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Donald Trump’s impeachment trial is already unfolding as a Mitch McConnell-coordinated farce. This week on Intercepted: The charges against Trump are serious, but they raise the question of why Congress has never impeached a president for war crimes. None of the three Senate trials of a president was for imperial crimes committed in plain sight, despite a long history of presidents invading countries, killing civilians, and torturing prisoners. Constitutional and international law scholar Marjorie Cohn discusses the trial of Trump, the refusal of lawmakers to prosecute war crimes, and presents the case that Trump should be impeached for assassinating Iranian Maj. Gen. Qassim Suleimani in Baghdad. This month marks 29 straight years that the U.S. has been bombing Iraq. Joe Biden, who proactively aided and abetted the Bush administration’s drive for war, has been openly lying about his record, but Bernie Sanders also has some serious questions he needs to answer about his own support for regime change, missile strikes and deadly economic sanctions. Jeremy Scahill and Sam Husseini, of the Institute for Public Accuracy, present a thorough history of both candidates’ records on Iraq over the past three decades.

Kathleen Kingsbury: The editorial board is in the opinion department. We are completely separate from the facts. We invite all the candidates to New York and we interview them and then finally we make a decision. So, Senator Sanders, thank you so much for coming. We all know your bio. We’ve watched the debates, the —

Bernie Sanders: Look, I don’t tolerate bullshit terribly well. It’s just not my style.

KK: Thank you very much for coming.

BS: Thank you very much. 

Amy Klobuchar: This is more people than the Des Moines Register board.

KK: Why don’t talented people want to continue to work for you?

AK: I am someone that has a record of a dysfunctional work environment. 

KK: Thank you so much, Senator, for coming.

AK: Thank you.

Aisha Harris: How do you counter the Mayo Pete memes? Are you familiar?

Pete Buttigieg: It’s part of what this bullshit campaign means. And I’m very mindful of that. 

KK: All right, thank you very much. 

PB: Thank you very much. 

Elizabeth Warren: Hi!

KK: We don’t have very much time so you don’t mind if we just jumped right into questions?

EW: Of course not. Who have we got here so far? Skyler?

KK: Senator.

EW: Good to see you. Who else have we got? Kenny? Is that right? Kenny and the boys? 

Charlie Warzel: How do you first —

EW: Hold on a sec, I’m gonna get me a beer. You want a beer?

Bruce Mann: No, I’ll pass on the beer for now. 

EW: You sure?

KK: Thank you so much for coming.

EW: Thank you for having me. 

Joe Biden: Hi. How are you?

KK: Are you too old to be running for president?

JB: Nah. I ain’t dead. I’m probably in real trouble after this interview. But thank you very much for having me.

KK: Thank you.

KK: In this election, Democratic voters face a choice. But in this perilous moment, we are breaking with convention and putting our support behind Elizabeth Klobuchar.

[Music interlude.]

Jeremy Scahill: This is Intercepted.

[Music interlude.]

JS: I’m Jeremy Scahill coming to you from the offices of The Intercept in New York City and this is episode 113 of Intercepted.

Donald J. Trump: To embrace the possibilities of tomorrow we must reject the perennial prophets of doom and their predictions of the apocalypse.

JS: The trial of Donald Trump is underway in the U.S. Senate and it is clear that Mitch McConnell is intent on making it an absolute kangaroo proceeding. What the Senate is technically doing this week — or supposed to be doing — is focusing narrowly on two articles of impeachment for abuse of power and obstruction of Congress. The abuse of power article centers on President Trump’s attempt to solicit and pressure Ukrainian President Volodymyr Zelensky to investigate — and publicly announce that investigation — into Trump’s political rival, Joe Biden. Donald Trump had withheld Congressionally-approved military aid to Ukraine in an effort to pressure Zelensky to comply. 

The second article of impeachment for obstruction of Congress lays out how Trump allegedly directed officials to defy subpoenas sent from the House of Representatives as they sought to investigate Trump’s actions. 

House Democrats clearly saw the July phone call with Zelensky as the tipping point in making the case for impeachment. Barring some sort of strange miracle or enough Republican senators somehow finding their ability to call facts facts, Donald Trump appears headed for technical victory here. We shall see.

But there is a much larger context to discuss this week as we watch the third Senate impeachment trial in U.S. history unfold. Why are these the kinds of issues that lawmakers choose to focus on, while ignoring the massive crimes committed by presidents in plain sight? U.S. presidents from both parties have committed war crimes repeatedly, yet we have never had the impeachment of a president for any of those, including Andrew Johnson, Bill Clinton, and Donald Trump.

But it is important to know that there have been attempts by brave and principled lawmakers to do just this.

House Speaker Nancy Pelosi, who led the House impeachment of Trump repeatedly waved off demands to impeach George W. Bush for lying to the U.S. public and invading and occupying Iraq. But Representative Dennis Kucinich read 35 articles of impeachment against Bush into the record in 2008, while being ignored by the majority of the Democratic party at that time.

Dennis Kucinich: Both personally and acting through his agents and subordinates, together with the vice president, illegally spent public dollars on a secret propaganda campaign to manufacture a false cause for war against Iraq.

JS: A year earlier in 2007, Kucinich had introduced an impeachment resolution against Vice President Dick Cheney. That too, ultimately failed because it did not have the support of Democratic House leadership.

In the 1980s and 90s, Texas Democrat Henry Gonzalez led multiple impeachment efforts, including against Ronald Reagan for the invasion of Grenada in 1983 and Iran Contra and also against George H. W. Bush for the 1991 Gulf War.

Henry Gonzalez: And I want to remind my colleagues, that I was the only one to introduce an impeachment resolution on Mr. Reagan. 

Today I exercise this constitutional right and responsibility to speak out in opposition to war in the Middle East, and in support a removal of our nation’s chief executive. 

JS: In April of 1952, there were actually three days of debate about impeaching Truman for actions related to the Korean War. There was talk of impeaching Nixon over Vietnam and the secret war in Cambodia. And even further back in history, there were some efforts to impeach President James Polk for misleading the American public about the Mexican-American War.

Without a doubt, it is important that we weigh the specific evidence against Donald Trump in this current trial. At the same time, the nature of these charges raise serious questions about the priorities of lawmakers not just now, but throughout U.S. history.

