Now, we almost all agree that Bush and Cheney have done bad things. But have they actually committed crimes? If you know anyone who has any doubts on this topic, may I recommend a brilliant little book for you to stick in their stocking next month?
In her new book, "United States v. George W. Bush et al.," former federal prosecutor Elizabeth de la Vega presents the case, as if to a grand jury, for an indictment of Bush, Cheney, Rice, Rumsfeld, and Powell. De la Vega does not address over a dozen clear criminal acts, including some openly confessed to — such as spying in violation of the Foreign Intelligence Surveillance Act. Instead she focuses on the area where the most significant harm has been done, but where the legal issues have seemed to many people complex and unclear.
De la Vega charges that Bush, Cheney, et al., "did knowingly and intentionally conspire to defraud the United States by using deceit, craft, trickery, dishonest means, false and fraudulent representations, including ones made without a reasonable basis and with reckless indifference to their truth or falsity, and omitting to state material facts necessary to make their representations truthful, fair and accurate, while knowing and intending that their false and fraudulent representations would influence the public and the deliberations of Congress with regard to authorization of a preventive war against Iraq, thereby defeating, obstructing, impairing, and interfering with Congress' lawful functions of overseeing foreign affairs and making appropriations."
That may sound like a longwinded and legalistic way of saying "Bush lied. People died." And more or less it is. But in some important ways it is not. De la Vega is arguing, as John Bonifaz did in this letter to Congressman John Conyers in May of 2005 , that there is probable cause to believe that the President and others have violated Title 18, United States Code, Section 371. This law makes it a felony "to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose…." The Congress is one such agency. To defraud the Congress is not the same thing as to lie to it.
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As Bonifaz argued persuasively, Bush has lied to Congress, thus violating the False Statements Accountability Act of 1996, 18 U.S.C. — 1001. But in many instances, both in writing and speaking, Bush and gang have been careful to select words that might be described as literally true while intentionally misleading. There are arguably many instances in which he and his subordinates (for whose actions he is also legally responsible) have avoided making false statements while nonetheless committing fraud.
Bush's statements have also not been made under oath. This means they are not perjury. It does not mean they are legal. Nor is legality strictly at issue in questions of impeachment. A crime can be too minor to be properly an impeachable offense. An impeachable offense, an abuse of power, a threat to our system of government, can be committed without violating any law.
Still, it is illuminating to see the legal case made in detail and with overwhelming evidence that Bush et alia have committed fraud. The law, it turns out, is much closer to common sense than common wisdom supposes it to be. We commonly think that pairing "9-11" and "Saddam" together thousands of times with the clear and successful intention of persuading people that the two are connected is dishonest even if you avoid literally saying "Saddam Hussein caused 9-11." But we suppose falsely that the law is not with us, that the law must stick to what was literally said. We imagine falsely that for a crime to have been committed, the words "Saddam Hussein caused 9-11" must have been spoken, and must have been spoken under oath, and must have been spoken by someone intelligent enough to be in command of the information and know he was lying. We are triply and grievously mistaken. There are still many laws on the books in this country that are much more wisely written than that.
Asserting, as Cheney did, that Iraq has nuclear weapons looks like a lie. Worrying aloud, as Bush and Rice did, that Iraq might nuke the United States seems dishonest. But can it actually be criminal? Indeed it can be. De la Vega explains how. In her Introduction, she describes one of the goals of her book as follows:
"I want to explain that under the law that governs charges of conspiracy to defraud, the legal question is not whether the President lied. The question is not whether the President subjectively believed that there were weapons of mass destruction in Iraq. The legal question that must be answered is far more comprehensive: Did the President and his team defraud the country? After swearing to uphold the law of the land, did our highest government officials employ the universal techniques of fraudsters — deliberate concealment, misrepresentations, false pretenses, half-truths — to deceive Congress and the American people?"
Later, De la Vega adds: "[A]nyone who makes representations intending that the public will rely on them, has an affirmative obligation to make sure that they are true and accurate. Representations made with reckless indifference to their truth are as false as outright lies." Of course this makes sense. If you're the President you actually have a duty to try to do your job right. You're actually responsible for gross carelessness as much as for malice. It's nice, isn't it, to know the law sees it this way too.
Fraud can be committed by lying, but also by false pretenses, false representations, half-truths, deliberate concealment of important information, misleading representations, or statements made with reckless indifference to truth. In this book, De la Vega demonstrates in plain English through an entertaining simulation of a presentation to a grand jury how fraud was committed over and over again in the marketing of the Iraq War. Breaking a little from reality for the sake of more entertaining dialogue, the author has imaginary grand jurors occasionally ask questions of the prosecutor and witnesses. After laying out the evidence Bush had that aluminum tubes purchased by Iraq were not intended for a nuclear centrifuge, one grand juror sums it up by asking:
"In other words, to conclude that the Iraqis intended to use these tubes in a nuclear centrifuge, you'd have to assume that they deliberately ordered tubes that were made from inferior material, not cut as precisely as they needed, three times too thick, more than twice as long, half the diameter needed, and coated with something they'd have to take off?"
Now, Bush may have assumed all of that. Cheney may have told him to assume all of that, and he may have nodded with his mouth hanging open and said "Duh, all right, whatever you say." But he had a legal responsibility as President not to launch a war on the basis of such questionable assumptions, not to conceal them from Congress and the American people, and not to exact retribution against those whose research called his conclusions into doubt.
The aluminum tubes were one of two pieces of "evidence" that Iraq might someday develop nuclear weapons. The other one makes this one look solid. Read this book.
And when you read it, bear this in mind: If we pressure Congress hard enough it will do the investigations early next year that will lead to impeachment and later criminal prosecution for these crimes. And the investigations have the potential to reveal much more evidence, but — as De la Vega has shown better than anyone else I've seen, and as she thoroughly documents — there is already more than enough evidence on the table to justify a criminal indictment or a political indictment, also known as an impeachment.
After you read this book, please deliver it or mail it to your Congress Member.
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