Nov 28, 2006

Case #04: United States v. George W. Bush et al.

Elizabeth de la Vega, appearing on behalf of the United States:

Bush has Enronized the United States of America:
  • The president has committed fraud.
  • It is a crime in the legal, not merely the colloquial, sense.
  • It is far worse than Enron.
  • It is not a victimless crime.
  • We cannot shrug our shoulders and walk away.
Opening Statement:
The techniques of deception used by George W. Bush and his aides are identical to those used by Lay and Skilling. In his July 2002 speech announcing the signing of the Corporate Corruption Bill, the president said, "The only fair risks are [those] based on honest information." The president and his top advisers were acutely aware of the solemn risks posed by an invasion of Iraq, but instead of debating those risks honestly, they developed slogans, including the familiar "risks of inaction are greater than the risks of action" that simultaneously usurped and deflected counterarguments while providing no information whatsoever, honest or otherwise.

Such propaganda, cynical and craven as it is, might not qualify as criminal fraud, but the propaganda alone was insufficient to convince Congress and the American people to invest in the plan for war. To remedy this deficiency and close the deal, the president and his top aides made hundreds of representations, both general and specific, that were carefully crafted to manipulate public opinion. As we now know, many of those assertions were false and misleading. More important, we also now know that President Bush and his advisers had notice and direct knowledge that their representations were seriously undermined and in some key instances, disproved by information that was available to them. Consistently, the president and his aides knowingly conveyed false impressions, concealed important information, made deliberate misrepresentations, and professed certainty about facts that were speculative at best. Such is the definition of criminal fraud – whether committed by the president of the United States or the CEO of a major corporation.

The only difference between the fraud committed by the Enron officers and the fraud committed by the president is that the latter was far more comprehensive and far more calculated. Even as President Bush stood center stage endorsing honesty that July four years ago, he and his company were setting the stage for another show. If the "only fair risks" speech was a perky Frank Capra clip, the White House's next production would be 21st-century H.G. Wells.

As of July 30, 2002, Bush had directed the creation of the White House Iraq Group, a public-relations operation whose sole purpose was to market the war. This team, collectively called WHIG, was co-chaired by the president's closest aides and long-term political consultants, Senior Adviser Karl Rove – whom Bush has described as "the architect" of his 2004 reelection campaign – and former Counselor to the President Karen Hughes.

By July 30, 2002, the White House Iraq Group had already begun fabricating an ominous scenario that blurred together the Sept. 11 tragedy, mushroom clouds rising over American cities, and terrorists releasing strains of smallpox, interspersed with the shadowy face of a mad Iraqi dictator spring-loaded to attack the United States. They were collecting props – anthrax vials and undated photos showing centrifuge components and unidentifiable buildings where something ominous might be happening, but we can't afford to wait to find out. They were writing the script: power phrases like "Grave and gathering danger" and "We can't afford to let the smoking gun be a mushroom cloud," designed less to inform than to inflame. And, finally, Rove, Hughes, and company were scheduling appearances for the President's War Council members that would begin just a month later, in early September 2002.

It was to be a bravura performance by the president, the vice president, the secretary of defense, the secretary of state, the national security adviser, and many supporting cast members. The production was so well done, in fact, that, like the radio audience terrified into hysteria by the infamous "War of the Worlds" broadcast of 1938, most of us were fooled. Admittedly, we resisted buying the duct tape and plastic sheeting; we may not have wrapped our heads in wet towels to ward off Martian gas like the 1938 radio audience. What happened, however, was much worse: because of Bush's fiction, we agreed to bomb people 8,000 miles away whose only "crime" was that they were oppressed by a violent and cruel dictator.

Undoubtedly, Americans were panicked by H. G. Wells' radio play in part because they were exhausted and nervous in those tough Depression years. But Orson Welles' breathless report of a Martian invasion was never intended to cause panic, nor was it ultimately harmful.

The president's elaborate production was, and still remains, an entirely different story. It was a deliberate effort to create a permanent state of fear in America. And to say it was harmful is like saying that it hurts to get hit by a Mack truck.

Federal sentencing guidelines recognize that one who defrauds a vulnerable victim, such as a salesman who falsely represents the curative benefits of an elixir to a cancer patient, has committed an even more serious crime than one who defrauds a person who is not so "particularly susceptible." The president knew that Americans were "particularly susceptible" in 2002. We were exhausted, and justifiably terrified, not only because of Sept. 11 but also because of the anthrax murders and the random Washington, D.C., sniper killings that coincided with the Bush-Cheney administration's push for war.

