BOOK/Margie Burns

'No War Plans On His Desk'

United States v. George W. Bush et al. (Seven Stories Press, 2006) is a helpful and highly accessible book for any reader currently interested in finding out more about impeachment.

Elizabeth de la Vega, the author, is a former federal prosecutor who lays out in 240 small-format and easily-understood pages the legal case against President Bush and Vice President Cheney: that they and their top personnel fraudulently misled the nation into a war falsely represented as necessary to America's defense and protection.

De la Vega confirms in a telephone interview that she served as an assistant US attorney during the Reagan, senior Bush and Clinton administrations. She was appointed in Minneapolis, Minn., in 1983 and served there until fall 1994, when she joined the San Jose, Calif., office on the organized crime strike force. In 1998, de la Vega was appointed head of the San Jose branch office by then-US attorney in San Francisco Robert S. Mueller, now FBI director. She stayed there until 2002, returning to become assistant US attorney again in the Northern District of California under US Attorney Kevin Ryan. (Ryan recently made the news as one of eight controversial firings of US attorneys by the Department of Justice, although Ryan by all accounts had actual negative ratings in the DoJ). De la Vega, who took early retirement in fall 2004, has a total of 21 years as a federal prosecutor to her credit and, counting her first two years clerking for a federal judge in St. Paul, 23 years of federal service.

US v. Bush represents a fictionalized grand jury considering an indictment against George W. Bush, Richard B. Cheney, Donald M. Rumsfeld, Colin Powell and Condoleezza Rice. The over-all load is lightened somewhat by elements of humor, mainly in the representations of grand jurors and of fictionalized or composite witnesses from law enforcement. The disclaimer "not an actual indictment" scrolls across the bottom of each gray page of the indictment itself.

A graceful and easy introduction elucidates some of the fraudulent conduct employed in the lead-up to the invasion of Iraq by comparing it to the conduct of Enron management. For a non-lawyer, de la Vega's lucid discussion and explanation of the legal terms fraud and fraudulent are some of the most useful parts of this book. The law, as it turns out, leaves much less wiggle room for intentionally misleading language short of a direct, 180-degree, flat-out lie than a lay reader might assume going in.

Good to know, because there is some protection for the ordinary consumer or citizen in this discussion. The concept of fraud includes -- along with outright lies -- "false pretenses," "false representations," "half-truths," "deliberate concealment of important information," "misleading representations" and "statements made with reckless indifference to their truth."

Starting to sound familiar already?

Take, for example, the term false pretenses: as de la Vega explains,

"One traditional instruction on fraud says that a scheme to defraud 'need not misrepresent any fact.' All that's required is that the scheme be 'reasonably calculated to deceive persons of ordinary prudence and comprehension.' You can defraud people without making any direct assertions at all."

Then there is the term misleading representations &endash; as the author calls it, "A very effective form of fraud: Making statements that are literally true, or technically true, but wording them in a way, or stating them in a context, that is misleading and therefore false and fraudulent."

De la Vega uses the Enron analogy to good effect:

"Here's a good example. In early September 2001, Lay was told that Enron was vulnerable to a corporate takeover, but when an employee asked him about it later that month, he said he had 'no information' that a corporate takeover was a possibility. Under questioning by prosecutor John Hueston, Lay said, in effect, that this response had been technically true, because Lay had no information about a specific company planning a takeover."

The Enron analogy, of course, always comes back to the lead-up to the Iraq war, and a tragic and disheartening lead-up it was, in retrospect, with the administration publicly proclaiming "open dialogue" and privately sending unauthorized military forces into Iraq even before the 2002 congressional 'resolution.' The chronology provided by the book, mainly for 2001 and 2002, should be sufficient to persuade any objective reader that indeed there was -- as the author puts it -- a "predisposition" on the part of Bush and Cheney to go to war with Iraq, from the first.

And the rest is history -- except that it isn't, because the full history isn't completely written yet.

De la Vega compares the quibbling or ambiguous wording employed by Ken Lay, in the example just above, to the president's repeated (public) statement that he had 'no war plans on his desk.' It also sounds like some recent testimony by D. Kyle Sampson, former chief of staff to Attorney General Alberto Gonzales.

In answer to questions on the current Department of Justice-US attorney controversy, Sampson has said repeatedly that no US attorney was asked to resign "for an improper reason." He said this in his written statement for the Senate Judiciary Committee, and used the same phrase again in responding to questions at the Judiciary Committee hearing on March 29. Sampson's definition of his term "improper reason" is surprisingly specific:

"The limited category of improper reasons includes an effort to interfere with or influence the investigation or prosecution of a particular case for political or partisan advantage."

Obviously the principle is a good one as far as it goes. Most people would not want to see someone interfere in a "particular" legal case by firing or reassigning a prosecutor, or any other way.

But what about someone who for whatever reasons might wish to impede an entire broader thrust of inquiry or an entire body of legal cases? Think of some of the biggest issues of recent years -- election fraud and vote suppression, wrongful detentions and other abuses in the 'war on terror,' and profiteering and other abuses in military and security contracts, among others. Is it a given that any such issue could be investigated and resolved in one "particular" legal case, even with hefty consolidation of cases by a judge?

They seem to have this one covered too, though. When the potential body of cases gets big enough, then the decision whether to investigate and prosecute probably becomes a "policy" decision rather than a "legal" or "justice" decision. Apparently any individual case is a justice matter, and more than one is a policy matter; nothing between one and two.

These formulations look at times like convenient dodges -- somewhat like the typical administration segue when declining to answer questions on a matter of public concern. First the information cannot be given out because it pertains to a "personnel matter." Then -- when the "personnel" in question has done something so flagrant that law enforcement gets into the picture &endash; the information cannot be given out because there is "an ongoing investigation." The next step is to decline to comment because that would interfere with the key personnel's "Fifth Amendment right." And last -- when the key personnel have been indicted or convicted -- the information will not be forthcoming because it is "pending appeal." I suppose the only thing after that is not speaking ill of the dead.

Margie Burns is a Texas native who now writes from Washington, D.C. Email See her blog at

From The Progressive Populist, May 1, 2007

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