Keep in mind, I've run TomDispatch.com for only
a few years, but I've been a book editor in mainstream publishing for over 30
years. Sometime last spring, I was on the phone with former federal prosecutor
Elizabeth de la Vega talking about books she might someday write, when she suddenly
said to me, "You know what I'd like to do?" When I asked what, she replied,
"What I've done all my life."
"What's that?" I wondered innocently enough.
"I'd like to draft an indictment of President Bush and his senior aides, and
present the case for prewar intelligence fraud to a grand jury, just as if it
were an actual case of mine, using the evidence we already have in the public
record. That's the book I'd like to do."
With those three decades of publishing experience, I never doubted that this
was an idea whose time should come – and now it has. De la Vega has drawn up
that indictment – a "hypothetical" one, she hastens to add – convened that grand
jury, and held seven days of testimony. Yes, it's a grand jury directly out
of her fertile brain and the federal agents who testify are fictional, but all
the facts are true. She understands the case against the Bush administration
down to the last detail; and she's produced, to my mind, the book of the post-election,
investigative season: United States v. George W. Bush et al.
It's a TomDispatch.com book project, produced in conjunction with Seven Stories
Press, a superb independent publisher, and officially published on Dec. 1. I
think it's simply sensational. It makes a "slam dunk" case for the way we were
defrauded into war; despite the grim subject matter, it's a beautifully designed
little book, a pleasure to hold in your hand; and, because de la Vega is a natural
as a writer, it's also thoroughly enjoyable reading. With genuine pride, I'll
be turning the TomDispatch.com Web site over to excerpts from the book this
week, beginning with the posting of de la Vega's introduction on the Enronization
of American foreign policy today. The actual "indictment" will be posted on
Wednesday; the first day of grand jury testimony on Thursday.
I assure you, this is a must-read event; no less important, this is a must-buy
book that must be given over the holiday season to friends, relatives, those
who politically disagree with you, and even perhaps sent to congressional representatives.
Please get the investigative ball rolling by purchasing the book at Amazon.com.
Today, United States v. George W. Bush et al. remains in the realm of
fiction, but tomorrow, if you lend a hand… who knows? Tom
A Fraud Worse Than Enron
by Elizabeth de la Vega
Elizabeth de la Vega, appearing on behalf of
the United States. That is a phrase I've uttered hundreds of times in 20
years as a federal prosecutor. I retired two years ago. So, obviously, I do
not now speak for any U.S. Attorney's Office, nor do I represent the federal
government. This should be apparent from the fact that I am proposing a hypothetical
indictment of the president and his senior advisers – not a smart move for any
federal employee who wishes to remain employed. Lest anyone miss the import
of this paragraph, let me emphasize that it is a DISCLAIMER: I am writing as
a private citizen.
as a private citizen, I cannot simply draft and file an indictment. Nor can
I convene a grand jury. Instead, in the following pages I intend to present
a hypothetical indictment to a hypothetical grand jury. The defendants are President
George W. Bush, Vice President Richard Cheney, Secretary of Defense Donald Rumsfeld,
Secretary of State Condoleezza Rice, and former Secretary of State Colin Powell.
The crime is tricking the nation into war – in legal terms, conspiracy to defraud
the United States. And all of you are invited to join the grand jury.
We will meet for seven days. On day one, I'll present the indictment in the
morning and in the afternoon I will explain the applicable law. On days two
through seven, we'll have witness testimony, presented in transcript form, with
As is the practice in most grand jury presentations, the evidence will be presented
in summary form, by federal agents – except that these agents are hypothetical.
(Any relationship to actual federal agents, living or deceased, is purely coincidental.)
On day seven, when the testimony is complete, I'll leave the room to allow
the grand jury to vote.
