"Legal Scholars Continued"
Okay, so you too are interested in my lifeguard
analogy (see the bottom of this essay)
or you're at least interested in correcting my
theoretically flawed reasoning:
Those of you who already agree just follow along
reading my response to those who don't.
Among those who at least partially defended GWB,
your thoughtful responses can generally be
grouped as follows:
1) There is some consensus that in my lifeguard
analogy the "Chief Lifeguard" would indeed be
guilty of a crime but that it is moot/irrelevant.
2) Some of you lawyers think there is a
constitutional problem in the judicial branch
prosecuting the executive (even once GWB is out
of office) for actions that, at least ostensibly,
are specifically within the purview of the
presidency.
3) Some of you lawyers think the lesson in the
analogy is not applicable to GWB because the
President has specific legal protections
("affirmative defenses") against such a
prosecution.
4) Some of you think that congress' authorization
to use force "legalizes" any related action by
the president.
5) Some of you think there are troubling
practical considerations for "opening the door"
to prosecutions with 20/20 hindsight
second-guessing.
6) Some of you mentioned a potential lack of
"specific/criminal intent" if GWB truly believed
there was any sort of threat.
7) Some of you mentioned the issue of
jurisdiction.
Okay, here is my response...
(largely based on my reading of Vincent
Bugliosi's book "The Prosecution of George W.
Bush for Murder")
1) The new Congress assumes office before GWB
leaves office. There is a window where they can
impeach on principle and also to castrate any
possibility of pardons. If you agree with the
following arguments this step is crucial.
2) Surely the president is not above the law.
According to the "Soldiers and Sailors Civil
Relief Act of 1940" every soldier is entitled to
a postponement of any civil action until the end
of his active duty. And yet the Supreme Court
unanimously denied President Clinton's request
for a postponement of Paula Jones' lawsuit until
after he left office precisely because no one is
above the law.
Let me be provocative, if a president strangled
your child for purely perversely sadistic
enjoyment surely he could tried for murder. So
being president mustn't enjoin the judicial
branch from doing its solemn duty of
administering justice when crimes occur.
"Aha!" you think, "What if this crime didn't
occur or there was an affirmative defense?"
3) Of course a president can be wrong & make
mistakes. A president can legitimately make a
foolish decision that results in terrible losses.
But any "affirmative defense" is predicated upon
lack of fraud or criminal behavior. Surely a
president who took us to war with China because
he didn't like his fortune cookie at Panda
Express could be prosecuted for "reckless
disregard for human life".
Note that "felony-murder" laws state that any
death that results from the commission of an
underlying felony is first degree murder. The
getaway driver gets the chair for her
accomplice's ricocheted bullet that killed
someone when he was only trying to fire a
"warning shot". In fact, Bugliosi cites an
example where a proprietor shot at a robber and
accidentally killed an innocent customer and the
ROBBER was convicted of first degree murder.
"Felony-murder" was instituted to discourage the
felonies that are inherently dangerous.
If president Obama directs all the bank recovery
billions into his personally owned green-energy
startup venture that doesn't make or do anything
then we should prosecute him for theft. Just
because a president says he's acting in the best
interests of the people doesn't make it so.
All actions can be viewed on their own.
Defrauding the public to go to war is (I would
argue) the greatest crime a president can commit
even if he had altruistic goals (which I don't
concede GWB did).
The president is not a king. There are actions he
can do that are illegal regardless if he claims
they are just.
We can debate what those actions are but the
concept of an imperial presidency that can do no
wrong is simply bogus.
"But congress consented!" you claim.
4) An absolutely fundamental principle in the law
is that "Fraud Vitiates Consent".
Explore this hypothetical example: congress
declares a storm a federal disaster and
authorizes compensation to victims. Then a
government official disburses funds, in
accordance with congress' instructions, to a
victim of that storm who coincidentally happens
to be a family member. That's ok. If congress
didn't declare it a federal disaster because it
was just a light storm with one lightning bolt
that did damage to the uninsured family member's
house then the government official would be
breaking the law to give money to that family
member. Now, if the government official deceived
the congress and tricked them into thinking the
light storm was a giant national disaster, in
order to enrich his family member, then congress'
subsequent "consent" based on that fraud would
NOT make that government official's actions
legal.
Consequently, if it can be proven that GWB
deliberately deceived congress then any resulting
"consent" or purported legitimacy is worthless in
a defense.
"Aha!" you counter, "What proof is there that GWB
deliberately deceived and didn't have earnest
belief of a threat?"
Check out Bugliosi's book. There is an ocean of
evidence.
But my personal favorites, due to their absence
in the zeitgeist, are:
a) Multiple American intelligence agencies
repeatedly called claims of Baghdad's likelihood
of having functional WMD "dubious" and yet all
such dissents & skepticism were entirely stripped
of the "white paper" that was declassified for
the public (and in fact much of the language was
definitively heightened to scare more).
b) On October 7th 2002 Bush told the nation that
Saddam was a "great danger to our nation...on any
given day". Yet that very day Tenet sent a
letter to Senator Bob Graham signed by his number
one deputy director McLaughlin - which stated
Saddam would not use Chemical & Biological
Weapons unless attacked. And yet Bush was looking
to provoke Saddam and ultimately invaded anyway.