Law Scholar Marjorie Cohn on Trump, Impeachment, and War Crimes

So, to discuss all of this, I am joined now by Marjorie Cohn. She is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and former deputy secretary general of the International Association of Democratic Lawmakers. Her latest book is, “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.” Marjorie Cohn, thanks very much for joining us on Intercepted.

Marjorie Cohn: Thanks so much for having me, Jeremy.

JS: I want to just ask you at the onset, what you make of the actual articles that were delivered to the Senate in this array of actions that Trump has committed as President of the United States? What is your assessment of what the Democrats chose to move forward on?

MC: They made a very calculated decision to narrow it, to keep it nice and bite sized so that the American people could understand it. So, they limited it to the Ukraine situation. I have gone back and forth about whether they should have broadened it. And certainly, there’s a long list of impeachable offenses that Donald Trump could have been charged with, but I understand politically why they limited it. Now, they do not charge a crime — a violation of a statute — and that’s basically Trump’s defense. Alan Dershowitz has been all over the airwaves, saying, well, abuse of power is not a crime.

Alan Dershowitz: Well, but abuse of power, even if proved is not an impeachable offense. That’s exactly what the framers rejected. They didn’t want to give Congress the authority to remove a president because he abused his power. 

MC: He obviously has not read the Federalist Papers or Alexander Hamilton, which makes very clear that impeachment is a political process and abuse of power was alleged against both Clinton and Nixon in their impeachment proceedings. 

JS: In addition to not reading those Federalist Papers, Alan Dershowitz also may not have listened to this guy during the Clinton impeachment named Alan Dershowitz who was making the exact opposite point. 

AD: If you have somebody who completely corrupts the office of president and who abuses trust, and who poses great danger to our liberty, you don’t need a technical crime. We look at their acts of state. We look at how they conduct the foreign policy. We look at whether they tried to subvert the Constitution. The way Iran-Contra did by going behind —

MC: So he’s saying he’s an expert on the Constitution. And if Alan Dershowitz is an expert on the Constitution, then I’m an expert on nuclear physics, quite frankly.

JS: If we had an actual fair jury, and Mitch McConnell has openly communicated that he basically is not going to be conducting this trial in anything resembling an impartial way.

Mitch McConnell: And everything I do during this, I’m coordinating with the White House Counsel, there will be no difference between the President’s position and our position as to how to handle this.

JS: But if that wasn’t an issue, and this was going to an impartial jury that was just going to weigh the facts, based on what already is in the public domain, is it your assessment that these are legitimately impeachable offenses that are being alleged against the president?

MC: A, they’re legitimately impeachable offenses and B, there is sufficient evidence to support these particular allegations, the articles of impeachment. And by the way, I want to say one thing, Jeremy, and that is that I’ve been a criminal defense attorney for many years, and I have never seen a situation where the court, the jury, and the judge walk in lockstep with the defendant, get his input on the the strategy, swear not to be impartial or say they’re not going to be impartial and then announce a not guilty verdict before the trial. It’s just unheard of. 

And I think that Nancy Pelosi waiting a month to deliver the articles of impeachment, I think that was very savvy because that gave time for the American people to understand how McConnell and the Republicans in the Senate are really trying to have a kangaroo court just rushed through an acquittal and newly discovered evidence is coming out every day. And now I know that the polls show that a majority of the American people want to see witnesses. They think that this is a trial and there should be witnesses. Yes, I think the articles are more than supported by the evidence that we’ve seen already. And that’s not including the most recent evidence from Lev Parnas —

Lev Parnas: President Trump know exactly what was going on. He was aware of all my movements. I wouldn’t do anything without the consent of Rudy Giuliani or the president. That’s the secret that they’re trying to keep. I was on the ground doing their work.

MC: The GAO report saying in fact, Trump did commit crime. His administration did commit a crime when they withheld the military assistance from Ukraine that Congress had appropriated. So, there is a crime there. It just hasn’t been specifically alleged as an article of impeachment.

JS: You know, Trump’s legal team, in addition to Alan Dershowitz, although Dershowitz would say, “I’m not part of the legal team. I’m just making an argument about the Constitution.” But setting that aside, you also have people like Ken Starr, and then people that have been day in, day out working for President Trump, what we know thus far about their position, and what they are sort of telegraphing their response is going to be boils down to saying, you know, this is flimsy, he did nothing wrong. That part of it we’ve been hearing from pundits and Republican lawmakers, but also this argument that removing him from office, even in the case of a conviction would be unconstitutional.

AD: One of the major issues was a president would become incapacitated. Madison talked about that. Governor Maurice talked about that. And that was a good reason for having impeachment. You don’t want an incapacitated president. 

JS: What are you reading into what they’re trying to lay the groundwork for here?

MC: They really don’t have a leg to stand on in refuting the facts because it’s a pretty airtight case. And so they’re attacking the procedure which is what the Republicans did in the House during the impeachment inquiry.

Jim Jordan: We’ve already had the most unfair process I’ve ever seen on the House side. Republicans weren’t weren’t given subpoena authority. The President had no due process. He couldn’t cross examine witnesses. Adam Schiff prevented witnesses —

MC: But by saying that removal from office would be unconstitutional means they haven’t read the Constitution, because the Constitution says very clearly that the House shall have the sole power of impeachment and the Senate shall have the sole power to try impeachments and to convict and remove a president from office. And that’s why the founders put impeachment six times into the Constitution to check and balance the executive. If they thought that the next election was enough, why even have impeachment? So, I think that that article is going to fail. Now, of course, it’s a political issue of, you know, what the senators do and they seem to walk in lockstep with Trump. 

And in the Mueller report, Mueller — who in my opinion, was overly cautious, you know, in not actually coming to a conclusion on whether Trump obstructed justice because the Office of Legal Counsel of the Department of Justice had issued two memorandum saying that a president cannot be tried for criminal offense while in office. But Mueller did lay out 10 grounds for obstruction of justice, and then at the end of that said, and now basically, the ball is in Congress’s court and what he was talking about was impeachment.

JS: One question that I think a lot of people who are critics and have followed U.S. foreign policy and are aware of the history of the various wars, and the assassinations and regime changes often ask is why don’t we ever see any real meaningful moves to bring articles of impeachment against a president for war crimes or imperial crimes or unlawful or illicit interfering in the affairs of other countries through force or economic weaponry?

