16 Years Later, How the Press That Sold the Iraq War Got Away With It

By Matt Taibbi, Rolling Stone

24 March 19

In an excerpt from his new book Hate Inc., Matt Taibbi looks back at how the media built new lies to cover their early ones

ixteen years ago this week, the United States invaded Iraq. We went in on an unconvincing excuse, articulated by George W. Bush in a speech days before invasion:

“Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised. This regime has already used weapons of mass destruction against Iraq’s neighbors and against Iraq’s people.”

To the lie about the possession of WMDs, Bush added a few more: that Hussein “trained and harbored terrorists, including operatives of al-Qaeda.” Moreover, left unchecked, those Saddam-supplied terrorists could “kill hundreds of thousands of innocent people in our country.”

The disaster that followed cost over a hundred-thousand lives just in Iraq and drained north of $2 trillion from the budget. Once we were in and the “most lethal weapons ever devised” were not discovered, it quickly became obvious that large numbers of people at the highest levels of society had either lied, screwed up, or both.

The news media appropriately caught a huge chunk of the blame. But a public that had been fooled once was not prepared for the multiple rounds of post-invasion deceptions that followed, issued by many of the same pols and press actors. These were designed to rewrite history in real time, creating new legends that have now lasted 16 years.

These have allowed people like Bush spokesman Ari Fleischer — through whose mouth many of the chief lies of the era flowed — to come out this week and claim it was a “myth” that “Bush lied, people died.”

The myths had enormous utility to the working press, whose gargantuan errors have been re-cast as honest mistakes of judgment. A lot of the people who made those mistakes are still occupying prominent positions, their credibility undamaged thanks to a new legend best articulated by New Yorker editor David Remnick, who later scoffed, “Nobody got that story completely right.”

Nobody except the record number of people who marched against the war on February 15, 2003 — conservative estimates placed it between six and ten million worldwide (I marched in D.C.). Every one of those people was way ahead of Remnick.

None were marching because they disbelieved the WMD claims. Most marched because they saw the WMD issue as irrelevant at best, an insultingly thin excuse for a wrong war that had some other, darker, still-unreleased explanation.

In my forthcoming book Hate Inc. (which I’ve been publishing in serial form here), I’ve been looking at the major media deceptions of this century. WMD became the archetype of a modern propaganda campaign, a key component of which is the rewarding of the people who sell the lie.

This was accomplished after Iraq via a series of deceptions tweaked over and over, myths piled atop myths. In order, the biggest surviving Iraq lies:

Only a small portion of the industry screwed up.

In the popular imagination, the case for war was driven by a bunch of Republicans and one over-caffeinated New York Times reporter named Judith Miller. Even the attempts to make comprehensive lists of Iraq cheerleaders post-invasion inevitably focus on usual suspects like Fleischer, current Trump official John Bolton, neoconservatives like Max Boot, David Frum, and Bill Kristol, and winger goons like Sean Hannity, Rush Limbaugh and Ann Coulter. But we expect the worst from such people.

It’s been forgotten this was actually a business-wide consensus, which included the enthusiastic participation of a blue-state intelligentsia. The New Yorker of Remnick, who himself wrote a piece called “Making the Case,” was a source of many of the most ferocious pro-invasion pieces, including a pair written by current Atlantic editor Jeffrey Goldberg, one of a number of WMD hawks who failed up after the war case fell apart. Other prominent Democrat voices like Ezra Klein, Jonathan Chait, and even quasi-skeptic Nick Kristof (who denounced war critics for calling Bush a liar) were on board, as a Full Metal Jacket character put it, “for the big win.”

The Washington Post and New York Times were key editorial-page drivers of the conflict; MSNBC unhired Phil Donahue and Jesse Ventura over their war skepticism; CNN flooded the airwaves with generals and ex-Pentagon stoolies, and broadcast outlets ABC, CBS, NBC and PBS stacked the deck even worse: In a two-week period before the invasion, the networks had just one American guest out of 267 who questioned the war, according to Fairness and Accuracy in Reporting.

Exactly one major news organization refused to pick up pom-poms, the Knight-Ridder newspaper chain. All the other major outlets, whether they ostensibly catered to Republican or Democratic audiences, sold the war lie. The bipartisan nature of the deception has been obscured in history by a second legend:

The war was about WMDs.

