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Tuesday, December 20, 2005

Case Study: Failure of checks and balances -- Powell and the WMD data

Powell as Secretary of State was in a position to ask for other views. The evidence before us suggests Powell was experienced in the myriad of intelligence products, and was well known for considering other views.

The issue isn't simply that Powell didn't ask for these others views -- Powell was taking on the functions of all three branches of government.

Powell's conduct in re the Iraq WMD is a classic example of what happens when checks and balances are undermined: Reckless results devoid of factual and legal foundation.

* * *

Powell is reported to have said that he wished he’d had other details about the WMD issues.

The BBC reports Powell expressed his:
disappointment with the failings of US intelligence on IraqRef

Powell's statement is problematic.

Powell is familiar with the range of intelligence products, and fails to demonstrate he was specifically denied access to information.

We judge Powell’s statement will be used to shift attention from the White House to the intelligence community. Adverse analyst information in re WMD was available, but not in sufficient volume to offset the pre-determined White House outcome: Remove Saddam from power through any means, including illegal military invasion.

The issue wasn’t that the “other views” didn’t exist; but that “other views contrary to the White House” were deemed irrelevant, contrary to the stated objective: Remove Saddam, regardless the legal or factual realities.

* * *

Powell appears to be in denial about the WMD-Iraq situation. The issue isn’t whether “more information” would have changed the result.

Rather, it appears the opposite – regardless what amount of additional information Powell reviewed – the decision and result would have been the same.

Notice, implicit in Powell’s statement is the assumption that “the data” and “the analysts” were the source of the “ineffective or less than optimal result.”

Arianna Huffington well describes Miller’s characterization of the problems – Miller fails to embrace her direct role. Rather than explicitly saying, “My news reports were bogus,” Arianna well characterizes Miller’s denial in terms of, “It wasn’t me that screwed up, but it was the nebulous news reports that were in error.”

Powell’s statement is the same as what Huffington refers to when discussing Judith Miller’s reference to herself – rather than embrace the problem with Powell’s failed analysis, Powell is doing what Miller has done – refer to the process as if it were some benign, disconnect, and “not what I did”-type of process.

Regardless the denial by either Powell or Miller, what we do know is the intelligence was not incorrect. Rather, the leadership was incorrect.

What as problematic was how the information were couched in advance of, and absent, the vigorous Congressional debate based on facts.

* * *

Bluntly, Powell was at the center of the review: It was his job to review, verify, and then present that information to the UN Security Council. Powell’s statement is best viewed in Constitutional terms: What happens when the executive corrupts the system of checks and balances. Ideally, during war time, Congress makes a decision based on debate; then the Executive wages war.

Powell’s statement is at odds with reasonableness. Powell is familiar with intelligence products, has a reputation for consideration all views; is aware of the importance of information fro Congress; and has experience acting as an information screener.

On all counts, Powell failed.

The problem we have over Iraq and the WMD issue: Congress failed to debate the issue based on facts and the outcome is flawed: Poor planning, defective oversight.

In re WMD information, Powell took on all three branches roles under his single hat:

  • Fact finder

  • Advocate

  • Adjudicator

    Powell failed to ensure the information was the fruit of vigorous Congressional and Judicial debate. The clash of ideas will produce sound judgments on whether the action is lawful, prudent, and based on facts.

    * * *

    In re Iraq WMD, the system of checks and balances has been corrupted in the following ways:

  • Debate hinged on weak, false, and incorrect information

  • Dissenting voices were threatened, silence, sidelined

  • Artificial, illusory, and arbitrary deadlines created

  • Success criteria and timelines were materially skewed

  • The real risks on the ground were ignored

    * * *

    Powell’s approach to the data provides important lessons about the following:

  • A. How information is judged without requisite judicial and Congressional review;

  • B. The risks of not exposing information to the challenge by Congress – through debate, using facts not made up information – and the Judicial Branch – using the adversarial approach, also premised on using factual information

  • C. The risk of outcome-oriented fact-finding

  • D. Why the catalyst real checks and balances of a real Congressional hearing -- and Executive Branch “fear” of Congressional lying – was used as a pretext to justify Executive Branch lying before the Congress.

    Powell’s statement also illustrates how Bush’s White House has

  • E. Ignored, mislead, and corrupted Congressional oversight;

  • F. Directed action without regards to the Constitutionally mandated debate function in both the Congress and Judicial Branches

  • G. Decided facts without debate -- generating inter alia flawed plans, imprudent success criteria, and shifting baselines on standards, accountability, and success.