MC: Well, that’s a good question. You also don’t see the Congress passing a resolution forbidding the use of military force under the War Crimes Resolution. We actually did have one regarding Yemen and ultimately, Trump vetoed it. And now we have pending with the Iran situation, a concurrent resolution passed by the House, saying that Trump has to, you know, stop any kind of military action against Iran unless and until Congress agrees, or there’s an imminent threat. That’s in the Congress under the War Powers Resolution. The War Powers Resolution was passed in 1973, after the Vietnam War, another war that the Americans were lied into, just like the Iraq War. And the Congress said, we want to take back the war-making power because Article One of the Constitution says Congress has the power to declare war, not the President, but Congress. Article two, which Trump relies on, he says, I’m commander in chief and I can do whatever I want. 

DJT: Also, someday, you ought to read a thing called Article Two, read Article Two which gives the president powers that you wouldn’t believe but I don’t even have to rely on Article Two. There was no crime. There was no —

MC: Article Two does not give him the power to declare war. It gives him the power as commander in chief to carry out the order of Congress if and when Congress does declare war.

JS: We all know that Donald Trump ordered the assassination of General Qassim Suleimani and also killed in that strike was Abu Mahdi al Muhandis. That is just the latest episode where Donald Trump has openly celebrated what some would say is a violation of international law. But on its facts alone, is there something there that could be pursued again, if we had the kind of politicians that were interested in this, with reason to pursue impeachment articles against Trump for this assassination?

MC: Yes, and there’s a crime. Dershowitz wants a crime. There’s a crime. It’s called the War Crimes Act. It’s a federal statute and this is a war crime. What Trump did was to mount a crime of aggression, as defined by the International Criminal Court. There are two different ways that someone can commit the crime of aggression: first, bombardment by the armed forces of a state against the territory of another state. And the other way that an individual can commit aggression under the Rome Statute for the International Criminal Court is the use of armed forces of one state which are within the territory of another state with the agreement of the receiving state in contravention of the conditions provided for in the agreement. 

Well, Iraq and the United States have a joint military agreement that governs the stationing of U.S. troops in Iraq. And Iraq’s acting Prime Minister called the U.S. bombing a flagrant violation of the conditions of that agreement. And in fact, the Iraqi parliament voted that the U.S. forces must leave. Well, the U.S. forces said, we’re not going to leave. We’re going to stay here. And that in my book is an illegal occupation. So, if Congress wanted to do its job and use the war crimes statute, and guess how many times the war crimes statute has been used, Jeremy? Zero, zero times. Never. It’s on the books, just like the torture statute is on the books which torture also constitutes a war crime. And we saw torture throughout the Bush administration and we saw torture during the Obama administration with the force feeding of prisoners at Guantanamo, which amounts to torture. 

JS: Well, we also saw Donald Trump on the campaign trail threatening to murder the families of people that he determines to be terrorists. I mean, he openly has promised war crimes, also threatening to destroy cultural sites in Iran. I mean, he’s often announcing that he will do these things.

MC: That’s right. And under the Geneva Conventions, you can’t target civilians. That is a war crime. It’s also a war crime under the Rome Statute for the International Criminal Court.

JS: The United States is not a party to the Rome Statute.

MC: That doesn’t matter. The court could still take jurisdiction over nationals of the United States in two instances: one, if they were found on the territory of a country that is a party to the Rome Statute or two — and this is, you know, hell would freeze over first — the Security Council could sanction a prosecution.

JS: Right, and the United States, of course, has veto power. On that issue of the Rome Statute and the International Criminal Court, it’s also the case that bipartisan legislation passed in the early 2000s that was referred to as the Hague Invasion Act that essentially said, “Look, if any U.S. personnel are taken there, that the President is authorized to use any means necessary to liberate Americans accused of war crimes.”

MC: And the other thing that the United States did under the Bush administration was to basically blackmail about 100 countries with developing economies, weak democracies, who were parties to the Rome Statute saying that if you turn over a U.S. National to the International Criminal Court in The Hague, Netherlands, we will withdraw foreign aid.

JS: Right, and again, I point out that there was bipartisan support for this because, you know, there have been questions also about Democratic presidents. I remember when Bill Clinton initiated the bombing of Yugoslavia in 1999 for 78 days — even though the United Nations had explicitly not signed off on it — that there were lawyers who were making an argument based on the War Powers Act, but also saying that this can be impeachable conduct. This isn’t just rabid Republicans there have been establishment Democrats that also have adopted this position throughout history that basically there’s one set of rules for the Yugoslavias and Rwandas of the world, or anyone we say is an enemy or a sort of banana republic and then there’s another set of rules for the United States and its allies.

MC: Absolutely, I really think we shouldn’t go any further in this conversation without mentioning the United Nations Charter, which is the granddaddy or grandmother of all treaties, and treaties under the Supremacy Clause of the Constitution constitute the supreme law of the land. So, the U.N. Charter is part of U.S. law. It’s not out there in the stratosphere international law. It binds us and the U.N. Charter says that no country can use military force against another country unless the Security Council agrees, as you said, or if it’s acting in self defense. And what Trump has done with the killing of Suleimani is to stretch that concept or attempt to stretch that concept of self defense to say, well, he was planning imminent attacks. Although there was never any evidence of any imminent attack. And so you see repeatedly, the United States violating the UN Charter. Bush in his illegal invasion and regime change in Afghanistan and in Iraq. Obama with his illegal drone strikes in seven different countries. Trump in Iran with the killing of Suleimani, killing civilians in Afghanistan. 

And then the other thing that we need to mention here is that under the Rome Statute and under ordinary criminal law, the United States and U.S. officials who were involved in this, in prosecuting these actions are also guilty of aiding and abetting war crimes, and that is a separate ground for liability under the Rome Statute: aiding and abetting Turkey’s war crimes in Syria, aiding and abetting Saudi Arabia’s war crimes in Yemen, aiding and abetting war crimes in the Philippines against their own people, aiding and abetting Israel’s war crimes against the Palestinians, attempting a coup in Venezuela — highly illegal and also illegal under the International Covenant on Civil and Political Rights. 

It’s because this administration has so little regard for the law. We’re seeing this in the impeachment proceeding. But when we look at what Trump has done in the last three years in the areas of foreign policy — and this doesn’t even get into the Emoluments Clause and all the other corruption — he has, first of all, he doesn’t read, so he doesn’t even read the law. And he surrounds himself with “Yes” men who have no regard or respect at all for the law.