If the indictment and grand jury are hypothetical, the evidence is not. I've
prepared for this case, just as I would have done for any other case in my years
as a prosecutor, by reviewing all of the available relevant information. In
this case, such information consists of witness accounts, the defendants' speeches,
public remarks, White House press briefings, interviews, congressional testimony,
official documents, all public intelligence reports, and various summaries of
intelligence, such as in the reports of the Senate Select Committee on Intelligence
and the 9/11 Commission. I've discarded any evidence, however compelling, that
Then, using a sophisticated system of documents piled on every surface in my
dining room, I've organized and analyzed the reliable information chronologically,
by topic, and by defendant. I've compared what the president and his advisers
have said publicly to what they knew and said behind the scenes. Finally, I've
presented the case through testimony that will, I hope, make sense and keep
After analyzing this evidence in light of the applicable law, I've determined
that we already have more than enough information to allow a reasonable person
to conclude that the president conducted a wide-ranging effort to deceive the
American people and Congress into supporting a war against Iraq. In other words,
in legal terms, there is probable cause to believe that Bush, Cheney, Rumsfeld,
Rice, and Powell violated Title 18, United States Code, Section 371, which prohibits
conspiracies to defraud the United States. Probable cause is the standard of
proof required for a grand jury to return an indictment. Consequently, we have
more than sufficient evidence to warrant indictment of the president and his
Do I expect someone to promptly indict the president and his aides? No. I am
aware of the political impediments and constitutional issues relating to the
indictment of a sitting president. Do those impediments make this merely an
empty exercise? Absolutely not.
I believe this presentation adds a singular perspective to the debate about
the president's use of prewar intelligence: that of an experienced federal prosecutor.
Certainly, scholars and experts such as Barbara Olshansky, David Lindorff, Michael
Ratner, John Dean, and Elizabeth Holtzman have written brilliantly about the
legal grounds for impeachment that arise from the president's misrepresentations
about the grounds for an unprovoked invasion of Iraq. But for most Americans,
the debate about White House officials' responsibility for false pre-invasion
statements remains fixed on, and polarized around, the wrong question: Did the
president and his team lie about the grounds for war? For many, the suggestion
that the president lied is heresy, more shocking than a Baptist minister announcing
during vespers that he's a cross-dresser. For many others – indeed, now the
majority of Americans – that the president lied to get his war is a given, although
no less shocking.
So my goals are threefold. First, 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
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
My second goal is to supplement the scholarly analyses already written, by
moving beyond exposition, beyond theory, to the inside of the courtroom, or
more precisely, the grand jury room. By presenting the president's conspiracy
to defraud just as a prosecutor would present any fraud conspiracy, I hope to
enable readers to consider the case in an uncharged atmosphere, applying criminal
law to the evidence that they believe has been proved to the standard of probable
cause, just as grand jurors would in any other case.
Why is it important to do this? Because whether the president and his senior
officials conspired to defraud the United States about the grounds for war is,
at least on one level, a legal question, but, without a shift in political will,
there will never be any reasoned consideration of it as such. The president
will not be held accountable for misrepresenting the prewar intelligence unless
and until Congress conducts hearings similar to the Watergate hearings. As yet,
however, we seem painfully incapable of reaching that point. We are like inept
tennis partners, collectively letting the ball slip by in the no-man's-land
between the service line and the baseline, or in this case, between the legal
and the political.
Perhaps more important, however, is that, although the evidence of wrongdoing
is overwhelming, the facts are so complicated – far more so than those that
prompted the Watergate hearings – that it's impossible to have a productive
debate about them in the political sphere. Indeed, modern-day spin has vanquished
substance so thoroughly that even the most well-grounded charge of deliberate
deception is often considered more despicable than the deception itself.
One forum where that's not true is the courtroom. The court system is far from
perfect, but there we at least expect that people will not substitute personal
attacks for argument. We expect a reasoned exploration of fact versus fiction,
honest mistake versus deliberate fraud. We also expect, and the law requires,
that people hear all the evidence before deciding, thereby avoiding the
rapid volley of sound bites that so regularly masquerades for debate on television.
Hence, this hypothetical grand jury presentation: it is a vehicle to deliver
My third goal is to send the message home – to whomever will listen. And this
The president has committed fraud.
It is a crime in the legal, not merely the colloquial, sense.
It is far worse than Enron.
It is not a victimless crime.
We cannot shrug our shoulders and walk away.
Why? Because We Are All Kitty Genovese's Neighbors
As an Assistant U. S. attorney in Minneapolis, a member of the Organized Crime
Strike Force in San Jose, and chief of the San Jose Branch U.S. Attorney's Office,
I prosecuted all manner of criminal cases. There were bank embezzlements, government
frauds, violent takeover robberies, piloting a commercial passenger flight while
under the influence – the pilot had had 20 rum and (diet) Cokes and four hours'
sleep before takeoff – and investment frauds, to name a few. Most were interesting;
some downright loopy. One hapless fellow, for example, stole a truck filled
with frozen turkeys and drove it across state lines to Wisconsin, thereby landing
himself in federal prison rather than in county jail. For good measure, the
following week – before he'd been apprehended for the frozen-turkey heist –
he stole a truck filled with packaged frozen broccoli and drove it to Iowa.