    Bluntly, springing from Powell’s statement, when the system of checks and balances – the clash of ideas to yield as the fruit prudent use of resources – is undermined, we have what we have:

  • H. Imprudent use of national resources without lawfully-mandated review;

  • I. Assertions, without credible foundation, that the single branch of government is to be trusted, despite the vacuum of information and evidence to the contrary – Abu Ghraib, rendition, Guantanamo, DIA domestic spying;

  • J. Repeated assertions, public statements, and speeches that are contrary to the facts, not credible as an argument, and are internally inconsistent – all signs that the plans, policies, and results to date are not simply flawed but contrary to public policy.

    * * *

    Powell asserts he wished he’d had full access to the other views. However, this statement is not consistent with Powell’s background.

    Powell’s background as Chairman of the Joint Chiefs of Staff was, in part, flavored by the Iran-Contra affair, where Powell testified to House Counsel John Saba: “We just accepted them as facts provided by DSAA.” [Means, p. 206]

    We judge here were other facts, but these were ignored or not effectively showcased. Curiously, this is at odds with Powell’s reputation and experience: As someone who is an honest broker, ensuring all sides get heard.

    However, this is no match for a White House ensuring one result prevailed.

    * * *

    Powell had the experience to know that other views existed; that the system had systemic problems in it; and that there were a range of intelligence products.

    It wasn’t as if Powell was unfamiliar with the complexities, nuances, and range of intelligence products: As Chairman JCS Powell reviewed several hundred intelligence products a day.

    As Chairman of JCS. Powell knew well that some analysts are good, others are bad. The issue is: Despite him knowing the range of analysis that was possible, did he effectively – as it appears he did not – seek other views.

    The game: He didn’t ask; they didn’t tell. Leaders find out, whether someone gives them the information or not – they find out.

    * * *

    Pat Towell, as reported in Howard Means’ Colin Powell: A Biography reports that Powell was well aware of the Congress’ right to know. [p. 238]

    Yet, it remains unclear why Powell, despite the asserted interest in ensuring Congress was informed, would not take the time or interest in independently asking for the information he knew, or should have known, Congress would ultimately ask for.

    * * *

    Powell has a reputation for assessing incoming information. Fred Malek said Powell screened things for him at OMB [Means, p. 159]

    The issues:

  • Which of Powell’s skills at OMB were not effectively used at State; and

  • Did Powell trust the system to be as good as a staffer as he was: Check information

    We judge Powell did screen the WMD information, but he failed to aggressively challenge the volume of technical conclusions: Truth is not affirmed by yelling louder or with more conviction.

    * * *

    Powell has shown he can incorporate other views. Michael Pillsbury, [Asst Under Secretary of Defense for Policy Planning, 1984-86] sated Powell had a reputation for ensuring all points of view had a fair hearing. [Means p. 191]

    When other views are needed, Powell is known to find arguments that will support Presidential policy. For example, despite opposition to providing the Afghan rebels Stinger missiles, it was Powell who invited other views summarizing the Soviet Acquisition of Stingers from Greece, thereby making the risk of Soviet Acquisition of Afghan missiles no relative advantage.

    With respect to Iraq’s WMD, it appears Powell was unable to take the opposing role: That of an advocate for the opposition, or putting pressure on the White House to justify the reasons for inaction.

    Again, the issue appears Powell’s reputation as “honest broker” was at odds with a White House more interested in waging war than honestly brokering.

    More broadly, Powell could not have been expected to have taken on the role of all three branches of government. Yet, the results show us just this – Powell’s approach, and Congress assented to, was essentially an accelerated-approach which all three branches should have carefully reviewed.

    The results are self-evident. When a single leader, staffer, or agency head attempts to take on the role of all three branches, the information – and basis for estimates -- is not reliable; the plans are not credible, and the timelines are based on illusory deadlines.

    When a single person takes on the functions of all three branches, they run the risk of – and actually do – move far more quickly than is prudent.

    If we contrast the fast-approach with tyranny, and contrast it with the system of checks and balances – and more bluntly the deliberate speed bumps in the Bill of Rights – we can see how consolidated power will accelerate timelines, rush reviews, and drive to outcomes which are not simply imprudent, but rash and wrong.

    The Bill of Rights exists to slow the pace of law enforcement, ensure that the government actions are based on facts and reality, and that there is careful consideration given to the information, facts, and subsequent results.

    Powell’s approach – by taking on the role of all three branches – was rushed, failed to ensure the information was aggressively challenged, and in doing so, resulted in an outcome that was not simply flawed, but devoid of reality: We have no WMD.

