Is Fraud a High Crime or Misdemeanor?
In claiming that 16 controversial words in his State of the Union address last January were technically correct, the president is implying that he didn't actually deceive - or intend to deceive - the American people.
Nothing could be further from the truth. While the president wants people to focus only on the technical wording of his carefully crafted sentence, he forgets what every lawyer in the country knows - that actionable fraud consists not only of a false representation of a material fact but also of ]the intentional failure to disclose a material fact. And what could be more material than the CIA's conclusion that the entire Saddam-Niger-uranium connection was bogus?
Here's the sentence in question: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa."
Why would the president have included that sentence in his State of the Union speech? What would have been his intent?
The answer is inescapable: The president's intent was to terrify the American people into believing that Saddam Hussein had the means to explode a nuclear bomb over some American city - either now or in the immediate future. And who can deny that the president was successful in generating the mind-numbing fear that became a principal reason that Americans supported the invasion of Iraq?
Keep in mind that even while President Bush was claiming that he hadn't yet made up his mind about whether to invade Iraq, he was already in the process of sending an invasion-size force to the region. Remember also that commentators were suggesting that weather conditions dictated that the president would have to order an invasion before the onset of summer.
Thus, Bush knew that at some point his only choice was going to be (1) to invade, (2) to leave 150,000 U.S. troops indefinitely sitting in the Kuwaiti desert and on the high seas, or (3) to return the troops home. He also knew that the last two options were not politically viable.
The president needed public support for option 1, and he needed it fast. He had to convince the American people that waiting for toady UN inspectors simply wouldn't cut it.
What better way to garner support for an immediate invasion than to terrify Americans with the prospect of a nuclear bomb destroying an entire American city in the near future?
In determining the president's intent in January, those 16 words uttered in his State of the Union address should be considered in the context of the words that he used a few months earlier - October 2002 - in a speech he delivered in Cincinnati:
"The Iraqi regime ... is seeking nuclear weapons.... We agree that the Iraqi dictator must not be permitted to threaten America and the world with horrible poisons, and diseases, and gases, and atomic weapons.... The evidence indicates that Iraq is reconstituting its nuclear weapons program.... Satellite photographs reveal that Iraq is rebuilding facilities at sites that have been part of its nuclear program in the past.... Iraq has attempted to purchase high-strength aluminum tubes and other equipment needed for gas centrifuges, which are used to enrich uranium for nuclear weapons. If the Iraqi regime is able to produce, buy, or steal an amount of highly enriched uranium a little larger than a single softball, it could have a nuclear weapon in less than a year.... Knowing these realities, America must not ignore the threat gathering against us. Facing clear evidence of peril, we cannot wait for the final proof - the smoking gun - that could come in the form of a mushroom cloud."
In light of postinvasion discoveries, one could be forgiven for asking whether the president's representations in that Cincinnati speech were false and, if so, whether he made them with knowledge of their falsity.
What we do now know is that by the time that Bush spoke in Cincinnati, he had deleted a section of the speech suggesting that Saddam Hussein had attempted to purchase uranium from Niger. The reason the president had made that deletion was that the CIA had advised him that the information was bogus.
Thus, when the president decided to announce in January that "the British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa," the American people, who were weighing whether to support a war against Iraq, had a right to know that the CIA, our nation's own intelligence service, had reached an opposite conclusion.
The president knowingly and intentionally failed to disclose that material fact when he uttered those 16 words in his State of the Union address, and that critical omission was obviously designed to create a false impression within the minds of the American people.
As any lawyer will tell you, that's fraud.
Mr. Hornberger is founder and president of The Future of Freedom Foundation and holds a law degree from the University of Texas.
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This story was published on July 16, 2003.