Retired military officers are reported to have provided misleading information to the Congress and public about Iraq in exchange for favorable contract awards. It remains unclear how many contracts linked with these retired military officers were awarded in exchange for deceptive statements to Congress and voters on Iraq.

However, that is only part of the problem. The larger issue is why this deception and alleged contract fraud has not been adequately mitigated or investigated. It is our view that the President and DoD officials have worked hand in glove since 2002 with DoJ OLC to block prosecutions and investigations of this alleged contract fraud.

White House Exploited Retired Military Officers’ Favorable Reputation

Something needs to change to ensure the United State government does not abuse American civilians’ trust of retired military officers. Officers are alleged to have spread misleading statements to voters and the Congress. Where retired military officers aer working for contractors that win US government contracts.

Congress has the Article 1 Section 8 power to make rules related to military personnel. Congress has a Constitutional obligation to find what these retired military officers are doing, how they have abused their retired status to deceive the public, and understand how military officers have engaged in contract fraud during wartime.

The scope of the alleged fraud is not well understood. It’s unclear whether the auditors adequately increased audit scope at the publicly traded firms when they knew, or should have known of this conflict of interest. Did the scope of the alleged fraud timely get reviewed by audit committees and outside auditors working for these DoD contractors; and were any audit findings related to alleged fraud in re Iraq contracts get suppressed no the grounds of national security?

It’s unclear what information from Iraq led to which alleged contract frauds. The public needs an understanding of the scope of the DoD disinformation. The public needs to digest the public statements of former military officers, and challenge these officers for their alleged fraud, misstatements, and misleading information. It would be preferable if the officers voluntarily disclosed and provided corrections to their statements.

Congressional Oversight Required

DoD is reported to have suppressed in Iraq independent media, and replaced the information with misleading information. It remains unclear why independent Congressional investigations did not adequately identify these misleading statements from retired military officers. It is a concern contracts have been expedited on deceptive information. It’s reasonable to expect Members of Congress when they visited Iraq to have learned new information which did not reconcile with the former military officers’ public statements.

Recall, with the FISA violations and alleged telecom complicity, the public later learned Congress was briefed on some parts of the program. We need a public accounting to understand whether Members of Congress were selectively told portions of these arrangements with former military officials, and what Members of Congress may have been told to not review this deceptive information since 2002.

The public needs an estimate of how log it will take to review the DoD contracts in Iraq, identify which contracts were awarded related to incorrect or misleading statements from military officers, and which conflicts of interests exist. At the same time, the public needs an explanation why nothing has been done since 2002 to mitigate this risk, and why the FBI and US Prosecutors have not worked with a grand jury to investigate and prosecute. It appears the President gave a green light to questionable behavior, and a red light for enforcement of the laws. This is no different than the Geneva and FISA violations.

Where contracts were awarded based on fraud, the public should reasonably expect give-backs to the US Treasury, and treble damages. We need a discussion of why the current bounty program – offering substantial financial incentives to report fraud – did not disclose this activity earlier.

One solution would be to have an independent security and force protection unit permanently assigned to the Congress. This unit would provide direct combat support to Members of Congress so they can conduct independent fact finding in combat zones. Congress has the power to raise and support armies; and Congress is not obliged to depend on the President or Executive Branch to gain access to combat zones.

Once military personnel retire and leave active duty, they are permitted to continue using their rank. Congress needs to explore which new rules are required to communicate to former and retired military personnel what legal sanctions may be imposed for abuse of that special connection with the Department of Defense. Certain privileges afforded to retired and former military personnel could be revoked, including stripping them of various benefits including access to military bases, travel on military aircraft, or privileges. Retired and former military personnel convicted of contract fraud or violations of corporate governance standards could be stripped of their legal authority to continue using their rank after retirement.

Not Isolated to DoD

This problem is not isolated to contractors or the Department of Defense. Many issues dovetail, among them: The lessons of the US Attorney firing, NSA violations, corruption of the Inspector Generals, and inadequate management in Department of Defense.

