The Prosecution of George W. Bush for Murder

The Supreme Court ruling led to the Monica Lewinsky matter (President Clinton’s denial, under oath, that he ever had sexual relations with Monica Lewinsky, took place at a deposition in Jones’s lawsuit against the president), which grievously wounded the Clinton presidency to Al Gore’s substantial detriment, which he compounded by distancing himself from Clinton during his campaign, Gore hardly using Clinton, an excellent vote getter, in the vote-getting effort. Most observers feel that had it not been for the Lewinsky scandal, Gore would have won the extremely close election. And it follows that we would not have had the runaway insanity of the Iraq war.

Unless otherwise indicated, emphasis by italics in quotations in this book has been added by the author.

And oh yes. Although not quite qualifying for the “Why George Bush Went to War” list of quotes, how can one fail to mention this quote of Cheney, the Old Testament prophet, on NBC’s Meet the Press on March 16, 2003, just days before the war: “My belief is we will, in fact, be greeted as liberators . . . I think it will go relatively quickly, [in] weeks rather than months.” The Iraq war, of course, has already gone on longer than our participation in the Second World War!

Yet the outrageously monstrous Ken Starr (about whom longtime Manhattan district attorney Robert Morgenthau said, “He violated every [prosecutorial] rule in the book”) conducted, with federal authorization and funding no less, a seven-year, $70 million investigation of Bill Clinton’s involvement in a small and losing real estate venture (Whitewater) in Arkansas fifteen years before his presidency, and finding nothing, decided to investigate Clinton’s private and consensual sexual life. In the process, Starr almost destroyed the Clinton presidency, substantially incapacitated the executive branch of government, and made America a laughingstock around the world.

It is not a casket or coffin, which the survivors of course later put the remains in. The military refers to the aluminum receptacle as a “transfer case,” and the case is draped with an American flag.

If more need be said about these absolutely shameless and hypocritical human beings, when Congress, in 2007, passed a bill providing for a 3.5 percent pay raise for U.S. soldiers, the Bush administration, which only was willing to give a 3 percent raise, said it “strongly” opposed the additional .5 percent, calling it “unnecessary” (right, like the $1.3 trillion tax break for the super wealthy), and Bush actually vetoed the bill, though he finally signed it in January of 2008 after Congress made certain changes in the language of the bill. Nothing more has to be said to make the point about George Bush and his people, but in 2007, the base pay per month (after four months) of a private in the U.S. Army fighting in Iraq was $1,301.40. Canada, not nearly as wealthy as we are, was paying its privates fighting in Iraq as part of the coalition $2,366.73 per month. For sergeants it was $1,854 (U.S.) and $4,570.53 (Canada). Isn’t that remarkable? And terrible?

Remarkably, during his campaign for reelection in 2004 Bush very frequently spoke of the “hard work” he and his administration were engaging in. This was the first time I had ever heard an American president speak of the “hard work” involved in his job. I have heard them speak of the immense “burden” of the office of the presidency in being responsible for the destiny and welfare of millions of people. But you see, for someone like Bush who was born on home plate and thought he had hit a home run, anything he does, any effort at all, he considers “hard work.”

As has been reported often, Bush said he was “called” (obviously by the Lord) to seek the presidency, and said, “I believe that God wants me to be president.” And when he was asked whether he was seeking his father’s advice on whether to go to war in Iraq, he responded: “You know, he is the wrong father to appeal to in terms of strength. There is a higher father I appeal to.”