Unquestionably, though, the most compelling cases were those that involved
victims – of violent crimes, robberies, or fraud. So I was not surprised to
hear the lead Enron prosecutor's comment after the jury convicted former Enron
CEOs Ken Lay and Jeffrey Skilling: "What inspired me," John Hueston said, "was
just that, that I had spoken to so many employees, so many victims who lost
their savings, people who pleaded with me and the other prosecutors to see justice
Thanks to Hueston and his team, the victims of the Enron fraud – a $68 billion
dollar crime that left 20,000 people without jobs, pensions, and life's savings
– have obtained some measure of justice. They will never be made whole, but
at least the CEOs who orchestrated the fraud have been held accountable. In
the case of the largest corporate fraud ever prosecuted in the United States,
the system has worked, albeit imperfectly.
Thus far, however, in the case of the vastly broader and more devastating Iraq
war fraud orchestrated by the CEO of the United States and his management team,
the system has failed. And we are all victims of this fraud. George W. Bush
exploited the vulnerability of an entire populace reeling from the Sept. 11,
2001, attacks to manipulate them into supporting a war based on false pretenses.
If the financial cost of the president's fraud is astronomical – $340 billion
in direct war costs alone as of August 2006 – the human cost is incalculable,
and far more profound: over 2,500 American soldiers killed and 19,000 wounded;
possibly many more than 50,000 Iraqis killed; untold numbers of grieving Iraqi
and American family members; hundreds of thousands of Iraqis homeless; and a
million soldiers who have been sent to this war and will never be the same.
While we are all victims of the president's crime, we are also all bystanders.
The crime is ongoing, happening right before our eyes, and we are all onlookers;
we are all, in a sense, Kitty Genovese's neighbors.
As Malcolm Gladwell recounts in his book The Tipping Point, Kitty Genovese
was viciously assaulted, stabbed three times, and finally killed, on the way
to her Queens, N.Y., home one night in 1964. Thirty-eight neighbors heard or
watched her ordeal, but no one called the police until the attack was essentially
over. The murder was universally seen as a horrifying example of modern-day
indifference to the plight of others. But, Gladwell explains, psychologists
Bibb Latane and John Darley conducted experiments that led to a far different
explanation: "When people are in a group … responsibility for acting is diffused.
They assume that someone else will make the call, or they assume that because
no one else is acting, the apparent problem … is not really a problem." Ironically,
then, it was not that no one called to help Kitty Genovese "despite the
fact that thirty-eight people heard her scream; it's that no one called because
thirty-eight people heard her scream."
For over a year now, polls have shown that the majority of Americans believe
President Bush deliberately misrepresented prewar intelligence. Executive branch
officials who deliberately mislead Congress and the public intending to influence
congressional action have committed a federal crime. That means that roughly
100 million Americans believe Bush has committed a crime, yet most, like Kitty
Genovese's neighbors, are just passive bystanders – although not, I believe,
due to indifference.
Indeed, many of us are just watching it happen because we feel powerless to
stop it. Hundreds of thousands of people have, in effect, called 911, but not
even Democrats in Congress have been willing to answer the phone. It is not
that they don't have enough information; it is, our Democratic representatives
say, because it is not good political strategy.
The proposition that it is not good political strategy to insist that government
officials obey the law is highly debatable. More important, strategizing in
the face of an ongoing crime is wrong. Ask any legislator whether he would strategize
about possible political fallout before intervening to stop a crime that was
occurring in front of his eyes and the response would be, "Of course not." But
that is exactly what's happening right now.
So, consider this my 911 call. I'm calling on Democrats and Republicans
to do the right thing. And I'm calling on everyone else to do whatever you can
to convince Congress to do the right thing. I am not talking about bringing
people to justice in the vengeful sense that President Bush employs. I am
talking about effecting justice. I am talking, finally, about holding our highest
government officials accountable for a complex and calculated program of false
pretense, misleading statements, and material omissions – a criminal betrayal
of trust that is strikingly similar to, yet far worse than, the fraud committed
by Enron's top officials.