The contractors alleged to be involved are publicly trade, and should have been the subject of financial audits. The firms alleged to have been complicit with these deceptions – in relying on alleged inside information, and conflicts of interest to secure contracts -- are subject to oversight in the financial reporting community using accounting standards. Because these firms are publicly trade, listed on the NYSE, the auditors since 2002 should have applied SAS 99, an auditing standard which should have increased audit scope where there were allegations of resignation, improper conduct, or other problems.

Since 2002, DoD and former military officers are alleged to have conspired to provide misleading information about Iraq in exchange for favorable contract consideration. This applies not to the contract award, but subsequent contract performance. It remains unclear what indicators the internal auditors, audit committee, and outside auditors knew about, ignored, or were not told about. One risk factor is a climate of increased fraud which auditors should have considered in light of the wartime contracting conditions, speedy contract awards, and revelations of conflicts of interests. It appears something broke down not just in the government oversight of the retired military officers, but also in how private commercial auditors were or were not influenced to fully conduct audits of these publicly traded DoD contractors.

The scope of the deception is wide. Many have explaining to do. The list includes the internal auditors at corporate boards, corporate audit committees, government oversight, financial regulators, state-level corporate governance boards, the IGs, DOJ OPR, DoJ AG and US Attorneys and prosecutors: When should they have learned of this conflict, what broke down in the risk mitigation, and why was this conflict of interest not quickly identified, managed, and prevented?

DOJ

The lessons of the US Attorney firings and NSA illegal activity must be considered. It appears some US Attorneys were thwarted from prosecuting these alleged contract frauds; and that some criminal investigators within DoD were blocked from investigating these issues, as was done with the NSA’s FISA violations. It remains to e understood to what extent the President involved the “national security” exception as a block on DoD IG and DOJ OPR from reviewing DoJ OLC coordination with DoD personnel on these alleged deceptions to Congress.

Revisiting Iraq-Related Information

There’s a large pool of information in the public domain needs to be revisited. Substantial invalid information is linked to retired military officers. They have conflicts of interest and were principal advisors of corporate offers awarded DoD contracts. We need an independent system that will ensure future Presidents, Members of Congress, DoD contractors, former US government officials, and other former military personnel do not abuse the fog of war to win contracts based on unreliable information. Congress needs to explore what wartime system of oversight and auditing is required to adequately mitigate this risk.

Until we have a vetting of this information from former military officers, it remains unclear what better information the three Presidential candidates are using, or whether they are demonstrating they have an independent, better method to gather information about the status of combat operations in Iraq. This President and the three Presidential candidates need to explain how they plan to deal with the real situation in Iraq, and wade through the disinformation.

Oversight of Retired Military Officers

Congress also has the power to make rules under Article 1 Section 8 related to former military officers and retiree conduct. Retired officers are permitted to continue using their rank. Congress needs to discuss what sanctions against former military officers should be on the table to dissuade future retirees from abusing their position of public trust. When retired military officers engage in this questionable conduct this tends to put a damper on public trust in all former military personnel. Congress, independent of DoD, should continue monitoring public attitudes toward the military as these questionable practices surface.

One solution may be to require disclosure of the former military personnel’s travel, public statements, and current assignment to government contractors. This information would help monitor media reports, sourcing of information, and potential conflicts of interest future Presidents may wish to exploit or suppress.

Framers Intent in re War Debts

Unreliable information appears to have generated support for unreasonable, if not illegal, combat plans and operations in Iraq. The planning is reported to have started before 2002, and we’re five years into the 2003 invasion. This campaign in Iraq has been expensive, and diverted limited combat forces from Afghanistan.

Partly to help ensure the public was not saddled with spiraling war debt, the Framers intended Congress to have the power of the purse and declare war. Congress was intended to have an oversight responsibility even during wartime to ensure the President effectively managed combat operations. It appears this President has exploited wartime conditions to block effective oversight of his mismanaged operations, and circumvented the intent of the Framers.

Pattern of Executive Shielding Not Limited To Combat Zones

Auditors appear to have also been thwarted from doing their jobs in the combat zones and in the DoD contracting facilities. Auditors know that they have special auditing standards that apply to firms which list their stocks on the major stock exchanges.