We now know, from leaks like Britain’s Downing Street memos and the U.K.’s later Chilcot report, that the WMD issue was a concoction, designed for the narrow purpose of giving Tony Blair political cover to support Bush’s real reason for war, “regime change.”

Few in the media noticed at the time that key neoconservatives close to the Bush administration like Kristol and Robert Kagan (who are still more than welcome on cable today), had been articulating a goofball global domination plan called “benevolent hegemony” in public dating back to the mid- and late-1990s.

The idea was, now that the Soviets were gone, the U.S. should be more aggressive, not less. We should bail on the “peace dividend” Bill Clinton touted in the early nineties. We should also, neoconservatives said, resist the nationalist version of the “peace dividend,” the urge to concentrate “energies at home” in policies like Pat Buchanan’s “America First” plan.

Instead, we should secure a “preponderance of influence” over all countries, having a plan for “change of regime” for any country not under our control, from Cuba to Iran to China.

How to justify this dressed-up version of “pre-emptive war”? We know from Bush speechwriter David Frum’s bootlicking account of having served that administration, The Right Man, that the “Axis of Evil” concept was something Frum found flipping through history books about World War II.

There, he came up with the idea that America’s enemies were so crazy with hatred for us, they couldn’t be trusted to behave rationally even if threatened with annihilation. “If deterrence worked,” he noted, “there would never be a Pearl Harbor.”

Tony Blair was fine with regime change, but felt he couldn’t sell the concept politically. In 2009 he admitted this and said he’d have “deployed” different arguments without WMD if he had it to do over. From the Chilcot inquiry we know his foreign policy advisor David Manning had dinner with Condoleezza Rice in March of 2002, and afterward wrote a damning memo to Blair.

“I said that you would not budge in your support for regime change,” he wrote. “But you had to manage a press, a Parliament and a public opinion that was very different.”

So they cooked up the idea of invading Iraq as a response to longstanding violations of a UN inspections regime, a reason that they hoped would provide Blair with the fig leaf of UN Security Council approval.

Later, British intelligence officials like Sir John Scarlett worried the public would not buy a case for war against Iraq because Iraq wasn’t “exceptional” even compared to other states like Libya, Iran, and North Korea.

This means all the marchers were right to ask all those obvious questions about the war from the start.

Why were we invading a country with no connection to 9/11? If this had something to do with supporting terrorists, why were we invading a state ruled by a secular Baathist dictator, a type hated by religious extremists like bin Laden almost as much as the United States is hated? If rogue states with weapons were the problem, why Iraq and not Iran, Libya, or especially North Korea? If WMD were the issue, why not wait until inspections were finished?

Millions of ordinary people, without intelligence sources or experiences traveling in the Middle East or access to satellite photos, identified the key questions long before we went to war. One of the most damning revelations of the Chilcot report is that British officials were extremely worried the case was so thin, journalists would see right through it.

An assistant to Blair spokesman Alistair Campbell named Phillip Bassett wrote on September 11, 2002: “Think we’re in trouble with this.” Foreign Office communications chief John Williams suggested he and his colleagues target “people, as opposed to journalists,” because the latter would surely see “There is no ‘killer fact… that proves Saddam must be taken on now.”

They had it backwards. Large portions of the public were skeptical from the start.

Only reporters were dumb enough, or dishonest enough, to eat the bait about WMDs. Moreover, American reporters on their own volition rallied to the idea that Saddam was a Hitler-Satan whose “exceptional” evil needed immediate extinguishing.

Goldberg: “Saddam Hussein is a figure of singular repugnance, and singular danger… No one else comes close… to matching his extraordinary and variegated record of malevolence…” Chait: “He’s in league with a Stalin in terms of internal repression.” Remnick said he was a “modern Nebuchadnezzar II” who’d vowed to “vanquish the United States, and rule over a united Arab world.”

But even that wasn’t the worst issue:

The deception wasn’t about WMDs or Iraq at all, but about domestic attitudes.