President Bush and his White House Iraq Group did not merely exploit this fear; they magnified it. Worse yet, the president was the very person upon whom the public relied to protect it from danger and, one would hope, from omnipresent fear itself. Having used the authority of the Oval Office to make people more afraid, having created an even darker backdrop of fear, our highest officials exploited that reliance and the trust they enjoyed by virtue of their positions to sell something they knew the American public would not otherwise have bought. It was as if the cancer victim's trusted personal physician had convinced him that his disease was more advanced than it really was, and then used the same fraudulently heightened fear to manipulate him into buying a bogus cure-all.

In the language of criminal law, the president and his senior advisers have abused a position of trust to defraud the most vulnerable of victims.
Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and chief of the San Jose Branch of the U.S. Attorney's Office for the Northern District of California. Her pieces have appeared in The Nation, the Los Angeles Times, and Salon. She writes regularly for TomDispatch. This is the introduction to her new book,
United States v. George W. Bush et al. She may be contacted at

Nov 21, 2006

Case # 03: The People -vs- O.J. Simpson

In the court of public opinion, Vigilante Justice wins out. Where our flawed judicial system failed, the assembled citizenry nonviolently bludgeoned the centers of corporate power and shamed them into joining a nearly universal shunning of the killer.

News Corp has cancelled the planned O.J. Simpson "If I Did It" television interview on Fox and also the publication of his book of the same title.

In a statement released today, Rupert Murdoch said,
I and senior management agree with the American public that this was an ill-considered project. We are sorry for any pain that this has caused the families of Nicole Brown Simpson and Ron Goldman.
It also proved painful for the American people. Critics called for boycotts of advertisers who might sponsor the television broadcast on the Fox network; numerous broadcast stations announced they would refuse to carry the program; television hosts like Bill O’Reilly on the Fox News Channel — which, like Fox, is owned by the News Corporation — were vocal in their opposition of the telecast; and various bookstores said they might not stock his book. The book was to be published by ReganBooks, also owned by News Corporation.

Acquitted by a defective jury, O.J. Simpson was convicted in the court of public opinion and, still incarcerated by the same court, is denied citizen's rights to press and speech. Let's hope the verdict stands.

Rehabilitating Vigilantes & Vigilantism

Identity Crisis

I have to confess something, which will not necessarily come as a surprise to many who know me, or even to some casual readers of these pages.

I have a morally-challenged ambivalence toward vigilantism. Basically stated, I feel there are good vigilantes and bad vigilantes. The problem is, like in many other areas, the good and bad resides in the eye of the beholder. And both probably are found on slippery slopes. 'Good' and 'Bad' vigilantes are as elusive as are concepts of true 'justice'; even more so because vigilantism is often practiced outside the courts where there is a presence of codified law and a respect for balance presentation of fact.

As a form of enforcement or punishment, vigilantism holds an enduring and problematic place in the history, especially U.S. On the one hand the vigilante purports to fight for justice and what is deemed "right"; on the other he is necessarily mired in a criminality that actually threatens the system of "law and order" which he claims to serve. I know it's a fine line I have to draw in this thread. Nevertheless, I feel compelled to explore whether a distinction can be made between good and bad Vigilantism.

For some, vigilantism is the solution. Where the law enforcement agencies have failed in their prosecution of criminal activities, it is thought that vigilante groups would tackle this problem by enforcing "community justice". Vigilantism is therefore seen as a concerted community response when formal legal institutions have failed to address the chaos of epidemic which engulfs them. Having therefore lost faith in the power of such systems and desiring to repossess the security he feels he has lost, the citizen-prey-turned-citizen-predator seizes law 'into his own hands' in his pursuit for justice. The vigilante is embedded in the American popular imagination as a hero who legitimizes violent criminal reaction to criminality. In our history, vigilantism was the ultimate resort when the legal systems that protect against victimization and the systems that implement justice for the victimized were seen to have been primitive, poorly formed, overwhelmed and inadequate in their chaotic environment. 'Frontier justice was meted out for cattle rustlers. Good. Mistakes were made. Bad. But bad mistakes are sometimes made by all legal and judicial systems, which are by definition, imperfect.

This analysis, however, does not reckon with the premium that is put on the values of procedural fairness, impartiality and procedural safeguards in a liberal society. A liberal society is concerned as much with means as with ends. There are certain means that are impermissible in civil societies regardless of whether they yield, in the short run, desirable outcomes. Arbitrary violence of vigilante groups is one such means. Even if it is true that vigilantism helps curtail violence, if their chosen means of operation is violent, their activities become inconsistent with liberal values and have to be deplored.

It therefore goes against the grain of modern civilized practice to tacitly recognize the powers of an unregulated militia to impose and carry out capital punishment outside the official processes of the legal system, and often without conclusive evidence of guilt. A society that values the dignity of the human person and the sanctity of human life would take extra precautions to ensure that the state does not sanction the taking of human life without adequate procedural safeguards and without ensuring that the process is conducted consistently with the law.