JS: In the case of Nancy Pelosi, when she became speaker, the first time of the House in 2007, she very publicly squashed every effort to hold the Bush administration accountable for the war in Iraq. And Pelosi said at the time, “Democrats have no interest in impeaching Mr. Cheney or President Bush over the Iraq War.” In 2014, she said —

Nancy Pelosi: And the reason, to get back to your question, I did not encourage those who wanted to move to impeach the president, although they had an argument, was that it wasn’t something that I wanted to put the country through.

JS: And then at a CNN Town Hall in 2019, Pelosi said she knew that Bush lied.

NP: But having said that, it was in my view, not grounds for impeachment.

JS: What is your response to the positions, Pelosi took first time around as Speaker of the House on Bush, Cheney and impeachable offenses?

MC: You know, she really has provided leadership for not holding them accountable and been very conservative and very cautious. In fact, the Ukraine scandal had to be in her face documented, signed, sealed and delivered before she’d even agree to pursue impeachment. It had to get that bad. Although she certainly has played a constructive role recently, with the impeachment proceeding, she has played a very unconstructive role, in fact, very damaging role since she became Speaker of the House initially in not bringing this issue, the issue of illegal wars, war crimes, torture to the floor of the House, and that’s that’s really despicable. 

But I think there just has not been an appetite for impeachment of any president from George H.W. Bush to Bill Clinton. Well, actually Bill Clinton was impeached. What? For lying about sex under oath in front of a grand jury. You know, compare that, that is a federal crime, but compare that with what Trump has done with withholding military aid, basically, blackmailing threatening the President of Ukraine. You’re not going to get a high level White House meeting. You’re not going to get this military assistance unless you agree to announce spurious investigations into Donald Trump’s political enemies. I just don’t think there’s much comparison between that and lying about sex.

JS: I agree with you that that is an apt comparison between what was Clinton charged with versus what is Trump charged with. But in a way, I think a more apt comparison would be to say, look what Clinton was impeached for, instead of bombing Iraq on average once every three days, under the guise of the no-fly zones implementing the most brutal regime of economic sanctions in history in Iraq. I mean, part of the reason I wanted to talk to you, and you’re prosecuting this well, is because when we look even at the facts of Trump/Ukraine, that you’re laying out, in a way it pales in comparison to the epic crimes that are committed by commanders in chief over and over and over again, often to the sounds of trumpet and applause at their States of the Union rather than, hey, wait a minute, you may be violating international law or committing war crimes in the name of the American people. 

And Marjorie, as I was preparing to talk to you, I was recalling that this month marks 29 straight years that the United States has been bombing Iraq. Twenty-nine straight years. And it seems as though there is no chance that any U.S. officials except the low-ranking soldiers that were prosecuted over Abu Ghraib, that no one is going to be held accountable for these crimes. How do we stop this pattern where you have a handful of lawmakers that get it, but it’s never going to go anywhere? In your view, how does this change? How do we become a nation that takes seriously the imperial crimes of our most senior officials?

MC: I think the reason that Congress has been so hesitant to put the brakes on any of these illegal wars and torture and war crimes is that they view it as being very unpopular. You know, when the U.S. is in a war — and I think that Trump was banking on this too, you know, he’d be a tough guy and kill Suleimani and and kill other people, and that would distract from impeachment. And so, when the United States is involved in a military conflict and U.S. troops are there, even if they’re there, you know, remotely with drones, you know, rally around the flag and there’s a lot of propaganda that you see. And one thing I do want to say about Iraq and holding people accountable is that in 2013, a woman named Sundus Saleh, an Iraqi woman filed a lawsuit against George W. Bush, Dick Cheney, Donald Rumsfeld, Condoleezza Rice, and Paul Wolfowitz, alleging that they had committed an illegal crime of aggression in Iraq. And in 2017, the lawsuit was ultimately dismissed by the Ninth Circuit Court of Appeals on jurisdictional grounds. 

[...]

Also, the Center for Constitutional Rights brought a lawsuit on behalf of the father of Anwar al Awlaki, who was a U.S. citizen because he was on Obama’s kill list. Ultimately, he was killed in a drone bombing and no immanence, totally illegal. And two weeks later, his son was killed, 16-year-old son sitting at a cafe. But the court throughout the lawsuit saying that al Awlaki’s father didn’t have standing. In other words: wait till your son’s killed and then come back and you know, you will be able to show you’ve been harmed. So, there have been some lawsuits trying to bring the leaders to justice. So, it really is discouraging, but I think we need to keep, especially when you have such an unpopular president as Trump, to expand and broaden the discourse and talk about the other crimes and the serious crimes and the war crimes and the violations of U.S. and international law to educate the public and to educate Congress as well.

JS: On that note, Marjorie Cohn, I want to thank you very much for being with us.

MC: Thank you so much, Jeremy. I appreciate it.

JS: Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild. Her latest book is, “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.” You can follow her work at MarjorieCohn.com.

[Music interlude.]

George H.W. Bush: Just two hours ago, allied air forces began an attack on military targets in Iraq and Kuwait. These attacks continue as I speak.

JS: As I said earlier, this month marks 29 straight years that the United States has been bombing Iraq. Through eight presidential terms, under both Democrats and Republicans, the U.S. has waged an unrelenting campaign of military and economic warfare against Iraq. And let’s be clear, the greatest victims of this sustained bombing and sanctioning and invading and occupying have been the Iraqi people. They have paid an unthinkable price for this imperial crusade. And more than a million of them have lost their lives as a direct result of U.S. wars.

In the aftermath of the 1991 Gulf War, the question of Iraq has been an issue in U.S. presidential elections. And despite the various platitudes and pledges of some Democratic candidates, none of them have ever effectively brought these wars to a halt. In fact, what we have seen more than anything else is the leadership of both political parties in the U.S. refining, tinkering with, adjusting the war strategy and, in the process, they have ensured that the war in Iraq will continue unabated.

After 9/11 and the fraudulent case to justify a war in Iraq, Democratic primaries have addressed Iraq primarily through the lens of who voted for the 2003 war and who was against it. That was true in the case of Barack Obama when he ran against Hillary Clinton.

