might be pertinent to current foreign policy events, such as Syrian defectors
and their claims about President Bashar al-Assad’s chemical weapon attacks and other
atrocities against the Syrian people (much of which was later confirmed).205 To assess the
context of Executive-Defector interactions preceding the 2003 Iraq War, a game theory
interaction was employed to structure actor knowledge, preferences, payoffs, and rational
choices to depict the strategic decision-making process and to forecast expected
outcomes.
The first analysis assumed non-cooperative assumptions in that the governmentagent would ideally act to represent the desires of the populace-principal, recognize that
defectors were self-interested, and scrutinize defector data for authenticity. The
inequality, Bn + PwTc > (1 – Pw)(F0), emphasized that defectors would offer data, based
on degrees of accuracy, when it was perceived that the domestic populace would
recognize a security benefit by preemptively attacking the foe and that the personal
benefits of replacing that foreign government are greater than the risk and cost of being
punished by the government accepting that data if the data are ultimately false. Both the
defector and the government theoretically face costs if defector accounts are false. Based
on this equation, if there is no perceived punishment (F0) or deterrent for providing false
accounts, no effective examination of defector data, and no availing incentive for an
administration to certify that defector-witnesses only offer knowingly accurate accounts,
defectors may not be judicious in providing accurate data because of the moral hazard
problem. If false data are used as a foundation for a war powers action, it is unlikely that
informed populace preferences will be the basis for the Executive’s choice to use force.
Moreover, the history of relations between the INC and U.S. government and its specific
interactions with the George W. Bush administration prior to the 2003 Iraq War may
make the assumptions of the underlying non-cooperative interaction unrealistic. In fact, it
205
Joby Warrick, More Than 1,400 Killed in Syrian Chemical Weapons Attack, U.S. Says, WASH. POST
(Aug. 30, 2013), http://articles.washingtonpost.com/2013-08-30/world/41606663_1_obama-administrationu-s-intelligence-analysts-syrian-government; UN Panel Draws Up Syria Crimes Against Humanity List,
BBC (Feb. 12, 2012), http://www.bbc.co.uk/news/world-middle-east-17138512.
2015]
DEFECTORS AND THE MORAL HAZARD PROBLEM
54
may be more reasonable to assume that defectors were being used by the Bush
Administration.
Even though the INC was occasionally criticized, there was a long-term
relationship between the INC and U.S. government from the time of President George
H.W. Bush’s covert order to create the conditions to displace the Iraqi regime after the
1991 Gulf War.206 This was also not a policy to which the American public or the
international community directly or indirectly assented even though the initiative likely
structured future perceptions. The George W. Bush White House did not evince much
skepticism toward the INC before the 2003 invasion, but instead, genially interacted with
defectors, generally accepted defector claims uncritically, reported stories with identified
or anonymous defector sources,207 and utilized executive control over the information in
the national security apparatus to publicize threats.208 Much evidence suggests that prewar interactions between the Bush Administration and the INC were cooperative and
involved analogous goals, due to the Bush Administration’s preference of displacing the
Iraqi government.209
The ultimate result was that the INC experienced a temporary loss of credibility,
there was no punishment of defectors for providing false information, and the
Administration and defectors, while hurling accusations at each other, treated fraudulent
206
Miller, supra note 74; Mayer, supra note 12.
Bejesky, Flow, supra note 109, at 460-65 (noting that the media receptively published Iraqi defector
claims for ten years and especially in the months prior to the invasion); see supra Part II(G)(1).
208
Honorable J. Dennis Hastert, OFFICE OF THE ATTORNEY GEN., Report to Congress, at 2, transmitted on
Oct. 15, 2002, http://www.justice.gov/ag/readingroom/letter_house.pdf (noting the Executive’s prerogative
to select what will become a national security secret and to set parameters for classification); Mary-Rose
Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83 IND.
L.J. 233, 240 (2008) (remarking that it is the Executive’s virtually unrestricted authority to control national
security information that serves as the President “principal method of information control”); Bejesky, Flow,
supra note 109, at 402-20 (providing examples of the control over the national security classification
system during the Bush Administration, including as a means of disseminating unsubstantiated data and
manipulating American public opinion); The Bush administration exercised significant control over that
system. Mark Silva, Cheney Won’t Tell How Much He Keeps Secret, CHICAGO TRIBUNE (Apr. 30, 2006),
http://seattletimes.nwsource.com/html/nationworld/2002962226_cheney30.html (reporting that the Bush
administration overwhelming increased the number of documents classified as either “top secret,” “secret,”
or “confidential” in comparison to all preceding administrations in American history).
209
See supra Part II(G).
207
55
WILLIAM & MARY POLICY REVIEW
[VO1. 6:2
claims as harmless error. In 2008 when President Bush’s approval ratings dropped to near
the lowest presidential approval ratings in history, which was foremost due to the Iraq
War, the outgoing President stated that the “biggest regret of his presidency was the
‘intelligence failure’ regarding the extent of Saddam’s threat to the United States.”210
From the perspective of a cooperative interaction, which is not unrealistic, or even from
the perspective of a non-cooperative interaction (with an assessment of whether it would
be reasonable to accept defector claims without verification), this statement seems at best
disingenuous and at worst fraudulent.
***
210
Stephen Ohlemacher, Rice Regrets Bad Intelligence; Defends War, ASSOC. PRESS (Dec. 7, 2008),
available at http://www.foxnews.com/printer_friendly_wires/2008Dec07/0,4675, Rice,00.html.