But there is a place for vigilantism. Vigilante groups are operative in most countries. The difference is that in majority of countries these groups act within the law; they participate by positioning themselves to observe and report of crime; they apprehend criminals and transfer their custody to duly constituted law enforcement agencies which have the responsibility of prosecuting and punishing the offenders. There definitely is a linkage between a vigilante state of mind and the 'mind of state' that makes community members responsible for crime management. Just look on it as 'outsourcing' or 'privatising' law enforcement. That's legit, ain't it?

So, I postulate here that there is still a role for this kind of vigilante activity, but only when the law enforcement agencies are not adequately deployed.

No doubt, the government needs to do more to restore the faith of the populace in the ability of the police to protect their lives and property. Nonetheless, the government has a duty to ensure that the activities of vigilante groups are confined to the narrow scope of assisting in the apprehension of suspected criminals. This would include so-called bounty hunters. These groups should not be allowed to usurp the prosecutorial and judicial functions of the state. The dissociation of means from ends, which is advocated by some (bad) vigilantes, would lead to the subversion of those cherished values (of fairness, civility, liberty, and freedom) which should be the aims of any decent liberal society.

Nov 19, 2006

Case # 02: Class Action Suit on Behalf of College Newspapers Editors

College Newspapers are Censored and Suppressed by Unseen Hands.

This isn't a case as yet as far as I know, but it ought to be. For college newspapers, the disappearance of controversial reports from campus racks is a perennial problem.
By Richard Fausset, Los Angeles Times Staff Writer
November 19, 2006

Megan Boehnke, the editor of the University of Kentucky's student newspaper, came up with a big, controversial scoop for last Monday's edition. Under a banner headline, she announced that two students and a recent graduate had been legally drunk when they died in high-profile accidents this year.

But someone — who apparently didn't want the story out — decided to scoop up Boehnke's scoop.

Early Monday, more than 4,700 copies of the Kentucky Kernel went missing from bins around campus. The free paper's total press run is 17,000, but enough copies were stolen to dull the buzz for a while.

As censorship goes, snapping up truckloads of local newspapers ranks among the bluntest of tactics — right up there with serving hemlock to Socrates. And it's obviously not the kind of problem big-city dailies are worried about.

But newspaper theft is a recurring and pernicious issue for college newspapers, and one that has endured, strangely, through the Internet era, when most controversial articles are usually just a Google search away.

The Kentucky theft was the 11th at an American campus since the school year started, according to the Student Press Law Center.

The Virginia-based nonprofit has logged an average of 24 incidents a year since it began keeping serious tabs in 1992.

"It's kind of a consistent problem, and a very difficult one to deal with and solve," said Executive Director Mark Goodman. "It's somewhat insidious, because it's out of the hands of the newspaper staff to do something to prevent it."

Punishing the thieves can be tricky: Because college papers are usually free of charge, prosecutors sometimes refuse to treat their disappearance as a theft, though newspapers must sometimes reimburse advertisers.

Some states are trying to remedy the problem. California will soon join Maryland and Colorado in explicitly criminalizing the theft of free newspapers. Starting in January, the taking of more than 25 free papers will result in a fine of up to $250 for first-time offenders.

The law was pushed strongly by the California Newspaper Publishers Assn. after a number of campus newspaper thefts this year.

At Glendale Community College, 2,000 copies of the student paper El Vaquero disappeared in June. The issue contained a report on student suicide that named a recent victim. College President John A. Davitt, who has since retired, was upset that the article was going to appear, but he denied having had the copies removed, El Vaquero reported.

At Pasadena City College, 5,000 copies of its student paper, the Courier, were stolen in May. Torn-up copies showed up at the newspaper office, with a note that claimed the Latino group MEChA was responsible. A student later admitted to taking and shredding the copies.

And at Cal State Chico, environmental activists stole 2,500 copies of the Orion, the campus weekly, because they were upset by an editorial. According to the Student Press Law Center, an anonymous caller threatened to "recycle all copies."

None of the California cases resulted in prosecutions, said Jim Ewert, legal counsel for the California Newspaper Publishers Assn.

In Kentucky, campus police are pursuing the case. The cover of the Kernel, like those of many student papers, states that the first issue is free, but additional issues cost 25 cents.

Because the total value of the stolen copies is more than $300, the police say the act probably constitutes felony theft.

Acting Police Chief Joe Monroe said the department had identified a female suspect from surveillance cameras.

An arrest had not been made.

Editor Boehnke said she knew her article was causing a stir in the days before its publication: When she called one victim's mother for a comment, the mother asked her not to print the story, saying it would be hurtful to the family. Then Boehnke received more than a dozen calls and e-mails from the victim's family and friends urging her not to publish. Some were measured, others "hysterical," she said.

After consulting her faculty advisor and other journalism professors, Boehnke decided to publish.

Headlined "Students who died were legally drunk," it was the lead story, reporting that at least one Kentucky student had died in an alcohol-related incident in five of the last six years.