Isn’t it so very reassuring that we have a president who told a Houston Post reporter on the day in 1993 that he announced his intention to run for governor of Texas that one “had to accept Christ to go to heaven”? (In other words, Jews, Muslims, and nonbelievers, among others, need not apply.) Who said on Fox News in 2004 that “I am reading Oswald Chambers’ My Utmost to the Highest . . . on a daily basis to be in the Word.” And what is that Word? Delightful gems such as this (that help explain part of the Bush we know): To do what is right, “do not [Chambers, an obscure British Protestant itinerant preacher of the early twentieth century, is telling his pupil Bush] confer with flesh and blood, that is, your own sympathies, your own insight—anything that is not based on your personal relationship with God.” And, “Never ask the advice of another about anything God makes you decide before Him. If you ask advice, you will nearly always side with Satan . . . [You] know when a proposition comes from God because of its quiet persistence. When [you] have to weigh pros and cons, and doubt and debate come in, [you] are bringing in an element that is not of God.” Chambers tells Bush and his other readers that anytime they are confronted with a pressing problem, they should say “‘Speak Lord’ and make time to listen.”

In other words, don’t use your mind (the one that God supposedly gave us to think with) or those of others around you to guide you in your conduct. Do what God personally tells you to do. My God.

They would say this not only because becoming president of the United States is the greatest honor that can be bestowed on a person, but because, being mature, they would realize that giving up a balanced life would be necessary. For instance, when Barack Obama was asked, before he ran for president, what thoughts ran through his mind when he thought about himself and the presidency, he answered: “That office is so different from any other office on the planet, you have to understand that if you seek that office you have to be prepared to give your life to it. How I think about it is that you don’t make that decision unless you are prepared to make that trade-off.”

Even assuming, at this point, that Bush is criminally responsible for the deaths of over 100,000 people in the Iraq war, under federal law he could only be prosecuted for the deaths of the 4,000 American soldiers killed in the war. No American court would have jurisdiction to prosecute him for the one hundred and some thousand Iraqi deaths since these victims not only were not Americans, but they were killed in a foreign nation, Iraq. Despite their nationality, if they had been killed here in the States, there would of course be jurisdiction.

Indeed, Bush himself, ironically, would be the last person who would quarrel with the proposition that being guilty of mass murder (even one murder, by his lights) calls for the death penalty as opposed to life imprisonment. As governor of Texas, Bush had the highest execution rate of any governor in American history. He was a very strong proponent of the death penalty who even laughingly mocked a condemned young woman who begged him to spare her life (“Please don’t kill me,” Bush mimicked her in a magazine interview with journalist Tucker Carlson), and even refused to commute the sentence of death down to life imprisonment for a young man who was mentally retarded (although as president he set aside the entire prison sentence of his friend Lewis “Scooter” Libby), and had a broad smile on his face when he announced in his second presidential debate with Al Gore that his state, Texas, was about to execute three convicted murderers.

In Bush’s two terms as Texas governor, he signed death warrants for an incredible 152 out of 153 executions against convicted murderers, the majority of whom only killed one single person. The only death sentence Bush commuted was for one of the many murders that mass murderer Henry Lucas had been convicted of. Bush was informed that Lucas had falsely confessed to this particular murder and was innocent, his conviction being improper. So in 152 out of 152 cases, Bush refused to show mercy even once, finding that not one of the 152 convicted killers should receive life imprisonment instead of the death penalty. Bush’s perfect 100 percent execution rate is highly uncommon even for the most conservative law-and-order governors.

The Iraqi soldiers during the brief war, and the insurgents since then, were “innocent” of Bush’s crime of murder because they only killed American soldiers to repel an invader—what the Americans represented to them—or in self-defense, in neither situation possessing the requisite criminal intent to be guilty of murder. They certainly did not kill American soldiers because they were knowingly carrying out the object of a criminal conspiracy in Washington, D.C., hatched by Bush, Cheney, et al.

The report was released on July 9, 2004. After a twelve-month inquiry, the committee concluded what the 9/11 Commission had; namely, that there was no evidence that Hussein and Iraq had any relationship with Al Qaeda, and there was no evidence that Hussein and Iraq had anything to do with 9/11.