Barack Obama: She voted for a resolution called, and I quote, “A resolution to authorize the use of United States armed forces against Iraq.”

JS: It was certainly the case as Bernie Sanders challenged Hillary Clinton.

BS: Hillary Clinton voted for the war in Iraq.

JS: It was even the case when Donald Trump ran against Jeb Bush, and then Hillary Clinton.

DJT: It took Jeb Bush, if you remember at the beginning of his announcement, when he announced for president, took him five days, he went back, “It was a mistake. It wasn’t a mistake.” 

Hillary Clinton has made one bad foreign policy decision after another, beginning with her support for going to war in Iraq. 

JS: And it is true today as Bernie Sanders takes on Joe Biden.

BS: One of the differences that Joe and I have in our record is Joe voted for that war I helped lead the opposition to that war which is a total disaster. 

JS: But there is a way in which just focusing on that one vote in 2002 on the Iraq war does a disservice to a serious and thorough examination of the political positions and decisions that have utterly destroyed Iraqi society over the past three decades. There is no question that voting in favor of that Iraq war resolution in 2002 was shameful and both Obama and Sanders were absolutely right to hammer their opponents for it. With Trump, he lies so much that it makes it impossible to take his claims of opposing the war seriously, so let’s just set that aside for a moment.

The disastrous war in Iraq, as Bernie Sanders has called it, did not begin in 2003 and it did not begin with that vote in 2002. It began in 1991 with the Gulf War. Both Joe Biden and Bernie Sanders voted against that war. But history does not just fast forward to 2002 from there. The 1990s in Iraq are crucial to understanding the extent to which the U.S. crucified Iraqi society and civilians. And both Joe Biden and Bernie Sanders have a lot to answer for before George W. Bush and Dick Cheney come on the scene, take power, before 9/11, and before the 2002 Iraq War resolution.

Following the so-called end of the 1991 Gulf War, which systematically obliterated civilian infrastructure in Iraq, the U.S. imposed the most devastating and deadly regime of economic sanctions in history. Those sanctions, which caused massive harm and death to Iraq’s civilian population, including its most vulnerable people. Both Joe Biden and Bernie Sanders supported that policy. Sanders also supported the bombing of Iraq with more than 40 cruise missiles waged by George H.W. Bush in his last days in office. At the time, Bernie Sanders said “the credibility of the United Nations is damaged if the U.N. resolutions are not enforced.” 

Under Bill Clinton, the U.S. also conducted what was at the time the longest sustained bombing campaign since Vietnam, at some points bombing Iraq an average of once every three days. This lasted throughout Clinton’s two terms. Both Biden and Sanders supported these bombings. 

But the crucial moment that gets almost no attention ever in the discourse and debates about who is responsible for the Iraq War occurred in 1998 when Bill Clinton signed into law a bill that had widespread support among both Democrats and Republicans. It was a law that the top neoconservatives in the U.S. had been pushing for. It was called The Iraq Liberation Act. It was this law that made regime change in Iraq the official position of the U.S. government. Not 9/11, not 2002. This happened in 1998. And both Bernie Sanders and Joe Biden voted in favor of that law. It was with that action that the U.S. truly started down the path that would culminate with the 2003 invasion and occupation of Iraq. It was that law, along with the 2002 vote, that the Bush administration would cite as its authority to invade Iraq. Now, Sanders did break ranks with Clinton and Biden in December of 1998 when Clinton conducted a massive campaign of airstrikes in Iraq on the eve of his impeachment. Sanders argued that the U.S. should not bomb without Congressional and U.N. approval.

BS: I am concerned that this action took place with no discussion in the United States Congress despite the fact that the Constitution makes it very clear that it is this body which declares war. I am concerned that while we are ostensibly suffering a United Nations resolution, the U.N. did not vote for this attack, does not support this attack, and that country after country throughout the world are condemning this attack.

JS:  And now we come to the Bush administration and the era where Biden and Sanders become total opposites on Iraq policy. Bernie Sanders, of course, voted against the 2002 Iraq War resolution and he spoke out vociferously against the invasion and occupation. Joe Biden not only voted for that resolution, he actually used his position as the chair of the powerful Foreign Relations Committee to help facilitate that war and to silence critics who warned of the lies that it was based on and the dangers it would bring to the world.

JB: In my judgment, President Bush’s right to be concerned about Saddam Hussein’s relentless pursuit of weapons of mass destruction and the possibility that he may use them or share them with terrorists.

JS:  There is no real comparison to the role that Joe Biden played in making war against Iraq with the positions that Bernie Sanders took, no matter how much the Biden campaign wants to make that true. At the same time, Bernie Sanders does not have pristine hands in this, though his role is largely confined to the 1990s policies. 

So today, we are going to go through the positions taken by both of these candidates so that we can have an honest discussion about the real differences between these two on Iraq.

I don’t endorse presidential candidates, but I will say clearly that I believe that Joe Biden’s record is a dangerous one on a range of issues, including Iraq. His role was not simply one of votes, but of actually using position of power to proactively aid and abet a criminal war waged by Bush and Cheney. That should be totally and completely disqualifying at least in the eyes of anyone who believes in justice and stands against U.S. dirty wars.

If we just look at the reality in the world and at U.S. politics on a factual basis, Bernie Sanders is the best chance we have had in this country, perhaps ever, and certainly since Jesse Jackson ran for the Democratic nomination, to have a president who truly represents a forceful rejection of many of the core tenets of U.S. imperialism. A U.S. president who up opens the possibility of radically shifting away some extremely deadly, imperial policies. The idea of electing a president who is not beholden to corporate interests has been a pipe dream in American politics. The whole system is bought and paid for by corporations. But Sanders is trying to buck that system. At the same time, Bernie Sanders should confront his own role in these 29 years of war against Iraq and own it, explain it, and in my opinion, acknowledge he was wrong to support the economic sanctions and regime change, as he has admirably done in the case of his 2001 vote for the Authorization of the Use of Military Force after 9/11.

BS: Only one person, my good friend Barbara Lee was right on that issue. She was the only person in the House to vote against the war in Afghanistan. She was right. I was wrong. So was everybody else in the House.

