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Political Manipulation of the Threat Level: Is Ridge's Charge a Federal Crime?

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Early buzz on a new book by former Secretary of the Department of Homeland Security Tom Ridge, The Test of Our Times, has attracted serious attention, and for good reason. Initially, it looked like a former Bush Administration cabinet member was about to come clean. Now, it is not clear exactly what Ridge is doing. Let me explain.

On August 20, 2009, I appeared on MSNBC's "Countdown with Keith Olbermann." The show had obtained an exclusive early copy of Ridge's book, and I was surprised to learn of its content. Tom Ridge was confirming what many Bush Administration watchers (including myself) had long suspected: that color-coded terror alerts had been issued in 2003 and 2004 to frighten voters into supporting the reelection of President Bush over his Democratic opponent, Senator John Kerry. This was a disturbing charge, and perhaps even one describing potentially criminal conduct.

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Ridge's Charge of Political Pressure Influencing Terror Alerts

Paraphrasing and quoting from Ridge's book, Keith Olbermann reported that "[o]n Friday, October 29th, 2004, four days before the vote, Osama bin Laden released a new videotape, you'll remember. Mr. Ridge did not think that warranted a change in the terror alert status. He [writes in the new book], 'At this point, there was nothing to indicate a specific threat and no reason to cause undue public alarm.'"

Olbermann continued reporting from the book as follows: "But in a subsequent video conference call, quote, 'a vigorous, some might say dramatic discussion ensued. Attorney General John Ashcroft strongly urged an increase in the threat level and was supported by Defense Secretary Donald Rumsfeld. There was absolutely no support for that position within our department, none. I wondered, 'Is this about security or politics?' Post-election analysis demonstrated a significant increase in the president's approval ratings in the days after the raising of the threat level.' "

This report concluded by noting that Ridge had claimed that, because White House staff agreed that raising the threat level could look politically-motivated, he had succeeded in quelling the effort. "I believe our strong interventions have pulled the 'go-up' advocates back from the brink," Ridge had written, adding, "I consider the episode to be not only a dramatic moment in Washington's recent history, but another illustration of the intersection of politics, fear, credibility and security. After that episode, I knew I had to follow through with my plans to leave the federal government." (This chapter of Ridge's book later appeared on ABC

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When Keith asked on the air for my reaction, I explained that -- even though Ridge's charge was hedged, and less than full-throated -- at its core he was describing criminal conduct. And, I added that, as a former United States Attorney, Tom Ridge surely knew his way around the federal criminal code.

Since Countdown broke this story, it has continued to grow, and the controversy appears to be far from over.

Ridge Suggests Possible Criminal Behavior on the Part of Rumsfeld and/or Ashcroft

Ridge does not explain what Rumsfeld and Ashcroft said to him. Nor does he describe precisely how they pressured him to raise the threat level before the election. Ridge does explain, however, that the Department of Homeland Security had no intelligence in its possession that justified raising the threat level.

The subtext of Ridge's material is unmistakable. He is suggesting that Don Rumsfeld and John Ashcroft were pushing him to raise the threat level before the election. Both Rumsfeld and Ashcroft are savvy political operators. Because they had no intelligence better than the intelligence Ridge had, Ridge explains, their aggressive pushing made him wonder "Is this about security or politics?" (Ridge "wonders" about almost a dozen matters in his book, but this is the only matter as to which he wondered in italics, for special emphasis.)

Ridge writes that the pressure was so intense from Rumsfeld and Ashcroft that he assigned his staff, who appear to have been fully privy to the uncalled-for pressure to raise the threat level, to assist in blocking their effort. Ridge writes that "[General] Pat Hughes would check around the intelligence community. Jim Loy would reach out to his fellow deputies within the cabinet. Susan Neely would contact Dan Bartlett, the head of public affairs for the White House." Bartlett would then go to the President, which resulted in the matter being dropped.

In short, Ridge has named the witnesses who will back up his charges that he was being pressured, for apparent political reasons, to raise the threat level. Strikingly, he identifies no less than four other people as having been privy: Hughes, Loy, Neely and Bartlett. It is not likely that he would have named these people if he did not believe they would back up his claim that Rumsfeld and Ashcroft were pressuring him to raise the threat level, and that -- since they did not have intelligence to justify it -- everyone no doubt concluded it would be political if they did this immediately before the election. Ridge, as he has noted in interviews, worried that a decision to raise the threat level that was motivated by politics -- not intelligence -- might backfire, and the blame would fall on him and his department.

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This report, by one-time United States Attorney Tom Ridge, has, in effect, broadly outlined activities that have the smell of a conspiracy to defraud the government -- which is a federal crime under Title 18 of the United States Code, Section 371.

Strong Evidence of a Conspiracy to Defraud the Government

There is no more authoritative source for a succinct summary of the federal criminal code than the United State Department of Justice's "Criminal Resource Manual" (CRM), which guides the United States Attorneys throughout the country in their prosecutions. The CRM explains the crime of conspiring to defraud the government under 18 USC 371. It notes that the language of the statute is "very broad" with the cases prosecuted under it relying heavily on the definition of "defraud" provided by longstanding Supreme Court rulings in Hass v. Henkel, (1910) and Hammerschmidt v. United States (1924).

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John Dean was White House legal counsel to President Nixon for a thousand days. Dean also served as chief minority counsel for the House Judiciary Committee and as an associate deputy attorney general in the U.S. Department of Justice. He is author of the book, (more...)

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