What we will be examining in this book—how the Bush administration used (misused) the intelligence it came to possess—was not examined by the Senate Intelligence Committee in 2004, because the Republican majority on the committee overruled the effort by the Democratic minority to do so. As this book went to press, the Senate Select Committee on Intelligence was scheduled to finally release its report on whether the Bush administration misused its intelligence in the lead-up to war. (The report will be classified and will not be immediately released to the American public.) But we can already just about know certain things. The report will be a mixed one because of intense quarreling by Republicans and Democrats on the Committee, particularly since there’s a presidential election in the coming months. And the hedges in the report will do the most plush Long Island estate proud. Further, when it comes to assigning personal culpability (never criminal) to individuals, nothing ever comes out of these congressional committees but pablum, thinned and pasteurized at that.

My guess is that, for the most part, the report will say that when members of the Bush administration made certain assertions, there was or was not evidence that allowed them to do so. In any event, since virtually all the inferences I have drawn in this book are based on established facts, no Senate report can change these facts.

And when Bush, just six days later, told the American people in his speech from Cincinnati that Hussein was an imminent threat to the security of this country, the opposite of what the CIA and fifteen other U.S. intelligence agencies had told him six days earlier, this alone, and all by itself (though there is so much more), is virtually conclusive evidence that Bush took this nation to war under false pretenses. It also destroys his expected defense to any murder charge brought against him that in going to war in Iraq he acted in self-defense.

Curveball and his fabrications were sufficiently important to the Bush administration in its argument for war to warrant having an entire book written about him by Los Angeles Times reporter Bob Drogin titled Curveball: Spies, Lies, and the Con Man Who Caused a War.

After seven years of UN inspections, Hussein threw all UN inspectors out of Iraq in 1998.

During those months before the war, which started on March 19, 2003, Bush and his people were so eager for war that they almost seemed offended by Iraqi efforts to avoid it. To take just one example, when, in early March 2003, Iraq started to destroy the above-referenced conventional missiles of theirs that the UN had ruled to be illegal, unbelievably, the Bush White House called the destruction of these missiles by Iraq “the mother of all distractions,” i.e., “We want to go to war. Quit distracting us by proving the war is unnecessary.” In other words, that which should have been viewed as good news was looked upon as bad news by Bush and his gang in their rush to war.

One has every reason to believe Chirac—that his position was not the result of France being pacifist or anti-American. After all, when it was clear to France and the world that Al Qaeda was responsible for 9/11, and Afghanistan was protecting Bin Laden, Americans seem to forget that France sent thousands of soldiers to Afghanistan to help us in our war against Al Qaeda and the Taliban. But obviously, Iraq, for all the reasons already alluded to in this book, was an entirely different matter. Most Americans, unable to see the difference, didn’t agree, and an April 2003 national poll showed only a 12 percent approval rating for Chirac.

I said earlier that Bush took this nation to war under false pretenses, which were the lies he told the American public about Hussein being an imminent threat and being involved in 9/11. For those who believe that there is no lie or false pretense unless the defendant states it expressly, this is not the law. Indeed, even conduct will suffice. As the courts have consistently held, “A false pretense may consist in any act, word, or symbol calculated and intended to deceive. It may be made either expressly, or by implication.”

An example, for instance, of Cheney lying just as terribly as Bush: In an appearance on Meet the Press on September 14, 2003, which was long before Al Qaeda jihadists started going to Iraq to fight the “American infidels,” Cheney said, “If we’re successful in Iraq, then we will have struck a major blow right at the heart of the . . . geographical base of the terrorists who had us under assault now for many years, but most especially on 9/11.”

In all states, it would then be up to the jury to decide what the appropriate punishment should be for the convicted defendants. Depending on the state, the punishment would range from life imprisonment with the possibility of parole, to life without the possibility of parole and the death penalty.

At this point, people like Rice might be testifying for the prosecution as part of a plea bargain, and if so, she could be expected to testify (if Bush maintained that he personally did not read the summary) that she informed Bush fully of the highlights of the report. As indicated earlier, Rice has said, “I read the National Intelligence Estimate cover to cover a couple of times.”

