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Intelligence Information and Judicial Evidentiary Standards 811 INTELLIGENCE INFORMATION AND JUDICIAL EVIDENTIARY STANDARDS ROBERT BEJESKYt I. INTRODUCTION................................... 811 II. FACT FINDERS .................................... 813 III. NUCLEAR CAPABILITY ........................... 820 IV. BIOLOGICAL WEAPONS........................... 836 V. CHEMICAL WEAPONS ............................ 845 VI. DELIVERY SYSTEMS .............................. 851 VII. M ENS REA ......................................... 854 VIII. INVOLVEMENT WITH TERRORISM ............... 855 IX. CONCLUSION ..................................... 875 I. INTRODUCTION Senator Kennedy called it "reprehensible" that the "administra- tion distorted, misrepresented and manipulated the intelligence" on Iraq.' Louis Fisher wrote: "There should be no question that the pre- war information was distorted, hyped, and fabricated. The October 2002 [National Intelligence Estimate ("NIE")] prepared by the intelli- gence community is plain evidence of that . ."2 University of Pitts- burgh President Jem Spectar contended that the "Bush administration exploited, furthered, manipulated or thrived on the public's confusion .... "3 Professor Yamamoto explained, "Many have documented this ad- ministration's penchant for deliberate misrepresentations on national security-in blunt terms, [and] for lying to the American people about threats at home and abroad."4 Harvard Emeritus Professor Stanley t MA Political Science (Michigan), MA Applied Economics (Michigan), LL.M. In- ternational Law (Georgetown). The author has taught courses in International Law at Cooley Law School and for the Department of Political Science at the University of Michigan, courses in American Government and Constitutional Law at Alma College, and courses in Business Law at Central Michigan University and the University of Miami. 1. J M Spectar, Beyond the Rubicon: PresidentialLeadership, InternationalLaw & The Use of Force in the Long Hard Slog, 22 CoN. J. Irr'iL L. 47, 90 (2006). 2. Louis Fisher, Lost ConstitutionalMoorings: Recovering the War Power, 81 IND. L.J. 1200, 1253 (2006); Spectar, supra note 1, at 87 (the intelligence conclusions were based on "flimsy, weak and opportunistic circumstantial evidence"). 3. Spectar, supra note 1, at 90. 4. Eric K Yamamoto, White (House)Lies: Why the PublicMust Compel the Courts to Hold the President Accountable for National Security Abuses, 68 LAw & CoNTEMP. PROa. 285, 286-87 (2005) (citing list of books); see generally David L. Altheide, The Mass Media, Crime and Terrorism, 4 J. INT'L CRIM. JUST. 982 (2006). 812 CREIGHTON LAW REVIEW [Vol. 44 Hoffman perceived a similar administration penchant and reminded that "if you repeat a lie often enough, people swallow it."5 In 2008, former Congresswoman Holtzman stated that a "ground for impeach- ing President Bush has do with his use of fraud and deception to drive the United States into war in Iraq."6 Senator Rockefeller, the Senate Select Committee on Intelligence ("SSCI") Chairman, remarked: "In making the case for war, the Administration repeatedly presented in- telligence as fact when in reality it was unsubstantiated, contradicted, or even non-existent ... Sadly, the Bush Administration led the na- tion into war under false pretenses."7 Alternatively, four months after the invasion, President Bush maintained: "We based our decisions on good, sound intelligence . and the truth will say that this intelligence was good intelligence. There's no doubt in my mind."8 British Prime Minister Blair affirmed that "every fiber of instinct and conviction I have" confirms that the decision was correct.9 National Security Advisor Rice referred to the evidence by stating that "I've read a lot of intelligence cases over my almost 20 years now in this field, and this was a very strong case."' 0 In 2007, former Central Intelligence Agency ("CIA") Director Tenet addressed the fallout by distinguishing between domestic court evi- dentiary standards and the process of gathering, analyzing, and using intelligence information in producing national security determina- tions by noting: "There was lots of data. There's lots of technical data .... So you put all of this together, it's not evidence in the court of law." 1 This Article analyzes the data to assess competing perceptions. 5. News World: The World According to Bush (CBC news television broadcast Oct. 17, 2004), availableat http://www.cbc.ca/passionateeyesunday/feature 171004.html (In- terview with Hoffman). 6. Hon. Elizabeth Holtzman, Impeachment as a Remedy, 62 U. MIAI L. REV. 213, 218 (2008). 7. SEN. SELECT COMM. ON INTELLIGENCE, 110TH CONG., PRESS RELEASE OF INTELLI. GENCE COMMITTEE (2008), available at http://intelligence.senate.gov/press/re- cord.cfm?id=298775 [hereinafter SSCI/PR]; Walter Pincus, Records Could Shed Light on Iraq Group, WASH. PosT, June 9, 2008. 