I think you've got a really low threshold for declaring a "constitutional crisis". Wake me when there's rioting in the streets, states getting into armed conflict with the federal government, a President refusing to leave office when his term expires, or something equally cataclysmic.
 

Under that view, of course, Watergate was not a constitutional crisis.
 

Professor,

I continue to agree with your laundry list of ills we suffer under our Constitution, and the list grows with each post. But the question remains, what would we risk with a new Constitutional Convention? Absent a successful long term education and engagement process such as you talked about on another thread I fear we would risk everything we hold dear. There is nothing in the current dominant discourse to calm my fears that the Yoos and the Gingrichs and even the Clintons would approve as expedient all manner of measures with unnoticed poison pills. The recent passage of the MCA is a fine example; it certainly makes more expedient the task of catching bad guys. But I think we have, on this blog, pretty well established that it completely fails to provide protections against abuse, say of picking up a Levinson or a Link off the street and disappearing them without any recourse to due process. I see nothing but a web of such expediencies coming from any modern Constitutional Convention, and argue we are vastly safer working with what we've got.
 

Sandy: It would be one thing if a solid majority of Republicans in Congress were clamoring to leave Iraq. Or even if a solid majority of *Democrats* in Congress were doing so. That might *begin* to implicate the constitutional crisis you describe. More to the point would be if both houses of Congress were actually to vote to cut off funds for the war -- even if such a bill were vetoed -- or, more simply, if both houses passed a concurrent resolution requiring withdrawal, which is supposed to *trigger* withdrawal as a matter of law, even without the President's signature, under section 5(c) of the War Powers Resolution. (But cf. Chadha -- Bush would undoubtedly conclude that 5(c) is unconstitutional.)

This actually happened at the tail-end of the Vietnam War. Both Houses voted to cut off funds for hostilities in Cambodia and Laos, but couldn't override Nixon's veto; the bill was amended to give Nixon six more weeks of hostilities, and only then did he sign it. See 361 F. Supp. 553.

But we are nowhere even close to any of those scenarios today, are we? As far as I know, there aren't even any serious Democratic proposals to that effect, let alone support from a majority of Republicans. You are right, in other words, that "[t]here is no possibility at all of Congress cutting off funding of the War."

In order for the constitutional crisis you envision to occur, wouldn't it be necessary, at the very *least,* for a majority in Congress -- including many Republicans -- to be in favor of withdrawal?

That is to say, I think I disagree that we're close to the point where "we will be faced, clearly and unequivocally, with [facing the question of] the extent to which the . . . Commander-in-Chief . . . can act functionally as a dictator with regard to the all-important area of conducting a foreign war." For better or -- obviously -- for much, much worse, this was and is a war that Congress authorized in fact (not "arguendo"), and there's no immediate prospect of the people's representatives taking any steps to rescind that authorization.

If and when they do -- and if Bush resists the legislature's initiative -- *then* there'll be a crisis of the sort you describe. For the time being, it's bad enough that we "merely" have a disaster of unthinkable proportions and nary a clue by anyone in the Congress about how to extricate ourselves from this mess. That's a crisis, all right -- but I don't kniw that it's a *constitutional* crisis.
 

So let me get this straight: there's "no possibility" that Congress will vote for a change in policy, but the President's approval ratings may plummet to "historic lows," and that's our "Constitutional crisis"? God forbid that Prof. Levinson should ever get caught in a strong wind.

And what's this about a mutiny in the military? They volunteered. On the day they stop volunteering, all wars will cease.
 

"Under that view, of course, Watergate was not a constitutional crisis."

That's right, it wasn't. He resigned before it even got as far as impeachment.

The last genuine constitutional "crisis" we had was "the switch in time that saved nine", when the Supreme court gave up on enforcing constitutional limits on federal power.
 

I am in substantial agreement with Marty. The "crisis" I envision is not where Bush "refuses" to obey congressional commands, for we both agree that Congress is unlikely to hold his feel sufficiently to the first. One might recall that Lincoln, who believed that Mexican War was bogth unwise and unconstitutinal, was unwilling to vote against providing provisions for the troops for the obvious and understandable reason that we have duties of loyalty to persons who answer their country's call in good faith.

So the "crisis" (if that is the right word) is more likely to be the result of a generally-shared perception, including among loyal Republicans, that we are in the grip of a disastrous war led by a person who is incapable of achieving either victory or a timely disengagement. It could conceivably lead to some rioting in the streets (otherwise called "demonstrations") led, unlike as in Vietnam, by families of GIs on their third and fourth rotations in Iraq. Who knows exactly what form it will take? But I continue to believe that we are getting into unprecedented territory with regard to public dissatisfaction with a Commander-in-Chief during time of war.

Much depends, of course, on exactly what the Baker Commission actually says and the degree to which Bush actually expresses disdain for it. I am assuming, though, that the recent reports are correct in suggesting some move toward withdrawal, coupled with region-wide talks including Syria and Iraq, all of which would represent major policy reversals by a president who continues to be publicly resistant to the idea.

The person to watch, as suggested earlier, is Chuck Hagel. If he decides to take on the role of William Fulbright (or Bobby Kennedy) vis-a-vis an ever-weakening George Bush, things could get very interesting.

And, incidentally, I'm certainly not suggesting that this particular kind of "crisis" would spark a convention, if for no other reason than that it would be easy enough, as a formal matter, for Congress to propose a relevant amendment and for it to go directly to the states. And, as we move ever later into the waning days of the Bush Administration, it's even possible that the discussion of such a proposal could be relatively apolitical inasmuch as we're all behind a Rawlsian veil of ignorance as to who will be president in 2009. It might be the case that members of both parties would come to realize that the country would be better off with a mechanism to fire a president in whom the country has really and truly lost confidence with something so major as the conduct of a war.
 

Professor Levinson: It might be the case that members of both parties would come to realize that the country would be better off with a mechanism to fire a president in whom the country has really and truly lost confidence with something so major as the conduct of a war.

That actually could already be the case. For instance, I have come to agree with your concerns regarding the Constitution-as-it-is. But my faith in my fellow voters, party affiliation be damned, is so low that I cannot fathom them by any process coming to anything approximating an improvement on the current Constitution. We're talking about the same custard-heads who let themselves get conned into illegally invading and occupying our former ally, the sovereign nation of Iraq, in the first place. Big Money would flow to the complacent and complicit media and we would end up with the best new Constitution Bechtel and Haliburton could buy.

A thousand times "no". We are safer with what we have. Want change of the presidency, get to work on an amendment. Put your effort into the kinds of long term education mentioned earlier. Keep the faith, help keep our eye on the ball, on how things could be better. But forswear this idea of a new Convention.

$.02, ymmv, and sorry to get preachy on ya.
 

Professor Levinson:

At what point will the military, whether grunts on the ground or generals in the Pentagon, begin an ever more active mutiny against a Commander-in-Chief who has lot any semblance of a "mandate to govern" beyond the argument that, after all, he was elected in 2004 and has an unbreakable lease on the White House until 2009?

I wasn't aware there was any level of "mutiny" by the military against prosecuting the wars in Iraq and Afghanistan. I would suggest instead that you and many others have a significant disconnect with the troops actually doing the fighting over there.

I was treated to an good example of this disconnect listening to NPR on the way home from the firm today. The reporter interviewed a sergeant who had just reenlisted for a 4th tour in the Middle East, this time in Afghanistan training the Afghan Army.

The NPR reporter, who most likely has no family or friends in the military, could not keep the dumbstruck amazement from her voice when she asked the sergeant how he could do such a thing. The sergeant told her proudly that he was good at what he did, the job of helping other people defend their new democracies was honorable and the job needed to be done.

Doing her best to discredit the young man, the reporter reminded him that he had disagreed with the White House in a prior film segment. The sergeant told her that the soldiers all had different politics, admitted that he disagreed with the administration on certain areas, but instructed the reporter that you put away politics when it comes to fighting our nation's wars.

Getting irritated that the interview was not going the way she envisioned, the reporter spitefully asked the soldier whether he had told his mother that he was deploying to Afghanistan. The sergeant said that he was waiting until the holidays were over before telling her and all but pleaded with the reporter not to broadcast the news before the holidays.

Unfortunately, the sergeant learned the hard way tonight never to trust a reporter with a political agenda. I hope his mother was not listening tonight and the sergeant rather than NPR tells here about his deployment.

I served as an infantry platoon leader in the Persian Gulf War and my brother has been serving as an Air Force pilot in both the Iraq and Afghan theaters. We simply do not recognize the world of the military as reported in the press. They have no comprehension of the military or those who serve in it.