Sam Husseini Discusses the Voting Record of Joe Biden and Bernie Sanders on Iraq

JS: To dig deeply into these three decades of war against Iraq and the positions of Bernie Sanders and Joe Biden, I am joined now by Sam Husseini. He is a senior analyst at the Institute for Public Accuracy. His latest piece which was published by Salon, CommonDreams and Consortium News, is called “Joe Biden won’t tell the truth about his Iraq war record — and he hasn’t for years.” Sam Husseini, welcome back to Intercepted.

Sam Husseini: Great to be with you, Jeremy. 

JS: So, we know that both Joe Biden and Bernie Sanders voted against the 1991 Gulf War.

JB: The president sought the approval and over my objection was granted the approval.

BS: I fear that someday we will regret that decision. And that we are in fact laying the groundwork for more and more wars in that region in years to come.

Amy Goodman: More than half a million U.S. soldiers were deployed, some 90,000 tons of bombs were dropped, more than 200,000 Iraqis were killed.

JS: And George H.W. Bush ultimately decides not to do a full scale invasion and attempt to remove Saddam Hussein. And instead you have the United States implementing the most brutal regime of economic sanctions at that time in history that would go on then to kill hundreds of thousands if not more than a million Iraqis combined with so-called humanitarian bombing in the north and south of Iraq under the guise of the so-called no-fly zones. 

SH: What’s notable about that, Jeremy, and that has import today is if you look back on Bush’s memoirs, he says, if the war drags out, there’s going to be a serious move to impeach me. And indeed, Henry Gonzalez in 1991 as the war began, filed a move to impeach.

HG: At a time when our nation is deeply divided over the question of war, we find ourselves on the brink of a world war of such magnitude that our minds cannot fully comprehend the destruction that is about to be leveled.

SH: And that had apparently a positive effect on Bush. This is in contrast to Clinton and so on where there’s no longer movements to impeach by Congress members over illegal military action.

Bill Clinton: This election is a clarion call for our country to face the challenges of the end of the Cold War, and the beginning of the next century.

JS: Bill Clinton, he wins the 1992 election, comes into office and very soon thereafter one of his first major military operations is to launch airstrikes in Iraq over a totally fallacious plot to assassinate George HW Bush.

BC: There was, in fact a plot to assassinate former President Bush and that this plot, which included the use of a powerful bomb made in Iraq, was directed and pursued by the Iraqi intelligence service.

SH: I should add that that’s not what he was saying during the build up to his presidency. Just before he took office, Bill Clinton actually said, I’m a Baptist. I believe in deathbed conversions. If Saddam Hussein wants a new relationship, we can do that. 

And Bill Clinton predictably totally backtracked said that we’re going to maintain the policy no matter what. What Bill Clinton articulated, saying I will judge Saddam Hussein on his actions was A, perfectly reasonable and B, actually consistent with the UN Security Council resolutions, that is sanctions will cease to exist when Iraq deals with the weapons of mass destruction issues. And it was the U.S. position throughout the 1990s from the Bush administration to the Clinton administration, Albright, and so on.

JS: You’re referring to Madeleine Albright, who was the secretary of state under Bill Clinton.

SH: Correct. Continuously, in effect, saying we’re going to maintain the sanctions no matter what.

Lesley Stahl: We have heard that a half a million children have died. I mean, that’s more children than died in Hiroshima. And you know, is the price worth it? 

Madeleine Albright: I think this is a very hard choice, but the price, we think the price is worth it.

SH: In effect undermining the arms inspection regime. It eviscerated any incentive for compliance and it ended up making the arms inspectors a play thing of Washington that Saddam Hussein attempted to utilize because it was the only thing he could utilize on the world stage, i.e. he would kick them out periodically for geopolitical effect.

JS: Since Bernie Sanders started running for president, I have been saying that he needs to be directly asked about his support for the U.S.-led economic sanctions on Iraq, which killed far more people than U.S. wars did during that same period. 

BS: It is my belief that the people of Vermont are overwhelmingly convinced that the crisis in the Persian Gulf can be resolved in a non-violent manner through the continuation of strong economic sanctions against Iraq, sanctions which are rapidly destroying the Iraqi economy and Saddam Hussein’s war-making capabilities. 

JS: No matter how much we all love many of Bernie’s policy positions, when it comes to Iraq, he is not clean. He was calling for regime change. He was supporting no-fly zones bombing and he was supporting economic sanctions that mercilessly targeted the civilian population of Iraq.

SH: You know, in the last debate, Wolf Blitzer said —

Wolf Blitzer: Senator Sanders, you have been attacking Vice President Biden’s vote on the Iraq War, but you recently acknowledged that your vote to authorize the war in Afghanistan was also a mistake.

SH: What I feel needs to happen now is that Sanders needs to continue to come clean, to say I was wrong about this, that and the other and we need to shut this whole enterprise down of falsification for war.

JS: One aspect of this that I think has not gotten enough scrutiny is the role of the Project for a New American Century, PNAC, those people who included Elliott Abrams, John Bolton. You had Robert Kagan, Zalmay Khalilzad, Bill Kristol, Richard Perle, James Woolsey, the former CIA director. All these people in January of 1998 send a letter to Bill Clinton urging him to make, removing Saddam Hussein from power, the law of the land in the United States. So, you have this neocon-led effort. They’re agitating and pressuring Clinton, lobbying lawmakers, and then you have the passage of the Iraq Liberation Act in 1998 which codified regime change as the official bipartisan policy of the United States.

BC: Over the past year, we have deepened our engagement with the forces of change in Iraq reconciling the two largest Kurdish opposition groups, beginning broadcasts of a radio free Iraq throughout the country. We will intensify that effort working with Congress to implement the Iraq Liberation Act which was recently passed.

JS: What was Bernie Sanders position on the Iraq Liberation Act that was inspired by these neocons?

SH: He voted for it and he also voted for another resolution similarly called for Iraq regime change in December of 1998, basically, effectively supporting the Desert Fox bombing campaign on the eve of Clinton’s scheduled impeachment. But he has not meaningfully come clean on that. What he’s been saying recently is I did everything that I could.

BS: I did everything I could to prevent that war. 

SH: That’s not true. He voted for the Iraq Liberation Act which the Bush-ites in 2002, 2003 were citing, as, you know, part of the legal justification for the invasion of Iraq, and he didn’t do things like call them out on their lies. In 2002, if you listen to his floor justification for his no vote on the war authorization in 2002, he doesn’t say there are no WMDs. He doesn’t say Bush is totally fabricating this, and this is all a pack of lies. I wish he did. Sanders sort of bought in to a lot of establishment rhetoric, or at least some of it.