After we invaded, and the WMD hunt turned out to be a crock, nearly all of our professional chin-scratchers found ways to address their errors. Most followed a script: I was young (Ezra Klein literally said, “I was young”), I believed the intel, and on the narrow point of WMDs being in Iraq, I screwed up.

None walked back the rest of the propaganda, which is why even as the case for invading Iraq fell apart, our presence in the Mideast expanded. While Judith Miller became a national punchline, the “continuing exertion of American influence” became conventional wisdom.

Defense budgets exploded. NATO expanded. The concept of a “peace dividend” faded to the point where few remember it ever existed. We now maintain a vast global archipelago of secret prisons, routinely cross borders in violation of international law using drones, and today have military bases in 80 countries, to support active combat operations in at least seven nations (most Americans don’t even know which ones).

The WMD episode is remembered as a grotesque journalistic failure, one that led to disastrous war that spawned ISIS. But none of the press actors who sold the invasion seem sorry about the revolutionary new policies that error willed into being. They are specifically not regretful about helping create a continually-expanding Fortress America with bases everywhere that topples regimes left and right, with or without congressional or UN approval.

They’re sorry about Iraq, maybe, but as Chait later said, “Libya was not Iraq.” This he said to “liberal anti-interventionists,” in explaining why “I have not embraced their worldview.”

We had successfully “contained” the much more powerful Soviet Union for ages, to say nothing of smaller, weaker countries subject to flyover regimes like Iraq. To start the war, Americans had to be talked out of the idea that these policies were still viable.

To this end, people like Remnick told us “a return to a hollow pursuit of containment will be the most dangerous option of all.” Fred Hiatt’s Washington Post editorial page warned “not poking the hornet’s nest” was a “strategy of accommodation, half-measures and wishful thinking.”

Today we mostly laugh about serial word-strangler columnist Thomas Friedman of the Times, but he was a key voice. His infamous “Chicken a l’Iraq” editorial insisted America couldn’t risk containment and had to be willing to be as unpredictable as rogue enemies – that in a game of realpolitik chicken, we had to throw out our steering wheel and be “ready to invade Iraq tomorrow, alone.”

The first rule of modern commercial media is you’re allowed to screw up, in concert. There’s no risk in being wrong within a prevailing narrative. That’s why the chief offenders kept perches or failed up. The job isn’t about getting facts right, it’s about getting narratives right, and being willing to eat errors discovered in service of pushing the right subtext.

Failure to self-audit after Iraq led the media business to mangle of a series of subsequent stories. From the still-misreported financial crisis of 2008 to the failure to take the rise of Donald Trump as an electoral phenomenon seriously to the increasingly sloppy coverage of our hyper-aggressive foreign policies, we’ve gotten very loose with facts and data, knowing there’s no downside to certain kinds of misses.

A British non-profit called Reprieve years ago even discovered journalists were routinely repeating government assertions that certain terror suspects had been killed in drone strikes, failing to notice the same suspects had been reported killed years before or in different countries, sometimes not even twice but three or four times.

We’re particularly bad when it comes to regime-change stories, and have seen this just recently.

Multiple news organizations, including the New York Times, reported forces loyal to Venezuela’s Maduro (our latest regime change target) burned food aid sent by Western humanitarian convoys. It turned out the opposition burned the cargo. A CNN reporter said it was a “classic case of how misinformation spreads… from an unconfirmed rumor… to the mass media,” failing to realize the screwup started when a CNN crew claimed they saw the burning episode.

This slapstick idiocy was like something out of Evelyn Waugh. It was so bad the Onion ran a story called, “New York Times Corrects Story By Admitting They Burned Venezuelan Aid Convoy.”

The press in the wake of the WMD affair assumed the safety-in-numbers instincts of herd animals: like wildebeest, the instant 51% of the pack decides to run in a direction, they all run that way, even if it means bounding off a factual cliff. That the landscape is currently split into two different sets of wildebeest is not much of a comfort. Reporting these days is more a matter of manufactured, behind-the-scenes consensus building than an individuated process of following facts wherever they lead, no matter how inconvenient.

The damage this story did to our collective reputations is still poorly understood in the business. In fact, “Why do they hate us?” stories are one of an increasing number of feature ideas we routinely botch. We’ll never get rid of the scarlet letter from those years until we face how bad it was, and it was so much worse than we’re admitting, even now.