I would strongly encourage you to visit and spend a good deal of time reading the posts by our soldiers at the so called miliblogs, many of which are published directly from Iraq or Afghanistan. If you are getting your news from media outlets like the NYT and AP, what you will learn at the miliblogs may be a big eye opener for you.

For a good initial selection of miliblogs, scroll down on the right side of http://hughhewitt.townhall.com/ until you reach the links. These linked miliblogs blogs have further links you can explore.

You will be hard pressed to find deteriorating morale nevertheless the "mutiny" which you honestly appear to think exists in the military.
 

The military isn't going to revolt; they are too much in the authoritarian mold. Look at Powell, for instance. He could have resigned before the speech to the UN.

But a Governor - civilian leadership that took seriously the role of the state Guard - what might a Governor do? A Governor could refuse to mobilize more of her citizens - which would bring up the Montgomery Amendment. Could she use her Constitutional authority to demote officers and effectively stand down her state's Guard?

It does strike me as a constitutional crisis. There is a huge chunk of this country and planet that knows the President is breaking the law repeatedly. It's their duty to stop him otherwise they are complicit too. It's not like this President is cheating on his wife; he's well on his way to killing 1,000,000 iraqis. And that's assuming he doesn't get really crazy.
 

Prof. Levinson: “I'm old enough to recall the chant ‘Hey, Hey, LBJ, How Many Kids Did You Kill Today?’ For a variety of reasons, that chant was a mistake, not least because a majority of Americans actually supported the War in Vietnam throughout LBJ's term and opposed withdrawal.”

You say the chant was a “mistake.” I don’t understand what that means, and would greatly appreciate it if you would elaborate on that. E.g. In what sense is a chant a “mistake?” Why would this particular chant be a mistake “because a majority of Americans actually supported the War in Vietnam throughout LBJ's term and opposed withdrawal?”

The questions aren’t intended to start an argument. I’m interested primarily because I remember the slogan too.

All the best,
Tom Doyle
 

I agree that there is no constitutional crisis. But then again you can change the constitution because it is not functioning as envisaged.
 

BDP: “I wasn't aware there was any level of ‘mutiny’ by the military against prosecuting the wars in Iraq and Afghanistan."

I didn’t understand SL’s comment as asserting “there was any level of ‘mutiny’ by the military.” The text you quoted reflects the opposite view:

"At what point will the military, whether grunts on the ground or generals in the Pentagon, begin an ever more active mutiny against a Commander-in-Chief who has lot any semblance of a "mandate to govern" beyond the argument that, after all, he was elected in 2004 and has an unbreakable lease on the White House until 2009?"

Something that has not begun isn’t happening yet.

All the best,

Tom Doyle
 

Actually, it sounds almost like Sandy *wants* a constitutional crisis in the form of the military rejecting legal civilan leadership. Since the elected branches aren't exactly about to implement the policy he wants.

I'm sure I'll be pointing this out over and over, (Have already a couple of times!) but here goes: The government not *chosing* to implement Sandy's prefered policies is NOT the stuff of a constitutional crisis.
 

Enough with this "Commander-in-Chief" mishagoss!

According to the Constitution, the president is the Commander-in-Chief of the armed forces--not of the entire country. He is, accordingly, not my commander in chief, nor, unless you are in the military, yours.
 

Tom Doyle: I’m interested primarily because I remember the slogan too.

I'm pretty sure Professor Levinson is dubbing that chant a mistake because it puts all the blame on LBJ rather than accepting any of the blame for one's prior support. It's akin to my beef with Cindy Sheehan, who had to lose a son before she was against the war. Seems rather a frail, personal, and unsupportable reason to oppose something. If you were for the war in Iraq at any point then you bear your share of the guilt. The chant should be "How many kids did we kill today?" rather than "...you..."

Peace.
 

The United States Constitution. Article II. Section 4. "The President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

TREASON: "the betrayal of trust; treachery."

BRIBERY: "money or favor given or promised in order to influence the judgment or conduct of a person in a position of trust."

HIGH CRIMES: indeterminate meaning

MISDEMEANORS: "a crime less serious than a felony; misdeed."

War crimes. Deliberate deceit and fabrication. Violation of the Constitution and its guarantees, willful and deliberate lawbreaking. Incompetence and malfeasance that has harmed hundreds of thousands. Unbeholden to the governed. Illegal and warrantless searches. Indefinite and uncharged imprisonment of American citizens. Denial of habeas corpus, breach of due process, a shadow government concealed and surreptitious. Breach of FISA and non-compliance with Constitutional checks-and-balances. Genocide and unjust war and invasion. Halliburton unbidded contracts.

What more is needed to determine betrayal, misdemeanors, bribery (or is it extortion), and high crimes? Nixon's Watergate was far less serious than this short litany of Bush/Cheney's failings (there was no rioting in the streets then either). Violating his oath of office, failure to uphold the Constitution, and claims to be above the Constitution, etc. and etc. What more is needed, indeed?
 

You say the chant was a “mistake.” I don’t understand what that means, and would greatly appreciate it if you would elaborate on that. E.g. In what sense is a chant a “mistake?” Why would this particular chant be a mistake “because a majority of Americans actually supported the War in Vietnam throughout LBJ's term and opposed withdrawal?”

I understood it differently than Robert Link. I took it to mean that the chant was politically counterproductive because the majority of Americans did support the war at that time. The chant served more to alienate than to persuade.
 

Mark: I understood it differently...

Cool. Now we have a good reason to ping the prof and get it from the source. Seems to me we could both be right on this one, but maybe that's just my pride talking.

Professor Levinson?
 

Gay Species:

I am not sure whether your hyperbole or that of Professor Levinson is more overblown.

You claim that the President violated some laws which justify impeachment.

Why don't we have some fun. Go name the law you claim the President has violated and give your evidence.

Here is an example of how this is done. President Clinton committed two counts of felony perjury in violation of the US Code by lying about Monica Lewinski during a sworn deposition and later in front of a criminal grand jury.

Now give it your best shot at Mr. Bush...

Remember, this has to be an act or omission by the President himself or under the orders of the President.
 

BD:Why don't we have some fun. Go name the law you claim the President has violated and give your evidence.

Title 18, United States Code, Section 371

I'll defer to Elizabeth de la Vega:

"...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."

(excerpt from United States v. George W. Bush et al.)

Having fun yet?
 

pms:

18 USC 371 is the federal conspiracy statute and states in pertinent part:

If two or more persons conspire either 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, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

Exactly what criminal offense do you allege that Mr. Bush and some other person conspired to commit?

"Bush lied and people died" may make a tacky bumper sticker, but it is not criminal fraud or any other crime.

Anyone else want to give this a try?
 

pms:

BTW, the Senate Intelligence committee and the British parliament's Butler Commission already examined the charge of whether the prewar intelligence was "cooked" and both unanimously found that it was not.

Consequently, the Bush lied charge itself is bogus.

A lie is intentionally making a statement of fact (not an opinion) which the speaker knew was false at the time.

I have made this challenge on other boards, so why not here.

I challenge anyone here to show me a single instance where George Bush lied about the pre war intelligence.

I do not want to hear examples of opinions or mistakes. If you are accusing Mr. Bush of lying, show me the beef.
 

Bart: If you are accusing Mr. Bush of lying, show me the beef.

More sophistry, the absence of evidence being offered as evidence of absence. Rest assured that if anyone dared offer such feeble support of something Bart didn't take on faith he'd be the first to cry foul. But don't be so sure he's above abusing your good will by offering the same fallacies and hoping he'll get away with it.

The quote, btw, is "Where's the Beef?" or "Show Me the Money." Boy are you lousy at this, Bart. But maybe it's just because you are working so hard re-reading the MCA, looking for that clause that lets your folks prove your citizenship when you get, wrongfully, picked up as an AUEC. Then again, maybe you're just lousy at this.
 

Robert Link said...

Bart: If you are accusing Mr. Bush of lying, show me the beef.

More sophistry, the absence of evidence being offered as evidence of absence.

My friend, we live in a society where the accused are presumed to be innocent until proven guilty by affirmative evidence. If you had read your link to the end you would have discovered that the logical fallacy of appeal to incredulity does not apply to reasonable presumptions like the presumption of innocence because the burden of proof cannot be shifted to negation.

Care to provide any proof that Mr. Bush lied about prewar intelligence?
 

The majority of American combat deaths in Vietnam (approximately 30,000 out of 47,000) occurred before Nixon took office.

Whatever the threshold for a constitutional crisis is, it surely can't be a president not taking James Baker's advice.
 

Bart: Care to provide any proof that Mr. Bush lied about prewar intelligence?