BS: Mr. Speaker, the front page of The Washington Post today reported that all relevant U.S. intelligence agencies now say, despite what we have heard from the White House, that “Saddam Hussein is unlikely to initiate a chemical or biological attack against the United States.” Even more importantly, our intelligence agencies say that should Saddam conclude that a U.S.-led attack could no longer be deterred, he might at that point, launch a chemical or biological counter attack. In other words, there is more danger of an attack on the United States if we launch a precipitous invasion.

JS: I want to talk now in depth about the year 1998, which then culminated in December of that year, with the Clinton administration launching multiple days of airstrikes against Iraq, somewhere in the ballpark of 400 cruise missiles were launched, 600 bombs, 97 separate sites that they claimed were targeting WMD sites. And it’s important to remember number one, that Bill Clinton was facing the whole impeachment scandal. You have Democrats now using Iraq as sort of their go-to credential for how tough they are. And you had these allegations flying around that Saddam Hussein was trying to rebuild his weapons of mass destruction program. So give us a sense, Sam, of what was happening in 1998 and Joe Biden’s positions and role. 

SH: The sanctions had taken a devastating toll on Iraq. As early as 1992, you’re already seeing reports of on the order of 100,000 excess deaths, and that continued to accelerate during this period. Biden was the lead Democrat on the Foreign Relations Committee. He backed the Iraq Liberation Act to the hilt. Biden, he attempted to kneecap Scott Ritter. Scott Ritter was weapons inspector who was a militarist, but was honestly assessing that U.S. policy didn’t make sense in that the stated goals were not the actual goals.

Scott Ritter: Behind the scenes at the United Nations tell another story that the United States has undermined UNSCOM efforts through interference and manipulation, usually coming from the highest levels of the administration’s national security team to include the Secretary of State herself. 

SH: When Scott Ritter was starting to ask questions about the policy, about the timing of the policy and so on, Biden went after him at the hearing.

JB: I respectfully suggest they have responsibilities slightly above your pay grade, slightly above your pay grade, to decide whether or not to take the nation to war alone or to take the nation to war partway, or to take the nation to war halfway. That’s a real tough decision. That’s why they get paid the big bucks. That’s why they get the limos and you don’t.

SH: He actually said the people in the limousines meaning Albright and Bill Clinton, and so on. So they decided what the timing would be and the timing for any reprisal wasn’t when Iraq was out of compliance, or when they, you know, briefly kicked out the weapons inceptions, because the U.S. ultimately didn’t care about the weapons inspections, what the U.S. policy was, was about regime change, and about starving Iraq to punish it for getting out of line.

JS: So let’s just remember the timing of this. This bombing happens in December of 1998 and it is launched on the eve of Clinton’s impeachment. The Washington Post at the time, reported that Clinton was calling a number of key Democratic senators, among them Joe Biden and asking whether the bombing was going to raise a storm of charges that Clinton had wrought a war of political self preservation. Biden, according to one account, I’m quoting here, “advised Clinton to put on his raincoat — and launch anyway.”

SH: And Biden repeatedly fills that role whenever Bill Clinton bombed, whenever Bush bombed, he was there saying, yes, go for it. And then he tries to rewrite it after the fact in the case of Bush. During that critical period, that was the timing that they wanted. They wanted to fulfill the geo-strategic imperative of bombing Iraq, and Bill Clinton wanted to save his own skin. So, he started the bombing hoping that it would unfurl or indefinitely delay his scheduled impeachment. When it was made clear that the impeachment would proceed, the bombing suddenly stopped. One of the effects of that was that Bill Clinton got the weapons inspectors to withdraw from Iraq at that point, and that was effectively the end of UNSCOM, the first inspections regime. And Biden and Tim Russert and so much of the media and political establishment kept claiming that Saddam Hussein kicked out weapons inspectors. They claimed this for years afterwards. It was a total lie. UNSCOM ended not because Saddam Hussein had kicked them out. UNSCOM ended because Bill Clinton withdrew them so that he could launch his Desert Fox bombing campaign on the eve of his scheduled impeachment.

JS: Then you have the 2000 contested elections and Bush ultimately then is named president by the Supreme Court. And he has among his leading officials, obviously his Vice President, Dick Cheney, Secretary of Defense Donald Rumsfeld, and then a whole slew of people like Paul Wolfowitz, who had all been part of this neocon push for regime change during the 1990s and Bill Clinton. These guys come to power with an agenda of wanting to enact this regime change militarily in Iraq. 

So, you have Joe Biden, during that period, that crucial period, he was the chairman of the Foreign Relations Committee in the Senate. He would soon be dislodged and then he would be the ranking member, but he was the most important person in the Senate when it came to debating whether or not the United States should go to war against Iraq and whether or not the claims and this is essential, the claims of the Bush administration that Saddam had weapons, was trying to reconstitute a weapons of mass destruction program or was in possession of any sorts of WMDs. Biden was in the most crucial position in the Senate. What did he do during his tenure at Senate Foreign Relations in 2002 as the push for war was ongoing?

SH: He rigged the hearings. He rigged the hearings to totally minimize any scrutiny for the policy. He took it as a foregone conclusion that Iraq had WMDs and they had to be dislodged  and he framed it as we need to do this soon.

JS: Saddam Hussein’s pursuit of weapons of mass destruction, in my view is one of those clear dangers, even if the right response to his pursuit is not so crystal clear. One thing is clear. These weapons must be dislodged from Saddam Hussein or Saddam Hussein must be dislodged from power.

SH: He, you know, wouldn’t allow serious inspectors like Scott Ritter, who was now increasingly critical of the policies, and how nefarious it was. Biden portrayed as did a lot of people in the media the oil for food program, not as a lifeline for Iraqis but as a scam by Saddam Hussein. 

JB: Saddam is dangerous, the world would be a better place without him. But the reason he poses a growing danger to the United States and its allies is that he possesses chemical and biological weapons and is seeking with his $2 billion a year illegally skimmed from the U.N. fund for food, oil for food program, for peace program that he is seeking nuclear weapons. 