The Supreme Court Is Seizing Power From the Presidency Because Donald Trump Is Stupid

By Ian Millhiser, ThinkProgress

24 March 19

Trump is being used by conservative elites, and the presidency will suffer permanent damage because of it.

ustice Antonin Scalia’s greatest gift to the conservative movement was teaching judges that humility is for suckers.

Scalia, of course, is best known for popularizing originalism — the belief that the only legitimate way to interpret the Constitution is to read its words as they were originally understood by the framers’ contemporaries. But Scalia was neither a historian nor a linguist. He lacked the training necessary to effectively probe how people two centuries ago might have understood a particular phrase.

When confronted with a difficult question of how a particular provision of the Constitution was originally understood, Scalia did not familiarize himself with the relevant historiographies and then comprehensively examine original documents to try to find an answer. Even if he’d wanted to do so, he didn’t have the time. The Supreme Court spends months, not years or decades, considering individual cases.

The historical questions Scalia claimed to be able to answer were often the sorts of questions that scholars ponder for their entire careers, only to retire with a bevy of new, equally vexing questions. Scalia’s originalism was the Dunning-Kruger Effect placed in the hands of one of the nation’s most powerful men, and given free rein to decide how we should read our Constitution.

On Wednesday, the Supreme Court will hear another case arising from Scalia’s unconscious incompetence — except that Kisor v. Wilkie is not a case about a lawyer pretending to be an historian. It’s a case about lawyers claiming to be experts in human psychology.

And it is also a case about the world’s most famous monument to the Dunning-Kruger Effect in action. Scalia may have helped conservative legal elites rally around the plaintiff’s arguments in Kisor, which are fundamentally about shifting power from the executive branch and towards the judiciary. But it took a president who was too stupid to understand what he was doing to give James Kisor the five votes he’ll need to prevail in the Supreme Court.

Donald Trump will almost certainly usher in an era of much weaker presidents and far stronger judges. He’s complicit in a massive transfer of power from an elected branch of government to the one unelected branch. And he’s too dumb to realize what he’s done.

Deceptively important

On the surface, Kisor involves the sort of hypertechnical issue that primarily interests attorneys practicing administrative law. But it’s a hugely important case about the balance of power between relatively accountable federal agencies and a completely unaccountable judiciary. Kisor is also likely to be the first in a wave of decisions consolidating power within the judiciary now that the Supreme Court is controlled by hardline conservatives.

Numerous federal laws announce a broad policy, then empower a federal agency to fill in the details of that policy through “regulations.” The Clean Air Act, for example, requires certain power plants to use “the best system of emission reduction” that is both technologically and economically feasible to use, but it leaves the task of determining what the “best system” is at any particular moment to the Environmental Protection Agency. The Affordable Care Act requires plans sold in the Obamacare exchanges to offer coverage “equal to the scope of benefits provided under a typical employer plan,” but leaves the task of determining what the scope of such benefits are to federal agencies. The particular regulations at issue in Kisor lay out procedures that the Department of Veterans Affairs uses to assess whether a particular veteran is entitled to benefits.

Thus, Congress sets federal law. But as technology advances or as employers start behaving differently throughout the nation, federal agencies can adapt their regulations to ensure that the broad policy announced by Congress is still being served.

Kisor asks what should happen when an agency’s regulation is sufficiently ambiguous that it is unclear how it should apply in a particular case. Nearly three-quarters of a century ago, the Supreme Court held that, when a regulation is unclear, the agency’s interpretation of its own regulation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” This holding was more recently reaffirmed in Justice Scalia’s unanimous decision in Auer v. Robbins.

Auer, moreover, is one of a web of decisions holding that, as a general rule, courts should defer to elected officials — or, at least, to federal regulators who are accountable to elected officials — when the answer to a legal question is unclear. The Supreme Court’s decision in Chevron v. Natural Resources Defense Council, for example, requires courts to defer to an agency’s reading of an ambiguous statute when it is unclear whether that law permits the agency to promulgate a particular regulation.