I think you know the answer to that one: I'll think about it, sometime after you man up with regards to your absurd assertions about your family proving your citizenship when you get picked up, wrongfully, as an AUEC. I note, also, that you don't deny your persuasive but intellectually dishonest use of fallacy. I suppose that is wise of you, if not really the same as honest.

...show me the beef...
heh
 

BTW, the Senate Intelligence committee and the British parliament's Butler Commission already examined the charge of whether the prewar intelligence was "cooked" and both unanimously found that it was not.

Neither of which are courts, if I'm not mistaken. As for the "beef" of the argument, maybe we should make a mini reading group and read her book and see what we think of the arguments and evidence presented therein.

For an excerpt, go here:

http://www.alternet.org/rights/44815/

Other tastes can be had at Amazon via the excerpt and "surprise me!" button. (I hit that button with dread. One day they might actually surprise me.)

Your original position was that no one could make a case that the President had broken any laws worthy of impeachment. I thought it amusing that I had just read an excerpt of a book proposing to do just that.
 

PMSChicago: [Bart's] original position was that no one could make a case ...

Complete sham on his part, akin to the examples here. Such positions are unanswerable, carrying, as they do, the unvoiced presupposition that all ostensible counter examples are per se false and that anyone offering such is doing so for unworthy reasons.

From the link, above:
Why does Oblio do [X]?!

It really doesn't matter much what you replace "do [X]" with, whatever Oblio's reasons they will be inadequate and Oblio should feel bad for doing X and for having such a lousy excuse. And this is an example of the kind of rhetoric the Coulters and Limbaughs and O'Reillys are trained in.
 

"Bart" DePalma:

[Gay Species said (of Dubya)]: War crimes. Deliberate deceit and fabrication. Violation of the Constitution and its guarantees, willful and deliberate lawbreaking.

["Bart"]: You claim that the President violated some laws which justify impeachment.

Why don't we have some fun. Go name the law you claim the President has violated and give your evidence.

50 USC § 1809 (see here), for one. That, BTW is a felony.

He's admitted it. In fact, he's had to go ask Congress to change this law, because he insists that he needs to do what this law prohibits. Can't get any plainer than that. (He also asked to such changes to be retroactive, which harldy can be justified on the basis of what he needs to do, and which sole purpose seems to be to prevent any criminal culpability for his past law-breaking).

One court so far has ruled that the gummint is violating this law and ordered it to stop. No court has ruled contrary to that. Until a law is ruled unconstitutional and void, it is still the law. And Dubya has broken it.

Here is an example of how this is done. President Clinton committed two counts of felony perjury in violation of the US Code by lying about Monica Lewinski during a sworn deposition and later in front of a criminal grand jury.

"Bart" adopts the RW "talking points" which ignored the Kungys and Gaudin cases, and pretends that (alleged) "lying under oath" is in fact a crime. It is not. Furthermore, even the whack, foaming Republican House refused to "indict" (e.g., impeach) on one of these counts, and the Senate aquitted. In the words of the Gilbert & Sullivan "Modern Major General" Rehnquist, "Not guilty!"

Clinton was not even indicted in a court of law for any crime, much less convicted ... and for good reason: Courts of law are required to follow the law and to heed the Gaudin and Kungys precendents.

I'd note, FWIW, that various RW hacks were putting out papers even as early as Clinton's first term about what "high crimes and misdemeanors" constitute, and argued there that gross mismanagement and various and sundry inchoate 'crimes' of a president, such as casting the office of the presidency into disrepute or other 'political' offences, were in fact impeachable offences. My, how the times have changed. IOKIYAR, you know....

Cheers,
 

"Bart" DePalma states falsely:

BTW, the Senate Intelligence committee and the British parliament's Butler Commission already examined the charge of whether the prewar intelligence was "cooked" and both unanimously found that it was not.

So the answer's "42". Hmmmm. Waiddaminnit ... what was the question?!?!?

That being said, it is untrue (and immaterial if true) that these commissions "found" such a thing. The answer is quite a bit more complicated, and in fact, the question of what happened to any raw intelligence ("cooked" or not) once it made the White House is something that the Republican have resisted any investigation of (despite Roberts's dishonest promises to do so). And for good reason. Nor did the 9/11 commission make any serious attempt to delve into the specifics of how the maladministratin ended up being so completely wrong on Iraq. Perhaps that all will change with the new Congress. Aside from that, the conclusions of these panels have no legal standing, and certainly cannot change any actual facts. For instance, they could be just as wrong in their conclusions as was the maladministration in their Iraq "intelligence", but there's still no WoMD in Iraq (other than those we're brought over there with us).

Cheers,
 

"Bart" DePalma:

I challenge anyone here to show me a single instance where George Bush lied about the pre war intelligence.

"Bart" Quixote pretends that no one can answer his challenges, and proclaims victory over the windmills. But "Bart" is one of the biggest "avoiders" around.

Here's a Dubya lie:

"He [Saddam] wouldn't let them [the inspectors] in [...] therefore, after a reasonable request, we decided to remove him from power".

This was said after the invasion.

Dubya has now repeated this canard another two times (by my count) in essentially the same form in several different settings.

That's either a lie, or Dubya's floridly psychotic. So, what'll it be, impeachment or invoking the 25th Amendment? Only his psychiatrist knows for sure....

Cheers,
 

Robert,

Since you are fond of framing, might I suggest a different frame for considering Bart. Instead of accusing him of being deceitful, consider that Bart is a trial lawyer, acting as "zealous advocate" for his client, in this case the Bush Administration.

As zealous advocate, a lawyer may treat a molehill of evidence in his favor as a mountain, while ignoring the mountain of evidence on the other side. A lawyer filing a brief may cherry pick and cite out of context to make his client's case sound as strong as possible. These are the very things Bart does. But it is never permissible to falsify, and Bart does not.

In an adversarial system, this type of zealous advocacy is not dishonest because all parties operate under the same rules and understand them. There is a zealous advocate on the other side presenting an equally one-sided case and a neutral judge trained in deciding such cases. Where zealous advocacy does become deceitful or, at best, jarring, is when it takes place outside of an adversarial proceding, before people not prepared to recognize it for what it is.

Most posters here are lawyers or have some type of legal training. But most people here do not think of this blog as a courtroom and expect posters to be seekers of the truth, not advocates. Bart's refusal to take off his "advocate" hat offends you, and has offended other posters as well.

But I would urge you, instead of taking offense, to recognize him as simply an opposing lawyer and treat him as such.
 

Enlightened Layperson: But I would urge you, instead of taking offense, to recognize him as simply an opposing lawyer and treat him as such.

"Blessed be the peacemakers." You hit a nerve, and I've erased the first 300 words I wrote in reply But be clear, it's not his advocacy that sets my teeth on edge, it's the disingenuous, intellectually dishonest, manner in which he disclaims such. The closest he gets is his claim that a debate *is* (as in "is only and naught but") an effort to persuade others to one's world view. You may recall him directly disclaiming we could be in any other relationship, at the same time he invoked "hard" truth in contrast to "richly nuanced" truth. You may also recall me offering an olive branch more than once.

Bart's a troll, but an articulate one. Target practice is about all he's good for.
 

I think that there is a danger in taking the President too much at face value in these statements.

There are at least two ways further to interpret his remarks, one subjective and one less so.

One, he has decided that, as long as there is one Iraqi fighting for freedom, the U.S. Military has a *moral* role (I believe, from a long distance, that he thinks of departure as the moral equivalent of 'abandonment'. He can live with having miscalculated the making of war, possibly; but his concience won't let him rest for having left people to some awful fate).

Two, he has come to view the *whole* effort as a struggle of wills, which every war-of-attrition is truly to some extent. In other words there is a grain of truth in his view that naysayers cannot simply ignore.

If the goal is to dis-incent the Iraqis from consuming the "free" public goods (security or military presence, such as they are) that the MNF is providing, there is currently a legitimate political debate about how to manage that. One camp believes that threatening an end to that incents 'hard choices'. Another believes that such threats introduce an unwanted end-game calculus, and that, ultimately, 'trust-is-all-you-got' -- one simply picks people who seem to be "good" (by looking them in the eye?) and gives them full backing, without strings.

Whatever the case, Bush-43 doesn't exude the airs of a military genius. He has formidable political skills and acumen, but they haven't seem to transfer over into the skills needed to master a military campaign of the size of a "GWOT". Or, as is at least as likely, they all hoped too much for the best at the outset and were slow to retrofit, putting a primacy on political calulations (re-election? Executive powers?) over military one.