Enron: Misleading Statements and Material Omissions
In July of 2002, President Bush stood before a snappy blue-and-white banner
marked "Corporate Responsibility" and announced that he was opposed to fraud.
With the enactment of the new Corporate Corruption Act, the president declared,
there would "not be a different ethical standard for corporate America than
the standard that applies to everyone else. The honesty you expect in your small
businesses, or in your workplace … will be expected and enforced in every corporate
suite in this country." CEOs would now have to personally vouch for the truth
of their public statements.
Bush's speech announcing a higher standard for CEOs was itself misleading.
Hearing it, one might easily conclude that if the president hadn't pushed for
this new law, corporate officers would be legally entitled to lie, cheat, and
steal. Not true, of course. The new law, also called the Sarbanes-Oxley Act,
did not suddenly, for the first time in United States history, require corporate
officials to be truthful, forthright, and fair with the public. Such obligations
have been inherent in criminal fraud and other statutes for years.
Indeed, the Enron prosecution did not involve the Sarbanes-Oxley Act at all.
The main charge was conspiracy to defraud: that is, conspiring to deceive investors
by manipulating financial data, making false and misleading statements, and
deliberately omitting important facts, in violation of Title 18, United States
Code, Section 371.
Manipulation of data, false and misleading statements, and material omissions
– sound familiar?
At trial, former Enron CEOs Kenneth Lay and Jeffrey Skilling claimed they were
not responsible for the deception because they had no idea what their underlings
were doing. As the jury was instructed, however, anyone 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.
After four months of complex testimony, the jury reached a simple conclusion:
Lay and Skilling were responsible for what went on their company. As school
principal Freddie Delgado put it: "I can't say that I don't know what my teachers
were doing in the classroom. I am still responsible if a child gets lost."
In other words, the Enron jurors concluded that, legally, the desks of CEOs
Lay and Skilling were the final repositories of the proverbial buck. Those jurors
were average Americans – office workers, educators, engineers, a nurse – and
they knew, even without the Sarbanes-Oxley Act, that CEOs should be held to
the same standards of honesty and accountability that they would apply to themselves
in their own lives. Faced with evidence that Lay and Skilling had repeatedly
made public statements that were seriously undermined, if not flatly contradicted,
by information and warnings they had received behind the scenes, the jury refused
to allow them to avoid responsibility by blaming their subordinates.
Iraq: Misleading Statements and Material Omissions
The techniques of deception used by George W. Bush and his aides are identical
to those used by Lay and Skilling. In his July 2002 speech announcing the signing
of the Corporate Corruption Bill, the president said, "The only fair risks are
[those] based on honest information." The president and his top advisers were
acutely aware of the solemn risks posed by an invasion of Iraq, but instead
of debating those risks honestly, they developed slogans, including the familiar
"risks of inaction are greater than the risks of action" that simultaneously
usurped and deflected counterarguments while providing no information whatsoever,
honest or otherwise.
Such propaganda, cynical and craven as it is, might not qualify as criminal
fraud, but the propaganda alone was insufficient to convince Congress and the
American people to invest in the plan for war. To remedy this deficiency and
close the deal, the president and his top aides made hundreds of representations,
both general and specific, that were carefully crafted to manipulate public
opinion. As we now know, many of those assertions were false and misleading.
More important, we also now know that President Bush and his advisers had notice
and direct knowledge that their representations were seriously undermined and
in some key instances, disproved by information that was available to them.
Consistently, the president and his aides knowingly conveyed false impressions,
concealed important information, made deliberate misrepresentations, and professed
certainty about facts that were speculative at best. Such is the definition
of criminal fraud – whether committed by the president of the United States
or the CEO of a major corporation.
The only difference between the fraud committed by the Enron officers and the
fraud committed by the president is that the latter was far more comprehensive
and far more calculated. Even as President Bush stood center stage endorsing
honesty that July four years ago, he and his company were setting the stage
for another show. If the "only fair risks" speech was a perky Frank Capra clip,
the White House's next production would be 21st-century H.G. Wells.
As of July 30, 2002, Bush had directed the creation of the White House Iraq
Group, a public-relations operation whose sole purpose was to market the war.
This team, collectively called WHIG, was co-chaired by the president's closest
aides and long-term political consultants, Senior Adviser Karl Rove – whom Bush
has described as "the architect" of his 2004 reelection campaign – and former
Counselor to the President Karen Hughes.