All humans, even the duke of duplicity, Vice President Dick Cheney, knows this is so. Stung by accusations by Bush’s former counterterrorism chief, Richard Clarke, that the Bush administration had essentially ignored the Al Qaeda threat before 9/11, Cheney, in an interview with his favorite radio host, Rush Limbaugh, countered that terrorist attacks on the USS Cole and U.S. embassies in Kenya and Tanzania had taken place “on Mr. Clarke’s watch.”

Rudy Giuliani said what Miller said, in a slightly different way, almost four years later. In April of 2007, Giuliani actually said that any Democrat who became president would endanger the nation because he would “go on defense” in the war on terrorism and “wave the white flag.” Can you imagine that?

A January 7-9, 2002, national Gallup poll showed that only 6 percent of Americans were opposed to our going to war with Afghanistan. Ninety-four percent approved, with virtually equal support among Republicans and Democrats. And the support was worldwide. For instance, eighty-nine nations joined the United States in the Afghanistan conflict by providing troops, including those from every major European country. Only thirty-two countries joined the United States in Bush’s war in Iraq, among which was only one major power, Britain.

Right after Pearl Harbor on December 7, 1941, and the assassination of President John F. Kennedy on November 22, 1963, President Franklin Delano Roosevelt and President Lyndon B. Johnson, respectively, pushed for a federal, nonpartisan investigation of the tragedies, which were thereafter conducted. What other conceivable position could they have taken? Only a George Bush would have tried to sabotage an investigation of 9/11.

The first American combat casualty in Afghanistan was Sgt. 1st Class Nathan Ross Chapman, who was killed on January 4, 2002, three months after the war commenced.

One might say it’s wonderful that we could bring about the collapse of the Taliban without the loss of one American life by having someone else fight our war for us. And I would agree. But just because it’s wonderful doesn’t mean it’s anything to be proud of, which it certainly is not. Also, probably because of this approach, we never did capture Bin Laden and bring him to justice.

The above is in keeping with what former U.S. senator Bob Graham, who was chairman of the Senate Select Committee on Intelligence in 2002, wrote in an op-ed piece in the Washington Post on November 20, 2005: “In February 2002 [one month before Bush’s remarks about Bin Laden at the press conference], after a briefing on the status of the war in Afghanistan, the commanding officer, General Tommy Franks, told me the war was being compromised as specialized personnel and equipment were being shifted from Afghanistan to prepare for the war in Iraq—a war more than a year away.”

It is estimated that an incredible 36 million people took to the streets in six hundred cities throughout the world to demonstrate against Bush’s threat to invade Iraq. In Rome, 3 million people participated in the largest antiwar protest ever. In Barcelona, 1.3 million protested; in London, 1 million, and in Melbourne and Sydney, Australia, 500,000.

Wouldn’t it have to be after five years? I mean, there are only so many adversaries to kill. As columnist Rosa Brooks observed: “The process of ‘sectarian cleansing’ is nearing completion: Sunnis have been driven out of Shiite neighborhoods [by mass murders], and Shiites out of Sunni neighborhoods.”

When Bush was asked about the fact that millions of Americans have no health insurance, he replied that “people have access to health care in America. After all, you just go to an emergency room.” Can you imagine that? Among many other illnesses, how does one treat cancer in an emergency room?

But I believe (or I should say I certainly hope) that the majority of our fighting men in Iraq are not this way; that they have the frame of mind exemplified by a young soldier who, when a brainless American television reporter asked him, “Are you eager for combat?” responded. “I’m ready.” “But are you eager?” the reporter persisted. “I said I’m ready,” the sensible soldier answered.

These were zones established by the United States, Britain, and France after the 1991 Persian Gulf War in which Iraqi aircraft were forbidden to fly. The purpose of the zones was to assist humanitarian efforts by the three countries to counter Hussein’s repression of the Kurds in northern Iraq and the Shiites in southern Iraq, who had risen up against Hussein following the war.