Of course, the Iraqi conflict isn't "lost" (without possibilities). Sometimes, I think that the military are, in the past nine months or so, just getting up to the full task of real-time intelligence and cross-coordinated operations and so forth (although that is a very, very subjective judgement, as it must be, without any real, systematic information from the government on the overall campaign). The old saying is that one drowns just two feet below the surface.

The Military has flexed its political muscle, already. They got Rumsfeld dismissed. It took longer than one might estimate, but it happened.

Whether a political crisis about how to handle the war spills over into a consitutional brinkmanship is perhaps possible. Perhaps such a thing will be handled the Italian way, in which an indictment is passed around on a wholly unrelated matter, rather than face-up to the constitutional problem, or the political contest of wills, at hand.

(Bart, I agree there is much of interest in the military blogs, but Hugh Hewitt? Please!, that guy is so discredited on military issues that it isn't worth it: http://seenreconstructed.blogspot.com/2006/11/election-year-rejects.html)
 

As zealous advocate, a lawyer may treat a molehill of evidence in his favor as a mountain, while ignoring the mountain of evidence on the other side. A lawyer filing a brief may cherry pick and cite out of context to make his client's case sound as strong as possible. These are the very things Bart does. But it is never permissible to falsify, and Bart does not.

I have, of course, seen attorneys in litigation behave the way you describe (not all that many, fortunately, but a few). I don't consider them ethical or even effective -- I find that if you keep them talking to the same judge long enough, they generally lose all credibility and the judge loses all patience.
 

PMS_Chicago said...

BTW, the Senate Intelligence committee and the British parliament's Butler Commission already examined the charge of whether the prewar intelligence was "cooked" and both unanimously found that it was not.

Neither of which are courts, if I'm not mistaken.

The Senate findings were approved by all the members of both parties. If there was anything to that charge, fair or unfair, the Dems would have dissented.

As for the "beef" of the argument, maybe we should make a mini reading group and read her book and see what we think of the arguments and evidence presented therein.

For an excerpt, go here:

http://www.alternet.org/rights/44815/

Other tastes can be had at Amazon via the excerpt and "surprise me!" button. (I hit that button with dread. One day they might actually surprise me.)

Your original position was that no one could make a case that the President had broken any laws worthy of impeachment. I thought it amusing that I had just read an excerpt of a book proposing to do just that.

Good heavens, Ms. de la Vega admits that she neither seeks to prove that Mr. Bush lied or even that he did not subjectively believe the opinions he gave concerning the risks posed by Iraq. Rather, she is claiming that the President may not make a persuasive argument presenting one side of an issue which is disputed amongst the people in his administration without committing fraud upon the American people.

In that case, every President of which I am aware is guilty of felony fraud.

The problem with Ms. de la Vega's argument is that she ignores the mens rea or intent element of the crime.

The intent required for a conspiracy to defraud the government is that the defendant possessed the intent (a) to defraud, (b) to make false statements or representations to the government or its agencies in order to obtain property of the government, or that the defendant performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government. It is sufficient for the government to prove that the defendant knew the statements were false or fraudulent when made. The government is not required to prove the statements ultimately resulted in any actual loss to the government of any property or funds, only that the defendant's activities impeded or interfered with legitimate governmental functions. See United States v. Puerto, 730 F.2d 627 (11th Cir.), cert. denied, 469 U.S. 847 (1984); United States v. Tuohey, 867 F.2d 534 (9th Cir. 1989); United States v. Sprecher, 783 F. Supp. 133, 156 (S.D.N.Y. 1992)(þit is sufficient that the defendant engaged in acts that interfered with or obstructed a lawful governmental function by deceit, craft, trickery or by means that were dishonest"), modified on other grounds, 988 F.2d 318 (2d Cir. 1993).

http://www.usdoj.gov/usao/eousa/
foia_reading_room/usam/title9/crm00923.htm

While I have not read Ms. de la Vega's book, I do not see in your linked excerpt from her book how she plans to prove Mr. Bush (a) performed acts or made statements that he knew to be false, fraudulent or deceitful to a government agency (b) which disrupted the functions of the agency or of the government.

If she does not plan to prove that Mr. Bush lied, then how does Ms. de la Vega intend to prove that Mr. Bush made statements that he knew to be false, which is lying?

Even more incredibly, how can the President, who is the chief executive, disrupt the activities of one of his agencies by issuing orders to that agency?

Apparently, Ms. de la Vega has no trouble engaging in conspiracy theories and assuming facts not in evidence in her writing. In one piece, she alleges without knowing the facts that the Administration engaged in a conspiracy to out Valerie Plame.

http://www.tomdispatch.com/index.mhtml?
pid=11747

However, we now know that there was no such conspiracy and a critic of the war in the State Department accidentally revealed enough information to Robert Novak so that he identified Plame.

Thus, I wonder how many other facts not in evidence she is assuming in her book calling for the impeachment of the President?
 

Mark Field:

I have, of course, seen attorneys in litigation behave the way you describe (not all that many, fortunately, but a few). I don't consider them ethical or even effective -- I find that if you keep them talking to the same judge long enough, they generally lose all credibility and the judge loses all patience.

Pardon me, perhaps I was being overly cynical. I suppose in my experience, this is what lawyers do when they have a lousy case. Not all lawyers get to choose which cases to take, after all. An insurance defense lawyer gets stuck with whoever the company insures. And a public defender gets the very bottom of the barrel. So sometimes they have no choice but to make the most of a bad case or a bad client.

Of course, Bart chose to advocate for the Bush Administration, and that is where the analogy fails.
 

While I have not read Ms. de la Vega's book, I do not see in your linked excerpt from her book how she plans to prove Mr. Bush (a) performed acts or made statements that he knew to be false, fraudulent or deceitful to a government agency (b) which disrupted the functions of the agency or of the government.

If she does not plan to prove that Mr. Bush lied, then how does Ms. de la Vega intend to prove that Mr. Bush made statements that he knew to be false, which is lying?

That's why I think we should read the book to check her specific argument. In the excerpts in between she makes a fairly narrow case on the basis that Bush and a few key advisors committed fraud by intentionally misrepresenting the facts in place. The question is not whether it was a good idea to hold back contradictory information form the public and Congress--it very well may have been. The question is whether that information was withheld, and whether that information might have affected how Congress made its decisions on whether to go to war in Iraq or not.
That would constitute "interference" with legitimate governmental functions, and would open them to conspiracy charges.

Of course, the case is helped by the fact that many senior administrators had been calling for an invasion of Iraq long before 2003, so their desire to invade was well-documented.
 

I thought FISA had been law since the 1970s, which GWB has repeatedly violated with boastful pride. I thought we had a right against warrantless searches, which GWB has repeatedly violated. So one a law, the other a constitutional guarantee, two cases where the Leader violated both the law and the constitution. As Leader, he swears to uphold the Constitution. He isn't. Isn't a breach of oath a capital crime of treason?
 

The question is not whether it was a good idea to hold back contradictory information form the public and Congress--it very well may have been. The question is whether that information was withheld, and whether that information might have affected how Congress made its decisions on whether to go to war in Iraq or not. That would constitute "interference" with legitimate governmental functions, and would open them to conspiracy charges.

I don't think you have to go so far as to prove violation of a statute in order to make this conduct an impeachable offense. At least according to James Iredell, an *ahem* unimpeachable Founding Father, misrepresenting facts to Congress in order to start a war would be grounds for impeachment.
 

"Isn't a breach of oath a capital crime of treason?"

No, because "treason" is specifically defined in the Constitution, and breaching the oath of office isn't how it's defined.

Besides, if an objective violation of the President's (Or members of Congress...) oath to uphold and defend the Constitution were a capital crime, we'd have to put most of the government to death.
 

The Gay Species said...

I thought FISA had been law since the 1970s, which GWB has repeatedly violated with boastful pride. I thought we had a right against warrantless searches, which GWB has repeatedly violated. So one a law, the other a constitutional guarantee, two cases where the Leader violated both the law and the constitution. As Leader, he swears to uphold the Constitution. He isn't. Isn't a breach of oath a capital crime of treason?

The courts have unanimously held that:

1) The 4th Amendment does not require warrants for surveillance of foreign groups or their agents for the purpose of intelligence gathering.

2) The President has the inherent authority to gather such foreign intelligence.

The question is whether Congress has the authority pursuant to a provision of Article I to limit the recognized presidential power by enacting FISA.

There is no provision of Article I which grants Congress the power to choose targets of intelligence gathering nor is there any case law interpreting a broader provision of Article I to allow Congress to do so.
 

pms:

Here is a link to Ms. de la Vega' mock indictment of President Bush. I have printed out and will read it later this weekend. If you are interested, read it yourself and we can discuss it.
 

