Should We Prosecute George W Bush?

Despite hundreds of accounts of the illegality of the war on Iraq initiated by the previous resident at the White House there have not been many books or articles documenting a case against Mr. Bush for complicity in this crime.

Two notable exceptions are former Los Angeles prosecutor Vincent Bugliosi’s book, “The Prosecution of George W. Bush for Murder,” which encountered a virtual boycott by the major news media when published in 2008, and “United States v. George W. Bush et al.,” by Elizabeth de la Vega, a former Assistant U.S Attorney who meticulously presents the case for criminal fraud under a little-known federal statute that does not require monetary loss by the victim as a condition for conviction.  Both books rest their case on proof of deliberate deception by the President and members of his war cabinet — not an easy hurdle to overcome in a criminal trial, which requires proof beyond a reasonable doubt.

Intentional killings based on a mistake are not accidents… if the mistake was predicated on an unreasonable belief about the justification for the killing.

Contrary to common belief, however, an American president can be found guilty of criminal conduct without proof of the corrupt state of mind of the deliberate liar or the malignant motives of Nazis on trial at Nuremberg.  The criminal mind also encompasses the all-too-common consciousness of human beings acting carelessly in deciding to kill other human beings, however justified their conduct may seem in their own eyes.

On the tenth anniversary of the invasion, the only truly serious question about the war is whether President George W. Bush and those who participated in the decision to invade Iraq did anything illegal or unconstitutional or criminal.

To raise such a question about a war initiated by own’s country is always “a vocation of agony,” as Martin Luther King, Jr. said of the war in Vietnam when he finally chose in 1967 to break his silence about the conflict.  Whatever the reasons for avoiding the Iraq question, whether it is President Obama’s understandable fear of further polarizing a sorely divided nation, or out of respect for the 4,422 Americans who gave their lives fighting for what they believed was a just cause, or because the legal issues are too big or too difficult, we must finally say about Iraq what Dr. King said about Vietnam.  “We must speak with all the humility that is appropriate to our limited vision, but we must speak.”

The whole litany of excuses for the catastrophe in Iraq has been recited in the language of mistake and misadventure, as if the war were a tragic accident, like a colossal train wreck caused by an act of God.

Intentional killings based on a mistake are not accidents, however, if the mistake was predicated on an unreasonable belief about the justification for the killing.  This is the case whether the person on trial is a police officer who killed an innocent citizen in the mistaken belief that the suspect had a gun and presented a lethal threat, or a president who ordered the invasion of Iraq in the mistaken belief that Saddam Hussein possessed WMDs that posed a threat to America’s national security.

If a police officer’s belief that his victim posed a deadly threat was not only wrong, but unreasonable, in the sense that a prudent police officer exercising due diligence in similar circumstances would not have fired his weapon, the killing constitutes criminal homicide.  There is considerable disagreement among the courts and legal commentators about whether the homicide is murder or is to be treated more leniently, either as voluntary manslaughter or the lesser offense of negligent homicide, but there is universal agreement that carelessness in the use of deadly force is criminal.

What did the President know and when did he know it?  Wrong question.  The proper question is: What should a reasonably prudent president have known about the legal justification for invading Iraq and why didn’t the President know it?

We are so used to war and the threat of war as a legitimate adjunct of foreign policy that we easily lose sight of the reality that war consists of acts which, if performed by a private citizen or organization, would constitute serious felonies: mass murder, assaults with deadly weapons, maiming, arson, kidnapping, and the malicious destruction of property.  The law immunizes political leaders from criminal liability so long as the war is legally justified.  As a matter of international law, this generally means in compliance with the U.N. Charter.  In terms of domestic law, it means in compliance with the U.S. Constitution, which requires either a declaration of war or a congressional authorization for the use of military force.

SOURCE: Paul Savoy,   Paul Savoy is a former prosecuting attorney in the District Attorney’s office in New York County and has also served as Dean of the John F Kennedy School of Law


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s