Congress needs to understand why the auditors were unable to independently gather and report information related to these alleged conflicts of interest. Once the conflicts were understood, Congress needs to understand whether the audit committees connected with the firms winning these favorable DoD contractors did or did not adequately increase audit scope, and appropriately cooperate with necessary oversight to mitigate this alleged contract fraud.

Congress needs to understand the lessons of the alleged telecom violations and assurances the President gave to block enforcement of FISA; then apply those lessons to how DoD contractors were or were not promised shielding from investigations, oversight, or prosecution.

Media Access

The public needs to understand why the media was prevented from gathering and reporting on this deception: Not just by the military officers, but also the subsequent audits, oversight, and prosecutions.

Until Secretary of Defense Gates openly permits the media to complete its work in Iraq, nobody in America should take seriously Gates’ assertion that dissention is a good sign of organizational health.

Breakdown of Oversight: Continued Erosion of Public Confidence

Secrecy might be justified to quickly surprise the enemy. This President has used secrecy to avoid needed oversight, and thwart understanding of his continued reckless management. A government that will not adequately govern cannot compel citizens to remain loyal to that recklessness. The public is not obliged to support a system which is broken and unresponsive.

This President and former military officers have lied to the American public. The deceptions meant there was inadequate information. Needed corrections did not occur. The war costs are rising well beyond what the public was led to believe might be a reasonable budget. In exchange for reckless combat mismanagement, American citizens are facing budget cuts. The President appears more interested in meeting Iraqi children in Baghdad than in talking to American children in Baton Rouge about their sacrifice.

The job of the US Government is to focus on governance so American citizens can focus on their jobs. Until DC provides the leadership, American citizens will not be able to focus on their jobs, but are distracted by the requirement to conduct oversight of Congress and the Executive.

Going Forward

These questions hope to generate public discussion how the US government, even during war time. There error is to defer to a President and military personnel who have a separate agenda than oversight or reliable information. The following issues need to be discussed:

Grand Jury: Lessons of FBI Interviews in re Wecht

We’ve learned from the Wecht Case that the Department of Justice will use FBI agents to intimidate private citizens. The NSL abuses suggest that FBI agents can put gag orders on people most knowledgeable of important information.

The public needs more information about how the President, DoJ, and DoD worked since 2002 to intimidate private citizens from discussing these allegations. Also, there needs to be a review of which private, outside counsel the President and GOP have used to intimidate the media and private citations from investigating, reporting, and discussing these allegations since 2002.

- Where is the Grand Jury reviewing these issues; or has DoJ AG and US Attorneys agreed not to empanel any grand jury to review this alleged contract fraud?

Adverse Inference: We judge no grand jury has been empanelled because the President has directed DOJ AG and the US Attorneys not to litigate these issues. There is no public evidence since 2002 that any US Attorney or Grand Jury has reviewed these issues.

- How many FBI agents have self-issued NSLs to contact, at home, military and civilian personnel who know of this illegal activity, have conducted “interviews,” then left the homeowners with the impression that this is a ‘classified investigation,” knowing fully well there would be no investigation?

Adverse Inference: We judge this has happened as a ruse to gather information about who might be discussing this illegal activity, then impose consequences on formerly assigned US government personnel to block hiring of uncooperative employees.

- How many American homeowners have been visited by US law enforcement, FBI, or DoD investigators on these issues, and intimidated to keep quiet about what they knew under a pretext of an “ongoing investigation”?

- How many NLSs did the FBI self-issue to put gag orders on those familiar with these allegations, and thwart public discussion of this activity going forward from 2002?

Adverse Inference: We judge NSLs have been abused to conduct fishing trips and intimidate personnel suspected of cooperating with Congress, the media, and other investigators.

Congressional Investigations

We need to discuss the solutions Congress must discuss to ensure Congress, even during wartime, can independently, without fear, freely audit and conduct oversight of the Commander in Chief. This President and Congress have jointly agreed to use the “we’re at war”-excuse to not aggressively conduct oversight, nor ensure competent management of combat operations. Congress needs to discuss how it will maintain its independence, and not rely on the President’s stage handling which would materially affect Congressional conclusions.