Ooops! Here is the link...

http://www.truthout.org/docs_2006/
112906N.shtml
 

Thanks for the link! I'm not sure if they're going to publish the rest of the book in serials on that site, but at least the nuts and bolts are better laid out across the three excerpts.

One preliminary critique is that she occasionally uses the lack of an operational nuclear weapons program as proof that general comments on WMDs were false. Obviously, WMDs aren't limited to nuclear weapons. However, there isn't any compelling evidence in respect to other kinds of WMDs being "amassed" in the pre-war period by Iraq, either.
 

"Bart" DePalma (quoting the law):

The intent required for a conspiracy to defraud the government is that the defendant possessed the intent ... to make false ... representations to the government or its agencies in order to obtain property of the government, or that the defendant performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government.

Monetary gain (or such type thing) is not required. Nor is an actual false statement. Deception resulting in disruption (can you say "Iraqgate"?) suffices.

Cheers,
 

"Bart" DePalma illustrates his scintillating 'logic':

Apparently, Ms. de la Vega has no trouble engaging in conspiracy theories and assuming facts not in evidence in her writing. In one piece, she alleges without knowing the facts that the Administration engaged in a conspiracy to out Valerie Plame.

http://www.tomdispatch.com/index.mhtml?
pid=11747

However, we now know that there was no such conspiracy and a critic of the war in the State Department accidentally revealed enough information to Robert Novak so that he identified Plame.

Talk about "facts not in evidence", this is the pot calling the china cup black.

And this ignores the fact that Armitage was harldy a maladministration foe, and that whether Armitage was the first to reveal to Novak Plame's job, this hardly precludes (logically or otherweise) a conspiracy to "out" her, nor does it mean in any way that others didn't "out" her as well ... as is obvious from the fact the both Rove and Libby are known to have revealed her job function to reporters. "Bart" here should know better, but thinks that the readers of Balkinization are so stoopid that they will fall for his specious 'logic'. In fact, peddling this nonsense just makes "Bart" himself look stoopider than he is.

Cheers,
 

"Bart" DePalma is just plain wrong:

The courts have unanimously held that:

1) The 4th Amendment does not require warrants for surveillance of foreign groups or their agents for the purpose of intelligence gathering.

2) The President has the inherent authority to gather such foreign intelligence.

"Bart" needs to get off the WhirledNutzDaily page and read a freakin' newspaper. He may disagree with Judge Diggs, but to pretend she issued no ruling is just plain dishonest.

Cheers,
 

"Bart" DePalma ignores substantive ojections and trots out the same lame old "straw man":

There is no provision of Article I which grants Congress the power to choose targets of intelligence gathering nor is there any case law interpreting a broader provision of Article I to allow Congress to do so.

No one has inssted that Congress can (or should) do so.

It's a basic point. That "Bart" continues to try to obfuscate the issue by throwing up the "straw man" of "direct[ing] intelligence" just shows that he really doesn't want to discuss the issues honestly.

Cheers,
 

pms:

Ms. de la Vega's mock indictment charges:

Beginning on or about a date unknown, but no later than August of 2002, and continuing to the present, in the District of Columbia and elsewhere, the defendants, GEORGE W. BUSH, RICHARD B. CHENEY, CONDOLEEZZA RICE, DONALD M. RUMSFELD, and COLIN M. POWELL, and others known and unknown, 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.

In a nutshell, Ms. de la Vega alleges that the President defrauded Congress and fooled the poor naifs in the coequal branch of government to vote overwhelmingly to go to war.

There are a couple major problems with this allegation that immediately come to mind:

1) The defrauding the government charge has been stretched past normal fraud to include private citizens disrupting the activities of an executive agency. However, I am unaware of such a charge being levied in the past against an elected representative and/or for "disruption" of the legislative process of Congress. I am not an expert in this area, though. Perhaps someone else here knows of such cases.

2) An allegation that the President fooled Congress into voting to go to war would be one of the clearest examples of a non justciable political question which the courts could find.

The most direct example I could find was where the United States District Court for the District of Massachusetts dismissed a case challenging the Presidents power to go to war pursuant to the AUMF, finding that this was a political question between the elected branches.

http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=tauro/pdf/iraqappendix.pdf

In another analogous case concerning an executive ordered foreign intervention, the DC Circuit court rejected a claim by alleged victims of the Pinochet regime against Henry Kissinger for allegedly supporting the Pinochet coup. Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005).

In short, de la Vega is attempting to criminalize the political process.
 

"Bart" DePalma says:

In a nutshell, Ms. de la Vega alleges that the President defrauded Congress and fooled the poor naifs in the coequal branch of government to vote overwhelmingly to go to war.

Not only is it the allegation, it's pretty much exactly what happened, on the best evidence.

There are a couple major problems with this allegation that immediately come to mind:

1) The defrauding the government charge has been stretched past normal fraud to include private citizens disrupting the activities of an executive agency. However, I am unaware of such a charge being levied in the past against an elected representative and/or for "disruption" of the legislative process of Congress....

Not sure why that should be an obstacle to a criminal indictment, much less an impeachment. If "Bart" is of the opinion that a gummitn job ought to convey immunity not available to a citizen for the same crime, it is incumbent on him so demonstrate that such a qualified immunity exists. FWIW, it's these kinds of crimes by the executive that are perhaps best handled by Congressional impeachment as necessary.

... I am not an expert in this area, though. Perhaps someone else here knows of such cases.

"... I just play one on the Internets."

2) An allegation that the President fooled Congress into voting to go to war would be one of the clearest examples of a non justciable political question which the courts could find.

"Bart" produces no argument, nor any precedent, for this claim. It's just a bald naked assertion on his part and should be treated as such. I'd note, however, that in the instant case under consideration, the topic is impeachment by the legislature, and the courts have essentialy no role in that.

The most direct example I could find was where the United States District Court for the District of Massachusetts dismissed a case challenging the Presidents power to go to war pursuant to the AUMF, finding that this was a political question between the elected branches.

http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=tauro/pdf/iraqappendix.pdf"

All this case says is that foreign policy questions are to be ironed out between Congress and the executive and that courts have no role to play in that, as long as political branches have their own recourse. From the opinion:

"As a general proposition, the conduct of this country's foreign relations involve political issues that the Constitution commits for resolution to the political branches of government -- the Executive and Legislative. Absent a clear abdication of this constitutional responsibility by the political branches, the judiciary has no role to play. For example, should it become apparent that the political branches, themselves, are clearly and resolutely in opposition as to the military policy to be followed by the United States, then the situation would have gone beyond that of a political question and would pose a serious constitutional issue requiring resolution by the judicial branch. And so, a federal court may judge the war policies of the political branches only when the actions taken by Congress and those taken by the executive manifest clear, resolute conflict."

Id.

In the case "Bart" cites, it was citizens (albeit some of them members fo Congress) that had made the complaint, and no "resolute conflict" between the executive and the legislature was found.

In another analogous case concerning an executive ordered foreign intervention, the DC Circuit court rejected a claim by alleged victims of the Pinochet regime against Henry Kissinger for allegedly supporting the Pinochet coup. Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005).

"Bart" fails to explain how this is relevant.

In short, de la Vega is attempting to criminalize the political process.

Nope. In particular, as I explained above, the political process was functioning in the first case "Bart" claimed, and the courts found nothing to resolve. Should Congress find that Dubya had indeed been deceitful, that's another matter.

Also, de la Vega has never claimed that disagreement between the branches (a "political" dispute that may in fact bring the courts in to the dispute) is a criminal act. Instead, she has stated that specific actions by Dubya were deceitful and injurious to gummint function. That's an entirely different situation from a run-of-the-mill "political" spat.

Lastly, as pointed out above, this is a question of whether Congress can impeach the preznit, not whether federal courts are required to abstain from a dispute between the political bodies.

Cheers,
 

Arne:

In her introduction piece, de la Vega acknowledges that this fantasy of hers would be preempted by the impeachment requirement and that there isn't a chance in hell that Congress would impeach the President under these fantasy charges.

http://www.truthout.org/
docs_2006/112806O.shtml

Instead of impeachment or a fantasy trial, de la Vega is using as a grand stand a legal proceeding which would be under a prosecutor's complete control and has been jokingly said to give the prosecutor the power to indict a ham sandwich. In that way, de la Vega does not have to bother with pesky things like cross examination and contrary evidence in her fantasy.

Others here offered de la Vega's fantasy of criminally trying the President of the United States as evidence of criminal wrongdoing and I am along for the ride for the intellectual exercise as a defense attorney.