    This is not an outcome that Powell can credibly claim to be “one that would have changed had he had more information.” Rather, the evidence before us in re Powell’s approach and way of reviewing matters suggests the contrary: The outcome was already decided. Powell simply existed as verbal armor – to get the Security Council to buy into his presentation of the “facts,” regardless the validity of those “facts.”

    * * *

    Let’s review the detailed information which leads us to this conclusion.

    First, we begin with an overview of anecdotes shedding light on Powell’s approach to information.

    Second, we review how these habits were or were not applied with WMD.

    Third, we show how the pre-determined outcome, regardless what Powell did or didn’t do, was already written.

    * * *

    It’s important to review Powell’s philosophy on decisions, information, and adversary. These points show how his personal philosophy contrasts with the three branches of government.

    The purpose of reviewing these points is to show that Powell’s’ actions – essentially taking on the role of all three branches – was at odds with his personal approaches.

    In turn, this analysis shows that, regardless whether Powell did get more information, the outcome would not have changed.

    Let’s review the specific Powell philosophies. Powell has a list of points which are most curious in light of the WMD issue:

  • 6. “Don’t let adverse facts get in the way of a good decision.” –This rule incorrectly presumes that a decision – once it is made, is good – and that contrary facts must be ignored. This is not how a debate works.

  • 12. “Don’t take counsel of your fears or naysayers.” – No surprise why the RNC protestors and “other views’ were ignored. An adjudicator in the judicial branch always considers the opposing view – the adversarial system ensures that the best arguments for both sides clash. Powell’s approach is the opposite – ignore them – and doomed to fail in the Iraq WMD issue.

  • 13. “Perpetual optimism is a force multiplier” – Even if optimism builds so much momentum that the White House uses circular reasoning – “Everyone is saying it – we make sure they parrot the desired outcome – so it must be true.” Again, this is a fundamental logic flaw which any competent adjudicator would identify as a logical fallacy – mass appeal or mob appeal is irrelevant. More persuasive is whether the facts and evidence are more compelling, regardless whether the public can be convinced in mass numbers to agree. A proper judicial review is subject to the review of one adjudicator – what the mass of less informed, and less competent public view is irrelevant. The law is based on logic, prudence, and simple rules of reason.

    Powell’s objective was to circumvent the rules of reason, and appeal to the masses by painting pictures of doom. A competent adjudicator would have compelled the government to have provided far higher burdens of proof. Indeed, there is a long list of questions which, no matter how you answer them, rely on more non-sense as their foundation.

    The arguments supporting the WMD issues before the UN Security Council hinged on non-sense, and did not survive simple questions. Powell, in taking on all three roles, ensured the questions were sidelined.

  • 8. “Check small things” – What happened, Colin? An adjudicator would have checked; but Powell didn’t, and couldn’t have, been expected to have independently performed this function.

  • “It isn’t as bad as you think – it will look better in the morning.” – If this is true, why is Colin worried in 2005 whether the outcome – no WMD -- is at odds with the White House decision?

  • “Avoid having your ego so close to your position that when your position goes your ego goes with it.” – Looks like Colin, despite this wise advice, is stuck on a decision he made almost three years ago – to trumpet a decision without really digging into the material or looking at adverse opinions.

    The problem we have with the Powell approach is that Powell as an executive agent was already linked to an outcome – go to war – regardless whether there were legitimate questions or unanswered issues.

    The objective of the meeting was to confirm a pre-determined outcome – not solicit feedback. Self-evidently, the small US coalition and limited international support showed the international consensus didn’t exist, and was not persuaded given the many facts.

    This is contrary to a system of checks and balances – whereby Congress would consider the financial issues linked with that dubious information; and the court would review the legality of that action. In theory, this should have happened before the approval occurred, and hinged on an open and full debate: Where reasonable questions were raised.

    The core benefit of checks and balances – to delay action, review the issues, and ensure the action is lawful – is exactly what was needed in the Iraq WMD issue:

  • To answer questions

  • Verify the basis for the decisions was factual

  • Ensure the information was credible

  • Use the challenge of other views as a catalyst to find the truth

  • Ensure the proposed plan was prudent

  • Verify that the non-military options had been exhausted

  • Validate the proposed option – relative to the validated issues, risks, and evidence -- was lawful

  • That the necessity for action hinged on an imminent threat

    These steps are no different than the careful review – in theory – a law firm takes before taking on a case; or before a CEO approves a decision to acquire an external asset.

    However, in recent years, the focus has not been on ensuring completeness, but in arriving at the result – regardless the means:

  • A flawed CEO will buy an asset regardless the internal cashflow problems; and

  • A flawed practice partner will assert to a client the legal issues, without carefully reviewing for the client the legal risks or clients’ particular situation.