- Which security forces could Congress independently commission as a direct reporting unit like the GAO that will serve only the Congress and ensure members of Congress and their staff can independently conduct oversight of the Executive Branch during wartime?

- Which security and combat units could be put under direct control of the Congress to ensure Members of Congress can conduct independent oversight of the President in a combat zone?

Scope of Alleged Fraud

A lot has happened since 2002. Many assumptions about Presidential power and checks and balances have been turned on their head, tested, litigated, and repackaged. This President and DOJ OLC show they are willing to violate the laws of war, and work with DoD General counsel to develop complex plans to thwart the laws of war. It is nothing for them to orchestrate a plan to deceive the public, exploit conflicts of interest, and conduct other frauds in secret. Part of Member of Congress’ reluctance to impeach might be linked with the enormity of the problem.

- How many contracts linked with these retired military officers were signed in exchange for officers’ deceptive statements about Iraq?

- Which contracts were awarded and funds expended, allegedly in exchange for these misleading statements to the public, should be subject to additional audits, increased audit scope, and criminal prosecution?

- Which specific CID, NCIS, OSI, or FBI investigations did the President, DoJ OLC, or DoD IG block because of non-disclosed agreements with former military officers and contractors?

Congressional Oversight

Putting aside whether the retired military officers did or didn’t lie about progress in Iraq, there’s a missing part of the equation. Members of Congress supposedly were conducting independent oversight and fact finding to Iraq. Congress cannot credibly call itself a separate but equal branch of government when it, like the retired military officers, is subject to carefully managed stage shows in Iraq.

- What independent system is required to ensure future Presidents, Members of Congress, DoD contractors, and military personnel do not abuse war crime conditions to negotiate contracts based on false, misleading, or unreliable information about the combat conditions?

- Why didn’t Congress, when they visited Iraq, report substantially different conclusions about Iraq that those who enjoyed DoD-managed fact finding visits for the retired military officers?

Adverse Inference: The Congress was on the same, highly orchestrated trips the retired military officers enjoyed. Congress was led by the President; Congress did not fully assert its independence.

- What legislative reforms or additional oversight does Congress need to debate to ensure the US government does not use propaganda against the Congress through former military personnel?

- Which prohibitions should Congress enact, per Article 1 Section 8, to adequately regulate how former and retired military personnel do or do not use their military affiliation in relation to public statements, contract negotiations, and communications related to combat operations?

- What disclosures might former military officers be required to make in public during both peacetime, and wartime, that would disclose financial arrangements with contractors, contacts with US government, media statements they provided, and funds connected to firms they are associated; or is the existing information available, but could be part of a Congressionally- or independently-funded website?

Risk Mitigation, Contract Management

There should have been internal controls within the firm and US government to ensure these conflicts of interest were mitigated, not exploited. The open information suggests the contract process was compromised, but, of greater concern, there was no adequate, independent mechanism outside the Executive Branch to detect this corruption, nor ensure the public was quickly aware of these conflicts.

- Why didn’t the bounty system, awarding a percentage of the total fraud to whistleblowers, work to mitigate this risk?

Adverse Inference: People were intimidated to keep quiet under the guise of “national security” and “loss of status”. It remains unclear why, despite a potentially high bounty, the reports of contract fraud appear to be sparse. It is unclear whether the DoD hotline information is independently reviewed, by people outside the DOD IG’s office, to ensure the IG is or is not adequately managing the incoming complaints.

- To what extent has the “post 9-11 mindset” been used as a pretext to quickly approve contracts, not adequately negotiate contracts, and bypass the independent contracting reviews within DoD?

Adverse Inference: 9-11 has been exploited. Self-evidently, Iraq has nothing to do with 9-11, yet in 2008 9-11 is still invoked as a pretext to abuse power, not conduct oversight, and assent to secrecy about illegal activity.

- To what extent has the DoD contracting community been corrupted, blocked from conducting independent reviews, and adequately ensuring there are no conflicts of interests?