On Monday morning, she got a call from the newsroom. The paper — and her story — had disappeared from the heavily trafficked hallways of the central campus.

The story, she notes, is still available on the paper's website (, and the paper itself still available elsewhere on campus.

And a number of national websites that focus on education and the press have picked up news of the controversy.

"That's the thing," Monroe said. "All these people who wanted to suppress the story have only magnified the story."

It is, of course, the availability of papers on campuses that makes their theft so tempting. University of Kentucky police say that most of the thefts occurred within a mile of the Kernel offices.

But that concentration has also helped college newspapers avoid broader industry doldrums. Advertisers continue to be attracted to a medium tightly focused on an audience that is, by definition, young, educated and upwardly mobile.

Even in the Internet era, no product has come along to challenge college papers as the preeminent place for campus-specific news, according to Samantha Skey, a senior vice president of Alloy Media & Marketing, which places advertisements in college newspapers.

With so many college papers posting their content online these days, observers can only guess why newspaper theft remains so prevalent.

Goodman of the Student Press Law Center blames college educators for failing to instill in students a proper respect for divergent viewpoints.

But Skey thinks it might have something to do with the permanence of the printed word in the interactive age.

Maybe, she said, 21st century students see distasteful news in the paper "and they're frustrated that they can't edit it."

For more information on this problem, consult the SPLC Newspaper Theft Forum.

Nov 17, 2006

CASE # 01: The People -vs- Mostafa Tabatabainejad

UCLA student stunned by Taser plans suit!
If I were a student at UCLA, you'd better believe I'd be in this demonstration. But in this instance, I'd rather be a juror! The photo is swiped from Raincoaster.
The Evidence:
The UCLA student stunned with a Taser by a campus police officer has hired a high-profile civil rights lawyer who plans to file a brutality lawsuit.

The videotaped incident, which occurred after the student refused requests to show his ID card to campus officers, triggered widespread debate on and off campus Thursday about whether use of the Taser was warranted. It was the third in a recent series of local incidents captured on video that raise questions about arrest tactics.

Attorney Stephen Yagman said he plans to file a federal civil rights lawsuit accusing the UCLA police of "brutal excessive force," as well as false arrest. The lawyer also provided the first public account of the Tuesday night incident at UCLA's Powell Library from the student, Mostafa Tabatabainejad, a 23-year-old senior.

He said that Tabatabainejad, when asked for his ID after 11 p.m. Tuesday, declined because he thought he was being singled out because of his Middle Eastern appearance. Yagman said Tabatabainejad is of Iranian descent but is a U.S.-born resident of Los Angeles.

The lawyer said Tabatabainejad eventually decided to leave the library but when an officer refused the student's request to take his hand off him, the student fell limp to the floor, again to avoid participating in what he considered a case of racial profiling. After police started firing the Taser, Tabatabainejad tried to "get the beating, the use of brutal force, to stop by shouting and causing people to watch. Generally, police don't want to do their dirties in front of a lot of witnesses."

He said Tabatabainejad was hit by the Taser five times and suffered "moderate to severe contusions" on his right side.

UCLA officials declined to respond directly to Yagman's statements, saying they still were conducting their internal investigation of the incident.

The university said earlier, however, that Tabatabainejad was asked for his ID as part of a routine nightly procedure to make sure that everyone using the library after 11 p.m. is a student or otherwise authorized to be there. Campus officials have said the long-standing policy was adopted to ensure students' safety.

UCLA also said that Tabatabainejad refused repeated requests by a community service officer and regular campus police to provide identification or to leave. UCLA said the police decided to use the Taser to incapacitate Tabatabainejad only after the student urged other library patrons to join his resistance.

Some witnesses disputed that account, saying that when campus police arrived, Tabatabainejad had begun to walk toward the door.

In a prepared statement released late Thursday, UCLA's interim chancellor, Norman Abrams, urged the public to "withhold judgment" while the campus police department investigates. "I, too, have watched the videos, and I do not believe that one can make a fair judgment regarding the matter from the videos alone. I am encouraged that a number of witnesses have come forward and are participating in the investigation."

Meanwhile, student activists were organizing a midday rally today to protest the incident, and the Southern California office of the Council on American-Islamic Relations called for an independent investigation.

The incident follows the recent announcement that four of the campus police department's nearly 60 full-time sworn officers had won so-called Taser Awards granted by the manufacturer of the device to "law enforcement officers who save a life in the line of duty through extraordinary use of the Taser." The award stemmed from an incident in which officers subdued a patient who allegedly threatened staff at the campus' Neuropsychiatric Hospital with metal scissors.

Jeff Young, assistant police chief, declined to indicate whether any of the honored officers were among the several involved in Tuesday's incident.

I've heard enough! Let the jury convene!