Once I finish up digging out of our latest Rocky Mountain snow, I'll have some fun giving the grounds for my fantasy motion to dismiss her ham sandwich indictment.
 

I just returned from the "schmooze," which is why I didn't respond to some earlier posting. What I was thinking when I pronounced "Hey, Hey...." a "mistake" is that it both unhelpfully personalized the war--both then and now, I think that JFK and his sterling Harvard advisors were more culpable in getting us into Vietnam than LBJ--and antagonized those who either supported the war or (a somewhat different point) supported the troops.

One other point: One of the reasons I would far prefer a Constitution that allowed a vote of no-confidence on grounds of incompetence is that it would spare us the kind of legalistic discussions featured in this thread about whether George Bush has committed an impeachable offense. Whether a person is fit to be president is not a question that lawyers as lawyers have anything useful to contribute. (My denunciations of Bush are based on my being a citizen of the United States, not any special knowledge I may have as a lawyer.) This is not to say that all discussions of Bush's fidelity to law are useless: I cherish Marty Lederman's analyses of FISA and the like. But the truly awful thing about impeachment discussions, whether with regard to Clinton or Bush, is that the lawyers take over and shift the discussion away from the presidents's actual competence. Moreover, as is certainly manifested on this very thread, it is next to impossible to believe in the separation of one's "legal analysis" from one's views on the political merits. Far, far better that we were having a discussion of the later. I continue to find it striking that not a single ond of the presumptive conservatives on this thread has offered a vigorous defense of George W. Bush as the person we need at the helm right now (and for the next 26 months). Instead, we are discussing the next-to-irrelevant arcana of whether Bush committed a legal offense in the means by which he got us into this war.

Look, you know and I know that there there is, under the Constitution, no possibility of dumping Bush via a vote of no confidence, and that he is not going to be impeached, so he will be President until Jan. 20, 2009. That scarces some of us half to death. Does it really please the others of you on this list? (Imagine a one time magic wand, with no precedential value (like Bush v. Gore :) ) that could dump Bush-Cheney and replace them with other Republicans (since, from the beginning, I have resolutely indicated my opposition to any procedure which would allow a change in party control of the White House without an election). Would you--i.e., the conservatives on this thread--refuse to wave the wand because you are so delighted to have Bush-Cheney working their will?
 

Professor Levinson: What I was thinking...

Props again to Mark for correcting me, and thanks, Prof, for clarifying.

Professor Levinson: Does it really please the others of you on this list?

A rhetorical question, surely. You know full well at least a couple of your readers are just fine with the prospect. Bush still has his fans. But even if we all agreed, it would not follow that we all would agree it was worth the grave risks of a new Convention. Bush is a blight on our nation's history. But the constitution that would come from any modern convention, in the same cultural milieu that has produced travesties like AUMF, the illegal invasion in Iraq, H.R. 3162 (the so-called "patriot" act), the MCA, and the other insanities of the "war on terror," any such constitution is destined to be infinitely worse than what we currently labor under.
 

I cannot answer for the hardened Conservatives, but, for myself, I'm not so sure that parliamentary-style leadership is objectively superior. We have a set of circumstances in current US politics in which it does appear to be so, but, if I were in a creative mood, I'd bet that I could find instances in which a parliamentary-style government introduces unwanted instability.

All told, I tend to be more worried about our two-party system (a non-constitutional evolution) which is biased toward "dis-progress" (too much stability) and money-politics.

As for Bush himself, his incompetence (to my mind) was on full display in 2004, regarding the making and planning of war, so, following that election surprise, I'm left with only two hopes (a) that those in his Party, who have to face the electorate again, will have a balancing effect on anything wildly untoward in his policy choices (i.e. inter-group containment, not intra-group) (b) that, if you come to be President, there has to be some floor on incompetence (o.k., o.k., I said it was a "hope", not a fact).

What's more, I think that a lot of what people think of as incompetence derives from two different fact-sets that people have about what is going on inside Iraq - one that things are bad but salvageable and moving along and another that things are ... well, humpty-dumpty at this point. This is true *before* one even gets to opinions about whether the civilian leadership and/or the military have responded quickly or adeptly or have a workable strategy. It's like being in a un-classified information fog.

Last, if I had to pinpoint a constitutional crisis going on, it is in placing an investigation of war crimes below what is in the National Interest, *right now*. How does one constitutionally sweep justice under the rug like that, if that is the right way to think about it? Perhaps, soft-pedal is the right judgment given that inquires might grind governance to a halt at a time when the military is deployed overseas, but my spider-sense says that those stones are not going to remain unturned and waiting is not going to make bad news better, to be cliché about it.

If one wanted, you could trace the constitutional crisis that we now have with an unwanted Presidential policy back to the failure that occured when the Congress voted war authority, perhaps prematurely and without sufficient oversight. It would appear that, in our system, it takes a while for a 'failure' of that sort to work its way through the system to right itslef, so to speak.

anyway, just 2-cents (and probably 2-4 paragraphs too long).
 

Now that I have had a chance to fully read Ms. de la Vega's ham sandwich indictment, this should not be difficult to dismiss:

Let us start with the elements of her single charge:

12. As used in Section 371, the term "to defraud the United States" means "to interfere with or obstruct one of its lawful government functions by deceit, craft, trickery, or at least by means that are dishonest." The term also means to "impair, obstruct, or defeat the lawful function of any department of government" by the use of "false or fraudulent pretenses or representations."

13. A "false" or "fraudulent" representation is one that is: (a) made with knowledge that it is untrue; (b) a half-truth; (c) made without a reasonable basis or with reckless indifference as to whether it is, in fact, true or false; or (d) literally true, but intentionally presented in a manner reasonably calculated to deceive a person of ordinary prudence and intelligence. The knowing concealment or omission of information that a reasonable person would consider important in deciding an issue also constitutes fraud.

This is a correct statement of the law. In a nutshell, Ms. de la Vega needs to prove that her defendants made a false statement of fact that the speaker knew or recklessly disregarded was false when the statement was made. As we will see, she fails in this effort in all but one statement and that statement is irrelevant to her charge.

14. Congress is a "department of the United States" within the meaning of Section 371. In addition, hearings regarding funding for military action and authorization to use military force are "lawful functions" of Congress.

This is highly debatable proposition for which Ms. de la Vega provides no legal authority. The Congress is not generally considered to be a department of the government. Departments are executive subdivisions like Departments of Defense, Interior, Energy, Education, etc.

15. Accordingly, the presentation of information to Congress and the general public through deceit, craft, trickery, dishonest means, and fraudulent representations, including lies, half-truths, material omissions, and statements made with reckless indifference to their truth or falsity, while knowing and intending that such fraudulent representations would influence Congress' decisions regarding authorization to use military force and funding for military action, constitutes interfering with, obstructing, impairing, and defeating a lawful government function of a department of the United States within the meaning of Section 371.

This is an even more highly doubtful allegation. As I posted above, a court is likely to find this is a non justiciable political question. Ms. de la Vega attempts to criminalize executive persuasive arguments to Congress whenever there is a dispute within the executive over which course to take on an issue. Absurd on its face.

OK, next let us take a look at all the overt acts which are supposed to make up the Government's evidence of fraud.

Before we address each listed act individually, I would note a number of serious problems with her allegations:

1) There is no evidence given in this ham sandwich indictment that a single member of Congress changed his or her vote to enact the AUMF to liberate Iraq based on any of these overt acts.

2) The intelligence which formed the basis of some of these statements / overt acts was available to the Congressional intelligence committees, so Congress could not be realistically "fooled" by any of the overt acts even if they were false.

3) Members of both parties with access to the intelligence said the same things or were even more belligerent in their own statements calling for the AUMF.

4) There is no evidence given in this ham sandwich indictment of any conspiracy between Mr. Bush and anyone else agreeing that either Mr. Bush or another speaker would give the alleged statement with an intent to convince Congress to approve the AUMF.

5) After nearly every overt act, de la Vega declines to present any actual evidence that the preceding statement is false. Instead, de la Vega merely makes an allegation of falsehood.

Now, let us take a look at each allegation:

A. On December 9, 2001, CHENEY announced on NBC's Meet the Press that "it was pretty well confirmed" that lead 9/11 hijacker Mohamed Atta had met the head of Iraqi intelligence in Prague in April 2001, which statement was, as CHENEY well knew, made without reasonable basis and with reckless disregard for the truth, because it was based on a single witness's uncorroborated allegation that had not been fully investigated by U.S. intelligence agencies.

This is in no way false. Undisputed testimony is confirmation. You do not need two or more witnesses to confirm an allegation.