Adverse Inference: We view the DoD contracting community as non-independent, but a political arm of the Administration. It’s unclear how long it will take for the next President to restore professional competence within the DoD and DOJ contracting communities.

- To what extent have these relationships between former military officers, DoD, and DoD contractors contributed to contract underbidding, ineffective contract oversight, unreasonable waivers to cost overruns?

Lessons of NSA FISA Violations

The President has a habit of blocking DoJ OPR reviews and working with contractors in secret to violate the law. We’ve also learned DOJ OLC created legal memoranda that would legalize questionable conduct, and be used to explain away needed investigations and prosecutions.

- At which briefings did Members of Congress learn of this conflict, but were told they could not discuss this information with legal counsel because it was a state secret or national security item linked with ongoing combat operations?

Adverse Inference: We judge members of Congress were told in the early days of 2002 that there were planned operations against Iraq, and Members of Congress did rely on dubious information planted by the White House with “independent” Congressional investigators.

- Did the President or others promise, imply, suggest, or leave the impression with any retired military officer that in exchange for favorable public statements about Iraq, the military officers would enjoy favorable contract position, and have no need to be concerned with audits, prosecutions, or other criminal sanctions?

Adverse Inference: It’s reasonable to conclude the same process applied to NSA telecoms was applied to the DoD contracts: Contractors worked with DOJ OLC and DoD General Counsel to create contract vehicles that would insulate corporate officers, ensure inadequate oversight, and block required investigations and audits under the “national security”-pretext.

- Did the President through DoJ OLC direct the Criminal Division and FBI, CID, NCIS, and OSI not to review, avoid, or conduct cursory reviews specific combat-related contact frauds?

Adverse Inference: We judge the answer is, “Yes.”

- To what extent has the President corrupted the DoD IG and DoD criminal investigation units that were supposed to have a reporting requirement to Congress?

- To what extent is the President’s corruption of the DOJ OPR and DOJ IG (in re NSA illegal telecom violations) a microcosm of how the President corrupted DoD IG and public auditors to block investigations of contractors supporting DoD missions?

- To what extent has DoJ OLC worked with DoD IG, DoD General Counsel, and contracting officials to create an impermissible impression that firms connected with these former military officers would not be subject to prosecution, as some of the NSA telecoms appear to suggest was promised in exchange for cooperation with the illegal FISA violations and surveillance contracts?

Lessons of US Attorney Firings

We’ve learned the President and White House counsel are willing to work with the DOJ Staff to thwart enforcement of the law, and corrupt the United States judicial system.

- Were any US Attorneys fired or threatened for discussing possible prosecution of US government contractors allegedly implicated with this alleged illegal activity, deceptive contracts, and conflicts of interest?

Adverse Inference: We conclude US Attorneys do have material information about GOP-linked DoD contracts which relied on favorable retired military officer repots about Iraq; and these DoD contracts were used to launder money for the GOP campaign funds. Despite this corruption, the GOP lost majority-control of the Congress.

- What information has the President, DoJ OLC, and White House counsel impermissibly shielded from judicial review under the guise of “national security,” despite knowing full well the objective of that classification and shielding had nothing to do with protecting a bonafide secret, but in preventing the Judicial branch from adjudicating on issues of war crimes, FISA violations, contract abuses, and other unconstitutional conduct?

Adverse Inference: We judged the courts have been impermissibly given false and misleading affidavits from agency heads on the false assertion that these allegations, if investigated, would disclose national security secrets. The courts have not adequately addressed issues of entanglement. The judicial branch effectively worked with Congress to create courts that would, in secret, dis-entangle evidence and present the information to open courts. The court is still stunned by 9-11 and not willing to aggressively challenge Presidential or DOJ OLC assertions on claims of secrecy.

Lessons of State Level Litigation in Re FISA Violations

We’ve learned the DOJ OLC will attempt to thwart the state Attorney Generals from gathering evidence about alleged US government-contractor illegal activity in each of the fifty states. It remains an open question to what extent this pattern of abuse in re the FISA violations is repeated in these contracts involving former military officers and Iraq.