    What is the American approach to these problems with government and the fiduciaries? It’s not to raise the standard, but to create a shield to accountability:

  • Preventing the public to bring claims for relief;

  • Hiding information needed to prevail in the court of law; and

  • Suppressing the facts on the basis of “national security”

    The truth is:

  • The only catalyst for action is oversight and a credible threat of consequences;

  • The only remedy for defective governance is a lawsuit or lawful loss of power;

  • The only effective government oversight exists when the people take action to mandate that government comply with the rule of law.

    In the end, as Chief Justice Roberts stated during his confirmation hearings, the adversarial system will ensure the court can get it right: In the end, after you work with it long enough, you can make the right decision.

    In the case of Powell and the WMD data, the issue was not whether the information was right, but whether the outcome – a presentation before the UN Security council – generated the desired support.

    We now know, as we learn from the UN inspectors, that regardless the facts or outcome, the decision to go to war had already been made – just as the decision to “make the inspections fail.”

    This is no different than the Downing Street Memo – attaching information –regardless the merits of that evidence – to a legal argument, regardless the flaws in the foundation of that legal argument.

    One cannot credibly claim their actions are in the “interest of national security” when that conduct undermines and destroys the foundation known as the rule of law.

    A leader who fails to assent to the rule of law cannot mandate that a free citizenry trust him or support him. Rather, the citizenry, with full knowledge of the threat of this leader, must mandate that the rule of law be imposed on the leader.

    * * *

    Powell’s statement is problematic. Intelligence analysts questioned the veracity of limited sources.

    We judge Powell as Secretary of State didn’t look for and seriously use opposing views to throw out the information supporting war.

    It remains to be understood:

  • What specific information did Powell ask for

  • What was the basis for the estimate

  • What types of responses did he get

  • What sources did Powell consult

  • What open, public, classified, or independent sources did Powell not consider or use

  • What questions and issues were never answered

    * * *

    The objective Powell’s UN Security Council briefing wasn’t to suggest that the views were unclear – but the contrary, that the case was overwhelming.

    Yet, before the war started, analysts raised substantive questions about the merits of the claims – the concerns only ignored with glib responses.

    Bluntly, the sourcing for the entire WMD presentation to the Security Council was problematic. The presentation before the Security Council was designed to rely on Powell’s standing in the public eye as a man of integrity, and little to provide a fair and balanced picture.

    We judge Powell’s statements about his “desire to have other views” as unpersuasive; linked more with a failing White House effort to blame the intelligence community.

    We judge even if Powell did have access to “the other views” or “contrary information” – as he unconvincingly argues he did not have – it is unlikely Powell would have effectively factored that information; nor would the decision to go to war have been different.

    * * *

    It is most likely the case for war was asserted without regard to facts. Rather the facts were attached the legal arguments defending the basis for war – however, these legal arguments were premised on having the campaign unchallenged on both the political and literal battlefields.

    The legal arguments were not provided with the expectation that they clash with opposing views – and the fruit of that clash would be truth. In short, the internal debate failed to yield truth – most likely as a result of a foregone decision to take action, regardless the facts.

    * * *

    Can someone who has performed well in one role – as a military leader -- perform well in another – as an executive performing the role of all three branches before the UN?

    The tasks are different and the answer depends on who the real customer is. Powell as Secretary of State was wearing a different hat than as Chairman of the Joint Chiefs of Staff.

    Once the President makes a decision to go to war, the Chairman’s job was to figure out how to do it. As Chairman, the issue isn’t to sell the war, or find other views – but to provide advice on how to achieve a successful result. It is another matter whether the original decision, albeit a political one, is flawed; or whether the leadership does or does not listen to the information.

    As Secretary of State, Powell’s job was to plan diplomatic actions – something the White House was using only as stepping stone to a pre-determined military solution.

    * * *

    It appears the State Department Plans, despite White House statements to the contrary, were effectively planned with the worst case situation in mind. However, the issue was the President and Secretary of Defense ignored the risks and made a success-oriented decision: Minimal troops needed for an invasion largely expected to be greeted with open arms.

    We judge the adverse views were available to Powell. The problem was the White House [a] overrode these other views; [b] dismissed them; and [c] intended to take action regardless the other views.

    We judge the Senate Phase II investigation is a red herring – designed to focus Senate attention – or inattention, as is the case – on things other than the White House.