SH: It’s important to note the vote happened in October, Iraq agreed in September to let the weapons inspectors in. Institute for Public Accuracy, where I work, went to Iraq met with Tariq Aziz, the deputy Prime Minister, functionally the Prime Minister of Iraq, and immediately after that delegation, they agreed to let the weapons inspectors back in. And Biden to this day continues to claim in debate after debate that he voted so that the weapons inspectors could get in there. When Iraq put out massive troves of documentation about their former weapons of mass destruction program, Biden pooh-poohed as a total bunch of malarkey and this is all nothing and this is Saddam Hussein lying, claiming that he doesn’t have weapons of mass destruction. So Biden’s there at critical points to facilitate and enable Clinton and especially Bush to do the deed. I mean, Bush pulled the trigger. But Biden gave him the gun. He put the bullets in the gun.

JS: During the Democratic debates in July of last year, Joe Biden claimed that he opposed the Iraq war —

JB: From the moment shock and awe started, from that moment, I was opposed to the effort and I was outspoken as much as anyone at all in the Congress and administration.

JS: Then in the most recent Democratic debate, Joe Biden had this to say:

JB: I said 13 years ago, it was a mistake to give the president the authority to go to war if in fact, he couldn’t get inspectors in to Iraq to stop what thought to be the attempt to get a nuclear weapon. It was a mistake and I acknowledge that.

JS: Your response to these two comments that Joe Biden has made during these debates?

SH: You know, I think people hear the word mistake and they want to let it go. Part of the problem is that other candidates haven’t held him to task. For example, Tulsi Gabbard when she had a clear shot at scrutinizing him during one of the debates, said, well, he said it was a mistake and I accept that. 

Considering the access that Biden had, considering that he organized the hearings that led the way to war, let’s say that he was duped by Bush, OK? Let’s say that Bush somehow tricked Biden, this decades long veteran senator, head of the Foreign Relations Committee into saying, yeah, we’re not really going to attack Iraq, we’re just going to say that we’re going to do it so that the inspections can happen for real. It’s a ridiculous thing to assume because let’s remember, the inspections were stopped by the United States in 1998. Everybody blamed Iraq, especially people like Biden, but let’s put all of that aside. Then Biden would have acted like he’s claiming he did. As soon as the bombs dropped, Biden would have said, hold on, you said you wouldn’t do that. But that’s not what he did. He co-sponsored a resolution backing Bush. He made numerous statements in the weeks and months after the war, saying that he supported the president and the president is really popular and continuing his false claims about Iraq at the Brookings Institution. 

JS: This was from July of 2003, Joe Biden speaking at the Brookings Institution. He said the following:

JB: Some of my own party have said that was a mistake to go to Iraq in the first place and believe that is not worth the cost whatever benefit may flow from our engagement in Iraq. But the cost of not acting against Saddam, I think would have been much greater. And so is the cost, and so will be the cost of not finishing this job.

SH: You know, the Bush line was we’re going to go in there, we’re going to be greeted as liberators and all of the Iraqis are going to give us you know, flowers and sweets. And Biden knew that that was a lie and was attempting to prepare the public for the prolonged war that they actually wanted to wage that indeed goes on to this day. Biden totally helped facilitate that at that critical time. He only started saying that it was a mistake in 2005. And why was it a mistake then? Because the occupation wasn’t going well, because Iraqis were going into facilities and blowing themselves up.

JS: Sam, you know, in addition to Iraq, which, you know, Bernie does hammer away on Biden, in general terms, you know, his vote in favor of that war. But you never hear a critique of what happened during eight years of Obama that enabled Trump to do all sorts of things, including the assassination of General Qassim Suleimani, the fact that they radically ratcheted up the use of drone strikes, that they openly justified assassinating people in countries around the world, and that they used very secretive processes not subjected to any sort of oversight or public scrutiny to develop kill lists. I wonder if we will ever see a moment where any of the Democratic candidates take on Joe Biden for his eight years in building up what is effectively an extrajudicial, parallel justice system subjected to no scrutiny where people can just be whacked around the world with no oversight or accountability whatsoever.

SH: A deeper lesson is to say, what should people’s attitudes be towards a Sanders or a Warren administration? If people get swept up in their infatuation like they did for Obama, it’s going to pose another opportunity for the establishment to get their people in there and repeat the cycle. People need to keep their eye on the ball and scrutinize Sanders or Warren or anybody else, Tulsi Gabbard. And the leadership has to come from independent media and intelligent activism. It can’t come from people you know, looking to a given candidate who they feel a need to depict as pure, or idyllic. 

Between the Obama administration and the Trump administration, it’s from both sides of the political spectrum have been brought to a dead end. That is Obama, you know, branded himself as anti-war and ended up adopting the policies of the pro-war establishment. And Trump from the other side, branded himself as you know, basically anti-war, isolationist, America first-er. So similarly, right-wing impulses against regime change wars and constant wars and so on have similarly been led to a dead end with what ultimately became a highly interventionist Trump administration, bringing in people like Bolton and Elliott Abrams and Pompeo and Haspel and so on. This is a war cabinet, just as Obama fundamentally had a war cabinet, slightly different cast, but both ends of the political spectrum ended up going down a garden path where the establishment in effect ended up running virtually all the foreign policy.

JS: All right, we’re going to leave it there. Sam Husseini, thank you very much for joining us.

SH: It’s been a pleasure to be with you.

JS: Sam Husseini is a senior analyst at the Institute for Public Accuracy. His latest piece is called “Joe Biden won’t tell the truth about his Iraq war record.”  He is on Twitter at @Samhusseini.

[Music interlude.]

JS: And that does it for this week’s show. You can follow us on Twitter @intercepted and Instagram @InterceptedPodcast. If you like what we do, support our show by going to TheIntercept.com/join to become a sustaining member. Intercepted is a production of First Look Media and The Intercept. Our lead producer is Jack D’Isidoro. Our producer is Laura Flynn. Elise Swain is our associate producer and graphic designer. Betsy Reed is editor in chief of The Intercept. Rick Kwan mixed the show. Transcription for this program is done by Nuria Marquez Martinez. Our music, as always, was composed by DJ Spooky. 

Until next time, I’m Jeremy Scahill.

Correction: January 23, 2020, 4:30 p.m. ET
In an earlier version of this podcast episode, host Jeremy Scahill referred to former President Harry Truman by the wrong first name. The audio has been updated to remove the reference and include credits to this week’s show.

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