B. On July 15, 2002, POWELL stated on Ted Koppel's Nightline: "What we have consistently said is that the President has no plan on his desk to invade Iraq at the moment, nor has one been presented to him, nor have his advisors come together to put a plan to him," which statement was deliberately false and misleading in that it deceitfully implied the President was not planning an invasion of Iraq when, as POWELL well knew, the President was close to finalizing detailed military plans for such an invasion that he had ordered months previously.

Powell was being misleading in this statement. As with all major military operations, the liberation of Iraq was planned over a series of months prior to initiation. However, this statement does not address any grounds for approving the AUMF. Therefore, how is it relevant to de la Vega's charge? Said another way, how is this statement reasonably calculated to convince a member of Congress to vote for the AUMF?

C. On August 26, 2002, CHENEY made numerous false and fraudulent statements including: "Simply stated there is no doubt that Saddam Hussein now has weapons of mass destruction. There is no doubt that he is amassing them to use against our friends, against our allies, and against us," when, as CHENEY well knew, this statement was made without reasonable basis and with reckless indifference to the truth in that the IC's then prevailing assessment was that Iraq had neither nuclear weapons nor a reconstituted nuclear weapons program.

At this point, I stopped taking de la Vega seriously. WMD are commonly considered to be chemical, biological and nuclear weapons. de la Vega falsely and probably knowingly claimed that only nuclear weapons are WMD. This is abusive prosecutorial misconduct if de la Vega did this in real life.

D. On September 7, 2002, appearing publicly with Blair, BUSH claimed a recent IAEA report stated that Iraq was "six months away from developing a [nuclear] weapon" and "I don't know what more evidence we need," which statements were made without basis and with reckless indifference to the truth in that: (1) the IAEA had not even been present in Iraq since 1998; and (2) the report the IAEA did write in 1998 had concluded there was no indication that Iraq had the physical capacity to produce weapons-usable nuclear material or that it had attempted to obtain such material.

de la Vega continues to mislead the grand jury. She falsely alleges that Mr. Bush said that he was referring to a recent report of the IAEA which made this finding. Mr. Bush never said this. Rather, the press assumed that he was referring to a recent report.

To clear up the confusion, Mr. McClellan cited two news articles from 1991 — a July 16 story in the London Times by Michael Evans and a July 18 story in the New York Times by Paul Lewis. But neither article cites an IAEA report on Iraq's nuclear-weapons program or states that Saddam was only six months away from "developing a weapon" — as claimed by Mr. Bush.

The article by Mr. Evans says: "Jay Davis, an American expert working for the U.N. special commission charged with removing Iraq's nuclear capability, said Iraq was only six months away from the large-scale production of enriched uranium at two plants inspected by UN officials."

The Lewis article said Iraq in 1991 had a uranium "enrichment plant using electromagnetic technology [that] was about six months from becoming operational."

http://www.commondreams.org/
headlines02/0927-08.htm

Good luck to Ms. de la Vega trying to convince a jury that Mr. Bush intentionally mislead Congress with this statement when his press secretary immediately corrected the confusion.

E. On September 8, 2002, on Late Edition with Wolf Blitzer, RICE asserted that Saddam Hussein was acquiring aluminum tubes that were "only suited" for nuclear centrifuge use, which statement was deliberately false and fraudulent, and made with reckless indifference to the truth in that it omitted to state the following material facts: (1) the U.S. intelligence community was deeply divided about the likely use of the tubes; (2) there were at least fifteen intelligence reports written since April 2001 that cast doubt on the tubes' possible nuclear-related use; and (3) the U.S. Department of Energy nuclear weapons experts had concluded, after analyzing the tubes's specifications and the circumstances of the Iraqis' attempts to procure them, that the aluminum tubes were not well suited for nuclear centrifuge use and were more likely intended for artillery rocket production.

And there were several other reports, including one by French intelligence, that the machining on the aluminum tubes was far finer than needed for artillery and only made sense if used for a centrifuge.

Once again, de la Vega attempts to criminalize the fact that the executive made a decision to accept one side of an argument and make that argument to Congress. Congress' intelligence committees had access to the same information as did the executive.

F. On September 8, 2002, RUMSFELD stated on Face the Nation: "Imagine a September 11th, with weapons of mass destruction. It's not three thousand, it's tens of thousands of innocent men, women and children," which statement was deliberately fraudulent and misleading in that it implied without reasonable basis and in direct contradiction to then prevailing intelligence that Saddam Hussein had no operational relationship with al Qaeda and was unlikely to provide weapons to terrorists.

This is a hypothetical speculation of a possible future. Therefore, this statement cannot be considered a true or false statement of past or present fact.

G. On September 19, 2002, RUMSFELD told the Senate Armed Services Committee that "no terrorist state poses a greater or more immediate threat to the security of our people than the regime of Saddam Hussein," which statement was, as Rumsfeld well knew, made without reasonable basis and with reckless indifference to the truth in that: (1) Hussein had not acted aggressively toward the United States since his alleged attempt to assassinate President George H. W. Bush in 1993; (2) Iraq's military forces and equipment were severely debilitated because of UN sanctions imposed after the 1991 Gulf War; (3) the IC's opinion was that Iraq's sponsorship of terrorists was limited to ones whose hostility was directed toward Israel; and (4) Iran, not Iraq, was the most active state sponsor of terrorism.

This is an opinion, not a statement of past or present fact which can be true or false. Incredibly, de la Vega claims that Rumsfeld's opinion is somehow false because the "intelligence community" has a different opinion.

H. On October 1, 2002, the defendants caused the IC's updated classified National Intelligence Estimate to be delivered to Congress just hours before the beginning of debate on the Authorization to Use Military Force. At the same time, the defendants caused an unclassified "White Paper" to be published which was false and misleading in many respects in that it failed to include qualifying language and dissents that substantially weakened their argument that Iraq posed a serious threat to the United States.

Unreal. Now de la Vega claims that making a persuasive argument to the senate without presenting all possible opinions is somehow a fraud on the Congress. de la Vega better be careful with this line of argument. I would turn around and tell the court that , under de la Vega's own reasoning, she is committing a fraud on the Court by presiding only one side of the argument in her indictment.

I. On October 7, 2002, in Cincinnati, Ohio, BUSH made numerous deliberately misleading statements to the nation, including stating that in comparison to Iran and North Korea, Iraq posed a uniquely serious threat, which statement BUSH well knew was false and fraudulent in that it omitted to state the material fact that a State Department representative had been informed just three days previously that North Korea had actually already produced nuclear weapons. The defendants continued to conceal this information until after Congress passed the Authorization to Use Military Force against Iraq.

Once again, this is an opinion.

J. Between September 1, 2002, and November 2, 2002, BUSH traveled the country making in excess of thirty congressional-campaign speeches in which he falsely and fraudulently asserted that Iraq was a "serious threat" which required immediate action, when as he well knew, this assertion was made without reasonable basis and with reckless indifference to the truth.

Opinion.

K. In his January 28, 2003 State of the Union address, BUSH announced that the "British have recently learned that Iraq was seeking significant quantities of uranium from Africa" which statement was fraudulent and misleading and made with reckless disregard for the truth, in that it falsely implied that the information was true, when the CIA had advised the administration more than once that the allegation was unsupported by available intelligence.

This statement is an absolutely true statement of fact and the British commission investigation of their prewar intelligence found that the report had a reliable basis.

The former Niger PM told Joe Wilson during his tea drinking tour that the Iraqis had sent a delegation in in 1998 to establish trade ties, which the PM took as uranium trade because Niger does not produce anything else that Iraq imports.

L. In a February 5, 2003, speech to the UN, POWELL falsely implied, without reasonable basis and with reckless disregard for the truth, that, among other things: (1) those who maintained that Iraq was purchasing aluminum tubes for rockets were allied with Saddam Hussein, even though POWELL well knew that both Department of Energy nuclear weapons experts and State Department intelligence analysts had concluded that the tubes were not suited for nuclear centrifuge use; and (2) Iraq had an ongoing cooperative relationship with al Qaeda, when he well knew that no intelligence agency had reached that conclusion.

See reply to the same allegation made against Ms. Rice.

M. On March 18, 2003, BUSH sent a letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate which asserted that further reliance on diplomatic and peaceful means alone would not either: (1) adequately protect United States national security against the "continuing threat posed by Iraq" or (2) likely lead to enforcement of all relevant UN Security Council resolutions regarding Iraq, which statement was made without reasonable basis and with reckless indifference to the truth in that, as BUSH well knew, the U.S. intelligence community had never reported that Iraq posed an urgent threat to the United States and there was no evidence whatsoever to prove that Iraq had either the means or intent to attack the U.S. directly or indirectly. The statement was also false because, as BUSH well knew, the UN weapons inspectors had not found any weapons of mass destruction in Iraq and wanted to continue the inspection process because it was working well.