As Justice John Paul Stevens explained in Chevron, this deferential rule serves two purposes. It fosters better rulemaking, because specialized agencies typically know more about the areas of the law that they oversee than generalist judges. And it also fosters democracy. “While agencies are not directly accountable to the people,” Justice Stevens wrote, “the Chief Executive is.” And it is better to vest policy decisions in agency officials who are democratically accountable, albeit indirectly, than to vest those decisions in judges with lifetime appointments.

Where you stand depends on who is in charge

For years, the Supreme Court’s right flank included some of the staunchest defenders of judicial deference to agencies. Justice Scalia didn’t just write the Auer decision, he was a vigorous defender of Chevron. Among other things, Scalia said in a 1989 lecture published in the Duke Law Journal, Chevron promotes “flexibility, and appropriate political participation, in the administrative process.”

“One of the major disadvantages of having the courts resolve ambiguities is that they resolve them for ever and ever,” Scalia warned. But Chevron permits agencies to adapt their regulations as they discover new facts or as the world changes in ways that justify different legal rules.

There was also an important political reason why Republicans would support Chevron when it was handed down in 1984. As Northwestern law professor Jide O. Nzelibe explained to a 2013 gathering of the conservative Federalist Society, when Chervon was decided, America was in a “deregulatory phase.” President Reagan ran on a promise to “break the growth of government,” and Chevron meant that the courts would not say “in the name of the law, don’t deregulate.”

The “flexibility” and “appropriate political participation” that Scalia spoke of in 1989 was the power of conservative Reagan appointees to prevail upon their agencies to cut back on regulation. And those officials craved a deferential judiciary because it meant that they could deregulate without fearing that the courts would stop them.

By 2013, however, voices like Nzelibe’s — or Scalia’s, for that matter — were on the wane within the Federalist Society. Reagan was no longer president, President Obama was. The courts were far more conservative. And, thanks to gerrymandering, Republicans controlled the House of Representatives — despite the fact that Democratic candidates for the House received more votes than their Republican counterparts in 2012.

Obama, in other words, could not pursue a legislative agenda. But he could still rely on federal agencies’ existing power to regulate in order to set policy. Cases like Chevron and Auer were now boons to liberalism just as much as they’d been boons to conservatism under Reagan.

And so the Federalist Society spent much of Obama’s second term promoting ambitious — and often outlandish — proposals to shrink agency power. Chevron and Auer became villains in the eyes of conservative lawyers. And they remain villains even after a Republican accidentally won the presidency in 2016.

Presidents come and go. A Democrat could very well control the executive branch in 2021. But gerrymandering and Senate malapportionment still make it very difficult for Democrats to gain control of Congress. And the Supreme Court is close to being a wholly owned subsidiary of the Federalist Society. Why wouldn’t Republicans want to transfer power from the executive to the judiciary at this moment in time?

Triumph of the stupid

By 2016, conservative legal elites widely embraced the case against Chevron and Auer. But these elites still faced a serious problem if they hoped to secure five votes on the Supreme Court to roll back these decisions. While conservative judges, lawyers, and legal academics had every reason to support a wholesale transfer of power from the president to the judiciary, presidents typically aren’t so keen on giving up their own power. And the president gets to decide who is nominated to sit on the Supreme Court.

Which is why Trump’s triumphant second-place finish in 2016 was such a coup for the Federalist Society. Donald Trump is a man who spends his mornings livetweeting Fox News. He routinely makes public statements that undermine the positions his administration took in federal courts. He sparks international incidents by tweeting about how his, um, button, is bigger than Kim Jong Un’s.

North Korean Leader Kim Jong Un just stated that the “Nuclear Button is on his desk at all times.” Will someone from his depleted and food starved regime please inform him that I too have a Nuclear Button, but it is a much bigger & more powerful one than his, and my Button works!

— Donald J. Trump (@realDonaldTrump) January 3, 2018

Donald Trump is, to put it bluntly, too stupid to understand the nuances of federal administrative law, and he shows no interest in learning about such topics, regardless.

Trump is thus the perfect vessel for a conservative legal movement that wants to centralize power in the one unelected branch of government. A different Republican president might have balked at an agenda that would have diminished the presidency as an institution. But Trump is too busy watching Fox and Friends to think about such things, so he largely delegated the judicial selection process to the Federalist Society — just as he promised on the campaign trail.