By July 30, 2002, the White House Iraq Group had already begun fabricating
an ominous scenario that blurred together the Sept. 11 tragedy, mushroom clouds
rising over American cities, and terrorists releasing strains of smallpox, interspersed
with the shadowy face of a mad Iraqi dictator spring-loaded to attack the United
States. They were collecting props – anthrax vials and undated photos showing
centrifuge components and unidentifiable buildings where something ominous might
be happening, but we can't afford to wait to find out. They were writing
the script: power phrases like "Grave and gathering danger" and "We can't afford
to let the smoking gun be a mushroom cloud," designed less to inform than to
inflame. And, finally, Rove, Hughes, and company were scheduling appearances
for the President's War Council members that would begin just a month later,
in early September 2002.
It was to be a bravura performance by the president, the vice president, the
secretary of defense, the secretary of state, the national security adviser,
and many supporting cast members. The production was so well done, in fact,
that, like the radio audience terrified into hysteria by the infamous "War of
the Worlds" broadcast of 1938, most of us were fooled. Admittedly, we resisted
buying the duct tape and plastic sheeting; we may not have wrapped our heads
in wet towels to ward off Martian gas like the 1938 radio audience. What happened,
however, was much worse: because of Bush's fiction, we agreed to bomb people
8,000 miles away whose only "crime" was that they were oppressed by a violent
and cruel dictator.
Undoubtedly, Americans were panicked by H. G. Wells' radio play in part because
they were exhausted and nervous in those tough Depression years. But Orson Welles'
breathless report of a Martian invasion was never intended to cause panic,
nor was it ultimately harmful.
The president's elaborate production was, and still remains, an entirely different
story. It was a deliberate effort to create a permanent state of fear in America.
And to say it was harmful is like saying that it hurts to get hit by a Mack
Federal sentencing guidelines recognize that one who defrauds a vulnerable
victim, such as a salesman who falsely represents the curative benefits of an
elixir to a cancer patient, has committed an even more serious crime than one
who defrauds a person who is not so "particularly susceptible." The president
knew that Americans were "particularly susceptible" in 2002. We were exhausted,
and justifiably terrified, not only because of Sept. 11 but also because of
the anthrax murders and the random Washington, D.C., sniper killings that coincided
with the Bush-Cheney administration's push for war.
President Bush and his White House Iraq Group did not merely exploit this fear;
they magnified it. Worse yet, the president was the very person upon whom the
public relied to protect it from danger and, one would hope, from omnipresent
fear itself. Having used the authority of the Oval Office to make people more
afraid, having created an even darker backdrop of fear, our highest officials
exploited that reliance and the trust they enjoyed by virtue of their positions
to sell something they knew the American public would not otherwise have bought.
It was as if the cancer victim's trusted personal physician had convinced him
that his disease was more advanced than it really was, and then used the same
fraudulently heightened fear to manipulate him into buying a bogus cure-all.
In the language of criminal law, the president and his senior advisers have
abused a position of trust to defraud the most vulnerable of victims. How would
such a case be presented for prosecution? I invite you into the grand jury room
Ladies and Gentlemen, tomorrow begins our presentation in the case of
United States v. George W. Bush et al. Please remember that you must decide
the case based solely on the evidence that's presented and the applicable law,
without regard to prejudice or sympathy. In other words, your politics, and
any personal feelings you have toward the defendants – positive or negative
– should have no bearing on your deliberations.
I will begin by passing out the indictment, so don't forget your reading glasses…
[Coming later this week: Part 2 of United
States v. George W. Bush at TomDispatch.com – the indictment of George
W. Bush, Dick Cheney, Donald Rumsfeld, Condoleezza Rice, and Colin Powell.]
Elizabeth de la Vega is a former federal prosecutor with more than 20 years
of experience. During her tenure, she was a member of the Organized Crime Strike
Force and chief of the San Jose Branch of the U.S. Attorney's Office for the
Northern District of California. Her pieces have appeared in The Nation,
the Los Angeles Times, and Salon. She writes regularly for TomDispatch.
This is the introduction to her new book, United
States v. George W. Bush et al. She may be contacted at ElizabethdelaVega@Verizon.net.
Excerpted from United
States v. George W. Bush et al. by Elizabeth de la Vega, published