Opinion.

N. In the same March 18, 2003 letter, BUSH also represented that taking action pursuant to the Resolution was "consistent with continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed, or aided the terrorists attacks that occurred on September 11, 2001," which statement was entirely false and without reasonable basis in that, as BUSH well knew, Iraq had no involvement with al Qaeda or the terrorist attacks of September 11, 2001.

de la Vega is again attempting to perpetrate a fraud on her grand jury. The 9/11 commission did not say that Iraq had no involvement with al Qaeda and Bush did not claim that al Qaeda was involved in 9/11.

The evidence is substantial that Iraq was sheltering and was in ongoing contact with al Qaeda.

During the initial stages of the liberation of Iraq, the SF and Kurdish engaged 1500 al Qaeda in Operation Viking Hammer and recovered documents that many were al Qaeda from Afghanistan, found chemical weapons facilities and were told by captured al Qaeda who their Iraqi intelligence contact was.

See Master of Chaos by Linda Robinson, p. 298-315.

Subsequently, the CIA has released several captured Iraqi documents detailing Iraqi communications with Iraq over the years, Iraqi training of foreign suicide bombers and a full report of Zarqawi in Iraq recruiting Iraqis to fight in Afghanistan against US troops.

I can provide the links to the translated documents if you are interested.

In conclusion, as I posted before, "Bush lied and People Died" may make a bad bumper sticker, but it does not state a crime.
 

Bart: ...ham sandwich indictment...

Ya got a friendly chuckle on that one, at least on its first appearance in your screed. I only know it as from an anonymous attorney. If you've got a better attribution I'd be happy to hear it.

It's downhill from there, of course, as the rest of your post exemplifies the methods I warned of in an earlier comment on this same thread. It'll be a joy to watch the gang hold your feet to the fire on this one.
 

Robert:

You are welcome to provide the evidence and the legal foundation which de la Vega declines to give us...

No metaphysics please. Channel Joe Friday and just give us the facts.
 

This comment has been removed by a blog administrator.
 

When I first heard that ham sandwich bit it was 1995. There was no google. There was no wikipedia. I don't know that I had even discovered Alta Vista yet. And so I took the quote as offered to me, "from an anonymous attorney." But today things are better, and google lead me to this wikipedia entry. Life is good.
 

I second Amicus comment that about the two party system and his comment that parliamentary have their own institutional problems.

To give you an example of these problems: In Holland there was an election for our House of Representatives. Our administration is dependend on the confidence of a majority in the House. There is no longer a majority in favor of our former administration and therefore a new one must be formed.

During this formation process the old administration stays on as "lame ducks". The election resulted in a left leaning majority (too small and fractured to lead to an administration) that immediately held a vote on a controversial immigrant amnesty program. There was a majority (75 to 74, 1 vote not cast) for the amnesty program.

Now there is a deadlock: the administration hides behind its lame duck status, while there is no chance that this left leaning majority will get to govern. The left leaning majority has promised to have a vote of non confidence on the secretary of immigration if the lame duck administration fails to support the motion.
 

During the initial stages of the liberation of Iraq, the SF and Kurdish engaged 1500 al Qaeda in Operation Viking Hammer and recovered documents that many were al Qaeda from Afghanistan, found chemical weapons facilities and were told by captured al Qaeda who their Iraqi intelligence contact was.

See Master of Chaos by Linda Robinson, p. 298-315.
===========
Bart, I've been interested in the after-action of this operation for a while, so thanks for the reference(because I've always thought of it as a poorly done op, like Tora Bora, and would like a better picture, if one exists).

Was the Iraqi Intelligence officer intel ever verified (or substantive), do you know?

The area in which Ansar al-Islam kept house was outside Saddam's control for quite some time.


"Subsequently, the CIA has released several captured Iraqi documents detailing Iraqi communications with Iraq over the years, Iraqi training of foreign suicide bombers and a full report of Zarqawi in Iraq recruiting Iraqis to fight in Afghanistan against US troops.

I can provide the links to the translated documents if you are interested."
===================
I'd be interested in the links - especially to look at the timeframe for these other communications, but also to clarify among whom these conversations took place.
 

Amicus said...

During the initial stages of the liberation of Iraq, the SF and Kurdish engaged 1500 al Qaeda in Operation Viking Hammer and recovered documents that many were al Qaeda from Afghanistan, found chemical weapons facilities and were told by captured al Qaeda who their Iraqi intelligence contact was.

See Master of Chaos by Linda Robinson, p. 298-315.
===========
Bart, I've been interested in the after-action of this operation for a while, so thanks for the reference(because I've always thought of it as a poorly done op, like Tora Bora, and would like a better picture, if one exists).

I have found that the most interesting military reporting concerning Afghanistan and Iraq is done by journalists writing books who embed with the soldiers about whom they are writing.

Embedding is very important because it allows the soldiers to gauge the writer and determine whether to trust him or her. Since Vietnam, the military in general has a fundamental distrust of the media, whom they consider uninformed at best and active propagandists for the enemy at worst.

Also, embedding allows the reporter, who often has no military background and whose politics tend to be left, to understand the how and why of military culture. Sharing the danger of the soldiers in the field tends to sharply clarify priorities for reporters.

Masters of Chaos is a very nice book on first person experiences of the SF over the past few wars. In this same vein, I would also recommend the book Imperial Grunts.

Was the Iraqi Intelligence officer intel ever verified (or substantive), do you know?

My military top secret clearance from the Persian Gulf War has most likely lapsed and military intelligence does not know I exist. In other words, this is classified material and unknown to me. I am surprised how much detail the SF did tell Robinson about these operations. Maybe they got sloppy and started telling war stories over drinks or maybe they wanted someone to report the truth for once.

The area in which Ansar al-Islam kept house was outside Saddam's control for quite some time.

Hardly. The Ansar al Islam base was outside of Kurdish territory and the group was actually at war with the Kurds. If Saddam wanted to eliminate this group, he could have with our blessing.

Zarqawi was an ally of al Qaeda in Afghanistan and led al Insar during this period. Insar was also aligned with al Qaeda. In 2002, during the Afghanistan War and before the liberation of Iraq, Zarqawi was recruiting fighters in the Sunni Triangle to go to Afghanistan and fight our troops. Therefore, the argument that al Insar / al Qaeda was restricted to Kurdish territory appears to be untrue.

"Subsequently, the CIA has released several captured Iraqi documents detailing Iraqi communications with Iraq over the years, Iraqi training of foreign suicide bombers and a full report of Zarqawi in Iraq recruiting Iraqis to fight in Afghanistan against US troops.

I can provide the links to the translated documents if you are interested."
===================
I'd be interested in the links - especially to look at the timeframe for these other communications, but also to clarify among whom these conversations took place.

Here are several links to source documents, independent translations with links to the source documents and articles by Stephen Hayes of the Weekly Standard who has been reporting on this subject for years. The translators usually have their own opinions of what the documents mean, but the translations allow you to make up you own mind.

These links go from general to specific and are in general chronological order.

The documents refer to various contacts with al Qaeda as well as the Iraq training to terrorists and the Iraqi plans to strike US targets. Eye opening stuff.

http://www.ctc.usma.edu/aq.asp

http://www.freerepublic.com/focus/
keyword?k=prewardocs

http://www.weeklystandard.com/Content/
Public/Articles/000/000/006/329paqcc.asp

http://www.freerepublic.com/focus/f-news/
1600579/posts

http://www.captainsquartersblog.com/mt/
archives/007505.php#comments

http://weeklystandard.com/Content/Public/
Articles/000/000/011/990ieqmb.asp

http://www.timesonline.co.uk/article/
0,,2092-2058597_3,00.html

http://www.captainsquartersblog.com/mt/
archives/007506.php#comments

http://www.freerepublic.com/focus/f-news/
1617431/posts

http://www.foxnews.com/story/
0,2933,202277,00.html

http://www.freerepublic.com/focus/f-news/
1610012/posts

http://rayrobison.typepad.com/ray_robison/

http://weeklystandard.com/Content/Public/
Articles/000/000/011/990ieqmb.asp2006/04/
pre_911_ts_doc_.html

http://www.freerepublic.com/focus/f-news/
1598259/posts

http://news.telegraph.co.uk/news/main.jhtml?
xml=/news/2006/03/26/
wsaddam26.xml&sSheet=/news/2006/03/26/
ixworld.html
 

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