As a lower court judge, Trump’s first Supreme Court nominee, Neil Gorsuch, wrote an opinion claiming that Chevron permits “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” This opinion, according to David Kaplan’s book The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution, “proved decisive in cinching” the Trump White House’s decision to choose Gorsuch.

Similarly, as a lower court judge, Brett Kavanaugh was known for his skeptical views of agency power generally — and especially for his decisions undercutting President Obama’s EPA. He’s all but certain to join the fight to transfer agencies’ power to the courts.

Gorsuch and Kavanaugh, moreover, will almost certainly have three allies in this fight. As Justice Clarence Thomas noted in a 2016 opinion, he, Chief Justice John Roberts and Justice Samuel Alito have all suggested that Auer should be reconsidered. Roberts already carved a big chunk of Chevron away in his 2015 opinion in King v. Burwell. The outcome in Kisor — and in future cases seeking to transfer power from federal agencies to the judiciary — is hardly a cliffhanger.

The death of humility

When the Supreme Court almost certainly overrules Auer in its Kisor opinion, it’s unlikely to be upfront about the shifting political winds that brought it to that decision. As Alex Pareene writes, “coming up with a principles-based reason for a decision that will have a politically or materially beneficial outcome for you or your side is a cornerstone of conservative legal theory.” The whole point of interpretive methods like Scalian originalism is that they allow judges to pass off conservative, results-driven decisions as rooted in neutral legal principles.

And so, true to form, Scalia devised a seemingly principled reason to reject his own opinion in Auer. “When an agency interprets its own rules,” Scalia wrote in a 2013 concurring opinion, “the incentive is to speak vaguely and broadly, so as to retain a ‘flexibility’ that will enable ‘clarification’ with retroactive effect.”

Auer, Scalia claimed, encourages agencies to intentionally write ambiguous regulations so that they can maximize their own ability to reinterpret those rules in the future.

It’s the sort of amateur psychology that makes sense if you think about it for five minutes, but that makes no sense at all if you have any understanding of how partisan politics works. Why would the Obama administration intentionally write a vague rule that could be interpreted to do little or nothing by the Trump administration? Why, for that matter, would the Trump administration write a vague rule that could enable a future Democratic administration to read it liberally? Agency leaders have every incentive to write regulations as clearly and as precisely as possible, because they don’t want their work to be sabotaged by future officials (or future judges, for that matter) who are hostile to the regulation’s goals.

Moreover, as Daniel Walters writes in the Columbia Law Review, there’s no empirical evidence that agency leaders behave in the way Scalia suggests. To the contrary, Walters’ own research cuts in the opposite direction.

I report findings from my application of computational linguistics methods to track the degree of vagueness to agency rules after exposure to Auer. I approach the measurement question carefully, using a variety of validated text based measures. For instance, one such measure comprises an index of paradigmatically vague legal terms, such as reasonable, appropriate, and prudent.

Applying the multiple measures to over 1,200 economically significant rules from 1982 to 2016, I find that agencies wrote no more vaguely after Auer was decided in 1997. I likewise find no evidence that agencies’ win rates under Auer or their exposure to Auer-related litigation in federal court had any impact on the clarity and specificity of their rules. In fact, if anything, the evidence suggests that agencies on the whole have been writing with greater clarity since Auer’s profile has grown.

The genius of decisions like Chevron and Auer is that they recognize the limits of federal judges. Judges are not historians, linguists, or psychologists. They don’t even have specialized knowledge in every area of the law. They are unelected officials who are often tasked with solving legal questions where there are no clear answers.

In these most difficult cases, Chevron and Auer instruct judges to behave with humility — to defer to individuals who, by virtue of their superior knowledge or their democratic accountability, are better suited to shape policy than the judges themselves.

But humility is no longer fashionable on the Supreme Court, and it is certainly out of fashion within the Federalist Society. Decisions like Chevron and Auer prevent a conservative oligarchy from consolidating power in the one branch of government the voters cannot rebuke. And, for that reason, neither decision is likely to survive very much longer.