A defense lawyer makes the case for Bush

Suppose, however, I took the other side; how would I go about it?

Probably the best defense for Bush is based on the legal concept of "diminished capacity," and since the doctrine received its most elaborated development in the gifted hands of Roger Traynor, former Chief Justice of the California Supreme Court (and a law professor of mine), it comes quickly to mind. Diminished capacity proceeds on the assumption that a crime which would otherwise look like an intentional homicide, for example, can be downgraded to a lesser offense such as manslaughter if the perp, because of some mental defect or condition falling short of actual insanity by legal definition, lacks the "capacity" to form the necessary intent (the mens rea) for the higher offense. There is something quaint about the idea now; the Twinkie Defense that spared Dan White a lengthier stretch (and that ultimately led to his premature release and subsequent suicide not long after his release from Soledad), was based on this hoary legal construct.

I don't think anyone can prove Bush is actually "insane," although this epithet is thrown around casually by his legions of detractors. I think his years of self-indulgent, prodigious abuse left him, like Richard III, "half-made," so that mugging like a 13 year old for the national press, flatulence jokes in the Oval Office and molesting foreign heads of state are all par for the course for W. But these same qualities make me doubt that he's actually, essentially evil. He doesn't actually have the heft for evil.

As one example, he's such an ineffective liar. His lies are transparent. In his last press conference, he said that he never said that Iraq "ordered the attacks of 9-11." Well, of course he never did. It's an infantile defense, to retreat behind literalisms. The 9-11 conspiracy wasn't something you sent out for like a pepperoni pizza. Who in their right mind ever thought Saddam had picked up a phone, called Kandahar or Hamburg and said, "I'd like the World Trade Center knocked down, please. And can I get a salad with that?"? On the other hand, there is absolutely no doubt that Bush created the impression that Iraq was involved in the 9-11 plot.

Sept. 25, 2002: "You can't distinguish between Al Qaeda and Saddam Hussein when you talk about the war on terror," Bush said. Three days later, Donald Rumsfeld said that the link between Saddam and Al Qaeda was "accurate and not debatable."

Sure you can distinguish between Saddam and al-Qaeda. You'd be a fool not to. But Bush wanted to preside over a war against Iraq for his own reasons, which were at least partly mixed up with his ideas of liberating the people of Iraq. His views of what would ensue after Saddam's overthrow were naive in the extreme, the result of his ignorance of Iraqi, Arab and Muslim culture. Bush was and is a lazy American thinker who thinks everybody everywhere is just the same. He ignored the crucial effects of history, culture and religion because understanding these things would have required an intellectual discipline he doesn't have. His attitude about Constitutional restraints (due process, the 4th Amendment) were summed up in his famous dictum, "It's just a goddam piece of paper." Because he's fundamentally a silly man of diminished capacity, with no depth whatsoever, Bush doesn't see that the legal and political system built on that piece of paper has to be maintained carefully, observed with humility, or it will be lost. You can't routinely violate the FISA law, for example, because your "intentions are good." You can't preside over systematic violations of the War Crimes Act when your subordinates torture and kill human beings because "America is in a war with evil doers." That way lies anarchy and dissolution, regardless of your intentions.

He's careless and destructive because he simply doesn't understand what's at stake, and he doesn't know how to find out. In fact, he can't. There are many, many Americans like him, as we degenerate into a country of anti-intellectual, anti-rational, religiously-zealous halfwits. As I've thought many times, the scariest thing about Bush is that he looks, really, so much like Modern America.