8. Blair, Bush Defend War, CNN (July 18, 2003), available at http://edition.cnn. com/2003/US/07/17/blair/. 9. Id. 10. NewsHour, Newsmaker: Condoleezza Rice (PBS television broadcast July 30, 2003), available at http://www.pbs.org/newshour/bb/white-house/july-dec03/rice-7-30. html. 11. 60 Minutes, George Tenet: At the Center of the Storm (CBS television broadcast Apr. 29, 2007), available at http://www.cbsnews.com/stories/2007/04/25/60minutes/ main2728375_page5.shtml [hereinafter 60 Minutes, George Tenet]. 2011] INTELLIGENCE INFORMATION 813 II. FACT FINDERS A. EVIDENTIARY STANDARDS Judicial opinions and national security estimates are similar in the process of applying facts to decision-making criteria. In common law systems, parties gather supportive information that must sur- mount hearsay hurdles, document authentication requirements, and other evidentiary filters during court processes. Judges and juries render decisions by weighing verified direct and probative circumstan- tial evidence pursuant to standards, such as "preponderance" in civil cases and "beyond a reasonable doubt" in criminal cases. Decisions alleviate, remedy, occasionally preempt disputes, and punish offenders. Within the national security apparatus, the Intelligence Commu- nity ("IC"), which consists of multiple agencies/departments, including the CIA, the Pentagon Defense Intelligence Agency ("DIA"), and the State Department Bureau of Intelligence Research ("INR"), collects in- formation, much like a civil law system of investigatory judges. IC analysts assess and weigh evidence as the judge and jury and present conclusions, often with probability guidelines, such as "High Confi- dence," "Moderate Confidence," or "Low Confidence." 12 Political ac- tors use estimates to make foreign policy decisions, invoke Constitutional war powers,' 3 and assess the behavior of other states pursuant to treaty rules and dominant norms. Despite analytical similarities in applying facts to decision-mak- ing, there are important distinctions between judicial and national se- curity processes. For example, the party that garners the requisite weight of evidence and presents more compelling arguments will win 12. SEN. SELECT COMM. ON INTELLIGENCE, 108TH CONG., REPORT ON THE U.S. INTEL- LIGENCE COMMUNITY'S PREWAR ASSESSMENTS ON IRAQ 185 (2004) [hereinafter SSCI/ 2004]. The 2007 NIE on Iran employs stronger caveat language than the NIE on Iraq. The 2007 NIE states: "We use phrases such as we judge, we assess, and we estimate- and probabilistic terms such as probably and likely-to convey analytical assessments and judgments. Such statements are not facts, proof, or knowledge." OFFICE OF THE DIR. OF NAT'L INTELLIGENCE, NAT'L INTELLIGENCE COUNCIL, IRAN: NUCLEAR INTENTIONS AND CAPABILITIES, NATIONAL INTELLIGENCE ESTIMATE 3 (2007), available at http://www. globalsecurity.org/jhtml/jframe.html#http://www.globalsecurity.org/intell/library/re- ports/2007/nieiran-nuclear_20071203.pdf (last visited Aug. 6, 2011). "A Na- tional Intelligence Estimate is the IC's most authoritative written judgment concerning a specific national security issue." SSCI/2004, supra, at 9. 13. See Kristan J. Wheaton & Michael T. Beerbower, Towards a New Definition of Intelligence, 17 STAN. L. & POL'Y REV. 319, 329 (2006) (defining "intelligence" as a "pro- cess, focused externally and using information from all available sources, that is de- signed to reduce the level of uncertainty for a decisionmaker."). See generally L. Britt Snider, Sharing Secrets with Lawmakers: Congress as a User of Intelligence, in INTELLI- GENCE AND THE NATIONAL SECURITY STRATEGIST: ENDURING ISSUES AND CHALLENGES (Roger Z. George & Robert D. Kline eds., 2006). 814 CREIGHTON LAW REVIEW [Vol. 44 a court case and attain a remedy against the opposing party for a manifested harm. Executive enforcement protects the integrity of the courts' prescriptive jurisdiction, including for decisions and processes that compel and verify information, such as with contempt orders and criminal punishment for perjury and falsifying information. In the national security environment, the vulnerable interest is broader, demonstrability of evidence is limited, and a remedy is not sought for a manifested harm. There is no prescriptive jurisdiction over a territory in which threats are allegedly forming although sover- eign intrusions via authorized weapon inspections (Iraq, Iran, and North Korea) may improve accuracy of perceptions. Compulsive mechanisms under the progression of United Nations ("UN") Charter Chapter 7 sanctions, Security Council resolutions, and fear of the use of force may leverage compliance. Witness accounts are not subject to perjury standards and classified data have no
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