The President and the Law of Lying

December 8, 2005

Vice President Dick Cheney has recently charged that those who raise questions concerning the president’s truth-telling are “reprehensible,” “corrupt,” and “shameless.” Cheney says that to claim presidential lying in the build-up to the Iraq war is to re-write history.

I once made my living in the law courts. As a matter of law we could bring an action when, in a business deal, someone pretended to know something was true when in fact he did not know whether it was true. According to the law, that is, lying is more than just consciously telling a falsehood; lying is also positively asserting as true something you do not really know. If you’re not sure, but you intend the other fellow to swallow your facts and depend upon them, that is fraud.

With this as a principle, if I had this case to bring before a jury, I would charge George Bush, Dick Cheney and Donald Rumsfeld with having made pre-war statements to the Congress that they asserted as true but which they knew either were not true or might not be true. I would say, further, that they made these statements with the intent to mislead the Congress and that these acts are covered under Title 18 of United States Code section 371 which makes it a crime to interfere with or impede the Congress’ war-making powers.

One could begin with the most obvious. Secretary of Defense Rumsfeld said in the build-up to war: “We know where the weapons of mass destruction are. They are north, south, east and west.” I would tell a jury, to the contrary, that Rumsfeld did not know. He knew that he was guessing. He did not tell the American people about the doubts that had been raised by his own defense intelligence advisors, within the Pentagon. He asserted as true a fact that he had been advised was not at all certain and did so with the purpose to intentionally mislead the American people and the Congress.

During this same time frame, Vice President Cheney told audiences without equivocation that Saddam Hussein was renewing his weapons programs. Cheney knew that his sources were uncertain. Cheney did not, however, reveal these uncertainties. Instead, he told the people, intending that Congress hear and be influenced, that the new weapons program was unequivocally true. Mr. Cheney did not tell the Congress that he had motives of his own for invading Iraq, that his energy task force had secretly been poring over maps of oil resources in Iraq since early 2001, well before 9/11. He did not tell Congress that he intended, once the war began, to provide no-bid, billion-dollar contracts to Haliburton, his former employer. He did not, that is, reveal facts that suggest a strong motive for intentional misrepresentation which is the legal term for lying, and lying to the Congress is, again, a crime under Section 371.

Rumsfeld and Cheney are two conspirators and that is enough under section 371. But what about a third? What about the president? In the winter of 2003, he solemnly proclaimed to the Congress that he “had not made up his mind” whether to invade Iraq, a statement intended to induce Congress to believe that he would continue to review the facts with them. But there is substantial evidence that Mr. Bush had no doubt whatsoever.

During the preceding year, nine months earlier, he had, in May, ordered the Joint Chiefs of Staff to prepare battle plans for the invasion of Iraq; in June, he declared a policy authorizing pre-emptive war, allowing himself to choose war against any country he considered dangerous; in June/July he shifted \$700 million from Afghanistan to operations in Iraq; in July he indicated to the British Prime Minister that it was only a matter of time until the US invaded Iraq; his staff even explained to the British that intelligence providing justification for war would be shaped to make the case. In autumn, he orchestrated a public relations campaign repeatedly warning the Congress against an Iraqi mushroom cloud although in October the CIA had told him that such an event was unlikely. In October, he told the Congress that his facts were sure and that they should rely upon him.

Mr. Bush had been carefully planning war against Iraq throughout 2002. His denials of any such intention misled the Congress into believing that it would be asked to support war only if Saddam Hussein did not cooperate, or upon facts yet to be determined. In fact, as the above recitation makes clear, the president’s decision seems to have been made many months before and nothing Hussein might have done would have changed that decision. The effect of presidential assertions to the contrary was to delude the Congress into believing that its opinion mattered and that its war-making powers were still relevant. Unknown to them, Congressional intentions had been irrelevant for over a year.

In sum, Bush, Cheney and Rumsfeld, during the course of 2002-2003, spoke and acted in ways that the law considers fraudulent. They were asserting as true facts that they either knew were not true or knew that they did not know the truth thereof. These misrepresentations were intended to, and did, interfere with the Congress in the fair performance of its constitutional duty to declare and support war. An indictment, therefore, under 18 USC 371, charging a criminal conspiracy to throw the Congress off track, intentionally impeding its rightful function, would appear to have a substantial legal and factual foundation.

Mr. Cheney now says, with some heat, that to assert such a case is shameful. To some it will appear, however, that not to assert such a case is to abandon the rule of law and that that course is even more shameful.