Although the possibility of a prosecution of Bush for torture will not be examined in this book, if it could be shown that Bush authorized the torture of Iraq and Afghanistan war detainees and prisoners that we know took place at Abu Ghraib and at Guantanamo respectively, under 18 U.S.C. §2340-2340A (the War Crimes Act of 1996), he could be prosecuted for the torture. If convicted, he could be imprisoned for “not more than 20 years.” If death resulted from the torture, he could be punished by “death or imprisoned for any term of years or for life.” For a comprehensive discussion of this whole issue of a prosecution of Bush for torture under the War Crimes Act, see Elizabeth Holtzman’s article “Torture and Accountability” in the July 18, 2005, issue of the Nation.

Although 105 nations of the world signed the ICC treaty, the United States refused. The only other nations that refused were Israel and distinguished exemplars of freedom and democracy like the Peoples Republic of China, Iraq, Qatar, Libya, and Yemen.

Section 31 of the California Penal Code—which prohibits the encouragement of children under fourteen, and lunatics or idiots, to commit a crime; or bringing about, by fraud [trickery] or force, the drunkenness of another to commit a crime; or threatening or compelling another to commit a crime—cannot be interpreted to read that the innocent agent rule only applies if the agent is tricked into committing a crime. Indeed, in the sole allusion in §31 to trickery, only the use of trickery to get one drunk, not to trick him into committing a crime (which is a separate, though related matter) is mentioned.

No one questions, when there is no time to secure congressional authorization, the power and discretion of the president to repel an invasion or suppress an insurrection. “The power need not rest on any specific provision of the Constitution; as a necessary concomitant of sovereignty itself the inherent right of national self-defense gives the President full power to defend the country against sudden attack with whatever means are at his disposal as Commander-in-Chief” (Notes: “Congress, the President and the Power to Commit Forces to Combat,” 81 Harvard Law Review, pp. 1771, 1778 [1968]). Perhaps the first acknowledgment of this appeared in James Madison’s notes at the Constitutional Convention in Philadelphia on August 17, 1787. He wrote: “Mr. M [Madison] and Mr. Gerry moved to insert ‘declare,’ striking out ‘make’ war, leaving to the Executive the power to repel sudden attacks” (The Records of the Federal Convention of 1787, pp. 318-319, edited by Max Farrand, Yale University Press, New Haven, Connecticut, 1911).

It should be noted parenthetically that perhaps the best definition of “high crimes and misdemeanors” yet was that of Supreme Court justice Story, who wrote in 1833 in his Commentaries on the Constitution of the United States that the crime had to be one “in violation of [the president’s] public trust and duties.”

Corpus delicti is not, as many lay people believe, the dead body in a homicide case, but rather the body or elements of the crime.

And even this authorization would have been vitiated if obtained by false representations made to the United Nations by the Bush administration, which occurred in this case (e.g., in Secretary of State Colin Powell’s address to the UN Security Council on February 5, 2003). Moreover, an American court prosecuting Bush for murder where he had gotten a UN resolution authorizing war could be expected to say, in effect, “Although the United Nations can authorize war, it cannot authorize murder. There is no statutory defense to murder in the criminal codes of this state (e.g., Arizona, Vermont, California) called ‘the United Nation’s defense.’” So even UN approval would not, per se, insulate Bush from criminal responsibility. But as indicated, this discussion is moot since the United Nations never gave its approval for Bush to go to war.

It should be noted that when Bush went to war, the United Nations had not declared that Iraq was in violation of the new round of inspections commencing in November of 2002 and continuing right up to almost the eve of war.