    * * *

    Powell had a reputation for being an honest broker and didn’t put his own twist on things. The only way one can “provide a reasonable view” of any situation is to look at all sides. Yet, Powell does not have the resources or education to competently perform the task of all 535 Congressional representatives, plus three courts of judicial review.

    Powell was well aware of the range of intelligence products. There is no reason Powell would not know that other views would reasonably have existed. The issue isn’t whether Powell did or didn’t have access to the range of views; the issue is how the public and Congress specifically would assent to a single Executive agent performing the functions of all three branches of government, and still expecting there to be a prudent result.

    More broadly, the issue is why, despite the other views, Powell appears to have [a] sided with information largely fabricated; or [b] let the unfavorable reasons for war get overshadowed by the fiction.

    It appears he took a consensus view of the information, on the assumption the information was valid; not on the assumption that it was raw intelligence, and needed to be examined, questioned, and verified – then challenged with opposing views.

    It appears Powell relied on the volume of the data – more data means [a] more consensus leaning in that direction; rather than [b] improved veracity of that data, however scant the opposing views were.

    Military personnel who rely on consensus -- not the clash of ideas as we see before the court of law – have a hard time with politics: It hinges on adversarial debate – something military personnel take personally and view as an exhaustive waste of time, despite pretending it’s “just business.”

    But don’t be fooled: Internally, the military is all about politics. It’s based on the same games. They just pretend it is something else -- something that will end “when we all retire.” However, it doesn’t change.

    Powell was a natural military-politician. But naturals suffer from a fatal flaw – they have a harder time learning the rules of new games, or recognizing how familiar playing fields need to be approached in different ways as one takes on a new role.

    It appears Powell didn’t necessarily know “how to learn the rules” of the new game he was playing – that of Secretary of State, wearing a new hat, largely shaped by the White House not facts.

    * * *

    Powell asserts he carefully reviewed the information.

    However, we have yet to have a good accounting of which specific negative analysts reports were not reviewed; or how these other views were either ignored, not provided, or explained away with favorable – albeit fabricated – information.

  • Why would Powell not apply his lessons as Joint Chiefs of Staff to question the data?

    Bluntly, he assumed the data was bonafide, and used each piece of information as true. This is contrary to how an adjudicator – something Powell is not legally qualified to perform – would have approached the issue.

    At first blush, it appears as though Powell was not open to opposite views, and did not question the veracity of the favorable views. Rather, he was more inclined to seek a consensus view of what the favorable arguments were; not in questioning the veracity of the favorable view, or in giving the adverse opinions equal weight.

    However, Powell is reported to have spent considerable time on the briefing.

    We judge Powell, was more interested in getting a clear, clean picture of the favorable data supporting the already-decided war. The issue, in Powell’s mind, wasn’t whether the information was true or not; but how to best accommodate the views into a concise picture which the UN Security Council would understand.

  • The White House used Powell’s stature to suggest that the intelligence community failed.

    However, the White House and Powell failed to independently test the information; and arrive at conclusions contrary to the original decision – invade Iraq.

    We judge Powell is good at summarizing vast volumes of data; he is not as adept at independently looking at discrete information with an eye to questioning its veracity. The information products were accepted as credible, and not aggressively challenged with

    We judge the information-veracity-credibility-tests were based on the volume of favorable sources, not on reliable and accurate sources.

    * * *

    One may have a political view of who to trust or not trust. The issue when it comes to matters of criminal law is simply facts, arguments, and the law. Self-evidently, the WMD doesn’t exist in the amounts Powell asserted before the UN; and the arguments for war are at odds with the laws of war.

    There was on interest in finding the facts. The goal was to present the information in a format that would generate support for a pre-determined outcome: Invasion. When the UN was unpersuaded, the US asserted the other members of the Security Council were the problem. We judge this fails to pass the burden which Congress and the Judicial branch would have set. Rather than meet these tests, the country assented to ignoring them.

    Vietnam started with a lie and ended with a lie. Just as we saw with their handling of the 1975 shipping accident off Vietnam, you can spin a story, but you can’t change facts. Even 30 years later. These guys are screw ups. It’s amazing they haven’t started a nuclear war over a minor ego-related issue. Then again, there’s always Iran and Syria to prove me wrong.

    Powell – as has the Administration more generally -- appears to have focused on information with little concern whether that information would pass the Congressional or Judicial branch tests for facts. We need not consider whether that information – devoid of factual basis -- was credibly presented, argued, or meet the standards required to justify lawful action. Action devoid of facts, self-evidently, is not lawful but reckless.

    * * *

    Added: 10 Jan 2006

    Powell missed his chance, "Colin Powell, Liar Extraordinaire" By David Swanson.

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