These events are alleged to have started in 2002, but have only recently been openly discussed. This suggest since 2002 many knew of questionable conduct, but have for six [6] years ignored existing requirements.

- What state-level auditing systems and corporate governance standards has the US government thwarted and blocked auditors from enforcing at the state level against publicly traded companies providing combat support to DoD?

Adverse Inference: Since we’ve seen no state-level enforcement, we conclude there has been a total shutdown. How the Federal Government trumped the State-level government remains to be understood. State governments are not obliged to follow the US government’s lead on illegal activity.

- To what extent is the DOJ OLC opposition to State AG efforts to litigate violations of state law a microcosm of DoJ OLC efforts to block other state officials from enforcing auditing standards, corporate governance standards, and conduct oversight of state incorporated entities providing assistance to DoD on the basis of these alleged frauds?

Adverse Inference: The analogy is appropriate. The public should challenge Members of Congress and candidates to force them to explain why these lessons have not been applied to prompt more robust oversight, and challenge the Federal Government’s alleged illegal activity.

Lessons of Inadequate DoJ AG Geneva Enforcement

The Attorney General stated he would not, when DoJ OLC determines the activity is legal, enforce alleged violations of Geneva. This suggests that if DOJ OLC and DoD had coordinated to “legalize” these conflicts of interest, the AG would have no plan to permit any investigation or prosecution of these alleged contract frauds.

The abuses are alleged to have started in 2002, and little has been discussed openly until 2008. This suggests there has been a secret DoJ OLC-AG agreement to block any efforts to investigate or prosecute these alleged contract frauds; and that the DOJ OLC would have coordinated long ago with OVP and White House counsel on these planned arrangements, and decision not to coordinate.

- As with Geneva, does the DOJ AG plan to not fully enforce contracting laws against retired military personnel?

Adverse Inference: No.

- Has DoJ OLC crafted any legal memoranda Congress is aware which would “legalize” in secret this conflict of interest?

Adverse Inference: Yes.

- When was the DOJ OLC asked to opine on the legality of efforts to block enforcement of contract laws against retired military officers for providing favorable statements about Iraq?

Adverse Inference: Before 2001, and refined after 9-11.

- When did DOJ OLC opine on plans to not fully enforce the contacting laws against retired military personnel who provided favorable statements about Iraq?

Adverse Inference: In 2002, after the planning cells inside DoD were drafting plans to sell the war.

- Despite this conflict of interest, does the DOJ Attorney General continue to plan to block prosecutions of firms which DoJ OLC and DOD have approved were “legal”?

Adverse Inference: Yes.

- When does the DOJ AG plan to recuse himself, and permit the US Attorneys to enforce the laws against contract fraud, regardless DoJ OLC and White House counsel coordination with the DOD General Counsel and DOD IG?

Adverse Inference: Never, he will have to be impeached.

- Where is DOJ OPR in this process: Have they reviewed the DOJ OLC memoranda to DoD General Counsel and the DoD IG related to these conflicts of interest, public statements, and the deceptive statements about Iraq?

Adverse Inference: DOJ OPR has been blocked, as they were with the FISA violations.

- How long has DoJ OPR and DOJ IG been thwarted by the President and DOJ AG from reviewing legal issues related to (a) contract fraud; (b) DoJ Staff counsel involvement with these discussions; and (c) the legal memoranda related to blocking enforcement of the laws against retired military personnel who provided favorable statements about Iraq?

Adverse Inference: Since 2002 when the original plans were disclosed to DOJ OPR by DoJ Staff concerned about the legal implications and attorney misconduct issues. The legal issues appear to be part of the DOJ OPR ongoing investigations into DoJ Staff counsel misconduct on issues of Geneva. We expect the first wave of public DoJ OPR referrals to the DC Disciplinary board not to include any allegations related to the DOJ Staff misconduct in re military officer conflict of interest issues. Although the referrals are ready, the White House staff has convinced DOJ OPR that the timing of these disclosures would appear politically motivated to affect the elections. DoJ OPR does not agree, but has been overruled, no thanks to Senator Feinstein and Senator Schumer for rubber stamping the DOJ AG.