In October of 2005, the New York Times learned the contents of a then classified 2001 report by a historian for the National Security Agency (NSA), the nation’s top-secret eavesdropping and code-breaking agency. The historian, Robert J. Hanyok, wrote in his report that during this second incident, NSA officers had misinterpreted North Vietnamese intercepts, making an apparently honest mistake in concluding that there had been an attack. However, after months studying documents in the NSA archives, Hanyok further concluded that midlevel agency officials at NSA discovered the errors very shortly thereafter but covered the errors up and doctored documents so as to provide evidence of an actual attack. Hanyok’s report also concluded that neither President Johnson and his advisers nor even top NSA and defense department officials knew of the deception.

If Hanyok is correct, this inexcusable deception played a part in Congress ultimately signing the Gulf of Tonkin Resolution, which authorized war with North Vietnam. Indeed, the first paragraph of the Resolution reads: “Whereas naval units of the Communist regime in Vietnam, in violation of the United Nations and of international law, have deliberately and repeatedly attacked United States naval vessels lawfully present in international waters . . .” So the deception could not have been more serious, although, as indicated, no one disputes the first attack on the Maddox, which alone could have contributed substantially to the resolution. Edwin E. Moise of Clemson University, a longtime student of the Gulf of Tonkin incident, said he was “surprised at the notion of deliberate deception at NSA. But I get surprised a lot.”

On November 30, 2005, the NSA released the classified report, and it confirmed the accuracy of the October New York Times article. In the report, Hanyok says the NSA’s intelligence officers “deliberately skewed” the evidence passed on to policy makers to lead them to believe that North Vietnamese ships had attacked American destroyers on August 4, 1964. Hanyok said that 90 percent of the NSA’s intercepts of North Vietnamese communications regarding the alleged August 4 attack were never passed on to policy makers. “The overwhelming body of reports, if used, would have told the story that no attack had happened. So a conscious effort ensued to demonstrate that an attack occurred.”

Courts normally hold it is a defense to all crimes except homicide. However, where, if true, the lives of millions of Americans were at stake, if other requirements were met I imagine a court would say that committing a homicide was justifiable.

The hypothetical the ALI presents as a justification for saying it would be “a mistake to erect imminence as an absolute requirement” is the following: “If A and B have driven in A’s car to a remote mountain location for a month’s stay and B learns that A plans to kill him near the end of the stay, B would be justified in escaping with A’s car although the threatened harm will not occur for three weeks.”

Could it be “read into” §1117 that for Bush to even be guilty of conspiracy to commit murder, he had to conspire to commit murders that were to take place “within the territorial jurisdiction of the United States,” on the rationale that such language is a part of the murder statute, §1111? No. That language, in §1111(b), is not a part of the definition of murder under §1111(a). Indeed, it is in a separate paragraph following the definition of murder. Moreover, that language does not deal with the issue of whether there was a murder, but whether the federal authorities have the jurisdiction to prosecute it. As the court said in United States v. Young, the federal definition of murder “is found exclusively in section 1111(a) . . . Section 1111(b), by contrast, is not a definitional section at all. Instead it sets forth penalties for murder under §18 U.S.C. §1111 and creates a jurisdictional requirement for such [murder] count” (248 F. 3d 274-275 [2001]; see also, U.S. v. Tuck. Chong, 123 F.Supp. 2d 563, 566 [1999]).

In a sense, comparing an overt act in a conspiracy with an act constituting a criminal attempt is like comparing apples with oranges. The two don’t lend themselves to comparison if for no other reason than that although there can be acts constituting a criminal attempt to commit every other crime on the books (such as attempted arson, or rape, burglary, murder, extortion, theft, etc.), I’ve never even heard of an attempted conspiracy, and am under the impression that no such crime exists.

Remarkably, Hollywood director Oliver Stone, whose specialty is distorting history in his cinematic reveries (e.g., in his film, JFK, on the assassination of President John F. Kennedy, other than having the city, date, and victim of the assassination correct, his movie was one continuous lie), actually went further when he suggested in his movie Born on the Fourth of July that Nixon, not LBJ, was the one most responsible for the Vietnam War.