If Saddam would surely use purported WMD when
attacked then why attack?
c) Assorted administration officials (Bush,
Cheney, Rice, etc.) repeatedly used words that
communicate "imminent" when describing Iraq as a
threat ("unique urgency","could launch...in as
little as 45 minutes" etc. etc.) but never, in
countless quotes, used the actual word "imminent"
(which connotes a "legal defense"). So the fact
that they didn't use the most likely word is
circumstantially compatible evidence of conscious
guilt.
"But congress and the public were misled. So
maybe Bush was too" you plead.
The Bush administration wasn't misled because
they were the originators of the disinformation
(remember the indisputable facts that no WMD were
found and Iraq had nothing to do with 9/11). They
said the opposite. Where did that claim start? In
the beginning, no one other than the Bush
administration was saying Iraq had WMD and Iraq
was involved in 9/11. The Bush administration
were precisely the ones doing the misleading!
5) Hindsight - I agree that you can't expect
leaders to govern when every mistake (with the
benefit of hindsight) can be prosecuted. But
there's a crucial difference here.
Why did the Bush administration spread its
coordinated disinformation campaign? Obviously
because they wanted the support of the people.
Absent that deception citizens might have
protested sufficiently enough to prevent or stop
the war. If the Bush administration didn't fear
the will of the people then why would they
deceive? If they truly believed they had the
right to unchecked war by presidential whim/fiat
then they wouldn't have tried so hard to trick
us. They could have let the dissents & contrary
evidence come to light and they could have not
repeatedly conflated Saddam and 9/11 in countless
television appearances.
This fundamental deception is where the crime
occurs.
"What's wrong with deceiving the American
people?" you wonder.
I contend that it depends on the circumstances.
(not to mention the laws that specifically make
it illegal for the government to deceive
Americans on American soil whereas bogus
propaganda elsewhere is in fact legal).
What would be so bad about chilling our leaders
into a less bellicose foreign policy?
"Well we have all those Muslim enemies who want
to kill us!" you scream.
What if I told you that that threat is bogus?
(See my blog and scroll down to my argument that
"There is no existential threat to America"
http://corpania.blogspot.com/2008_01_01_archive.html
)
In not-so-short: There are 1,300,000,000+ Muslims
on earth.
Psychiatric studies show that as much as 1% the
human population is schizophrenic.
http://www.schizophrenia.com/szfacts.htm
And more than 1/10,000 commit suicide.
So it stands to reason there should be at the
very least 1,300 schizo Muslims with a deathwish
to be worried about.
What if only 50 of them simultaneously shot up
churches or malls around America? That would
surely incite full-on WorldWar3.
Clearly, if the threat was so great our enemies
could coordinate some of them entering the US to
wreak havoc (on our infinite vulnerabilities:
like our non-hardened chemical plants, thousands
of miles of Alaskan oil pipeline, water supplies,
etc.).
But they haven't.
You know why?
Because the number of people who may
superficially hate us may be in the millions or
billions (hopefully not after Obama's victory)
but they ain't gonna do a thing about it because
they're busy with their own lives (feeding their
kids etc.).
The number of people in the world who hate us so
much that they're willing to leave their family
and journey to our shores to kill us IS REALLY
MINISCULE!
But every time we bomb someplace and there is any
"collateral damage" (and there always is) then
that victim's relatives become exponentially more
likely to want to make that havoc-wreaking
journey to our shores. War begets war. Revenge is
a vicious cycle.
Chilling our government into not waring is
exactly what we need now. Until the geo-politics
substantially changes we should be actively
discouraging war (even more so than usual).
Okay, back to the last of the 7 concerns with
prosecuting GWB...
6) Intent: The pro-active, deliberate deception
proves intent. Remember that "reckless disregard
for life" (drunk driving etc.) is a felony.
Soberly deciding to get drunk so that you can
commit "vehicular manslaughter" is premeditated
"first degree" murder.
7) Jurisdiction - Any District Attorney, Federal
Prosecutor or Attorney General who had a resident
of his/her jurisdiction who subsequently was
ordered to war and died there can prosecute
George W. Bush for murder.
Ok, how many of you actually read all of that?
Good for you. ;-)
Please tell me where I'm wrong.
Thanks and good karma to you.
Regards,
Dan
________________________________
> > Tell me if this is specious reasoning...
> > Here's my newest legal question:
> >
> > Suppose a Chief Lifeguard on a beach says
> > "there's a thousand downing kids in the
stormy
> > ocean right now" and orders a hundred of his
> > subordinate lifeguards in to the turbulent
> > riptide to save them.
> >
> > A few of those lifeguards drown and it turns
> > out that the Chief Lifeguard knew there
wasn't
> > ever any legitimate evidence of any drowning
kids
> > but he still definitively claimed that there
were.
> >
> > Is that Chief Lifeguard legally responsible
>> for the drowned lifeguards' deaths?
> > Is that Chief Lifeguard guilty of a crime?
> >
> > If so, then isn't George W. Bush guilty of an
> > analogous situation in Iraq?
> >
> > Check out legendary prosecutor Vincent
> > Bugliosi's book and upcoming documentary -
> > "Mad as Hell: The Prosecution of George W.
Bush for Murder"
