CHAPTER 1: OPENING UP ONE’S EYES

It should be noted that although the United States has always maintained that American planes flying in the two no-fly zones (covering about 60 percent of Iraq) were doing so pursuant to UN resolution 688 (April 1, 1991), there is no language in 688 that authorized these flights. Therefore, the no-fly zones created by the United States, Britain, and France seemed to be unauthorized, and hence, illegal intrusions on Iraqi airspace. Indeed, Boutros Boutros-Ghali, the secretary general of the United Nations in the early 1990s, said the zones (whose purpose seemed to have ended within a year after the Persian Gulf War and degenerated in later years into being used by the Americans and British to conduct surveillance flights on Iraqi military installations, often bombing them) were “illegal.” That was always the position of Hussein, who contended the flights were invasions of his nation’s sovereignty, and this is why he ordered his aircraft to fire at the planes.

There is one further observation to be made. As of the beginning of the Iraq war in 2003, American and British planes had flown approximately 150,000 flights in the no-fly zones over Iraq during a twelve-year period. Iraqi antiaircraft had fired hundreds upon hundreds of thousands of rounds at the planes and yet not only wasn’t one plane ever shot down, but unbelievably, not one single round ever hit an American or British plane. How is this humanly possible? It would seem that either Hussein’s air defense personnel were the poorest shooters in history or Hussein—not wanting to actually shoot down a plane for fear of igniting a devastating retaliation against him—was merely venting his anger at the United States and Britain, and the rounds were never intended to hit the planes.

Let’s not forget, then, that Hussein was not an enemy of the United States, and never had been. He was an enemy that George Bush, for whatever reason, created out of whole cloth. Not that I would ever accept the uncorroborated word of someone like Saddam Hussein, but when there isn’t a speck of evidence to the contrary, I believe what he told Dan Rather in a February 24, 2003, interview. He urged Rather to “convey” to all Americans “that the people of Iraq are not the enemy of the American people.” President Bush, flat-out lying, said on July 12, 2004, as well as on other occasions, that “we removed a declared enemy of America.” But the only one who declared that Hussein was an enemy was Bush himself, yet no member of the media ever called him on the falsehood. Not only hadn’t Hussein ever declared that he was an enemy of the United States (my God, we were his biggest oil customer and thereby largely financed his regal lifestyle), but to the contrary, as we have seen, he said the precise opposite. And indeed, on December 20, 1983, Donald Rumsfeld, serving as a special envoy of President Reagan (who gave a pair of cowboy boots to Hussein), traveled to Baghdad and, with a warm smile and handshake (captured by photograph), assured Hussein that the latter could count on America being in his corner in his war with Iran.

But this is all relatively insignificant when compared to the real reason why the notion that Hussein was a threat to this country is too preposterous for words. A few days after Bush gave his first televised speech to the nation (October 7, 2002) asserting that Hussein was an imminent threat to this country, I was having my five strands of hair trimmed at a seven-dollars-a-cut barber I’ve been going to for years. Joe (not his real name) is a rather bright and very conservative fellow. His weakness, like that of the overwhelming majority of people, is that he doesn’t like to give his mind a workout. I asked him, “Joe, if someone gave Saddam Hussein an atomic bomb and gave him the choice of either dropping it on Baghdad or New York City, what would he do?” I already knew, of course, what Joe would say, and he didn’t disappoint me. “New York City,” he answered quickly. “No, Joe,” I said. “You are 100 percent wrong. Obviously, he’d drop it on Baghdad. Hussein, as you know, Joe, is a human monster. Why would he care if thousands of Iraqis were killed? He’s been murdering his people for years. If he dropped a bomb on Baghdad, he’d be safely ensconced in a bunker somewhere and he’d be just fine. But, Joe, if he dropped it on New York City, he’d be dead the following day. And guess what, Joe?” “What?” “The last I heard, Hussein wants to live.” Joe stared at me for a long moment, then said, “I guess if you put it that way.” Whereupon I responded, “Joe, there is no other way to put it.”

The notion that Hussein would do something that would only serve to ensure his annihilation is too ludicrous to even contemplate. Hussein, obviously (as opposed to the Islamic fundamentalists who crashed into the Twin Towers on 9/11), desperately wanted to live. This incontrovertible reality was confirmed beyond all doubt when, at the time of his capture and arrest on December 13, 2003, in the small town of ad-Dawr in Iraq, near Tikrit, he was found hiding like a rat at the bottom of an eight-foot spider hole near a small mud-walled compound he was living in. “Don’t shoot,” he said to his military captors. This all makes the notion of his wanting to attack the United States of America all the more insane. I mean, here’s someone who had two people, independent of each other, testing every morsel of food that he ate, who slept in a different bed every night; someone who owned forty, yes, forty palaces and loved his life as the supreme dictator of his country. Why would he do anything at all that could only jeopardize his existence? He would have nothing to gain and everything to lose.

It’s so downright silly that one could make it the subject of a cartoon. You know, Qusay, one of Hussein’s sons, asks his father why he’s not eating his eggs, and Hussein responds, “Qusay, Abdul has already tested the food on my plate, but Habib hasn’t yet. By the way, is our nuclear bomb still on schedule for the White House at 2:30 this afternoon?”

“Ah,” but the war hawks say, “if Hussein wouldn’t drop a bomb on us because he’d be afraid of retaliation, he could secretly give the bomb to a group of terrorists like Al Qaeda, who would.” But again, Hussein would still be doing something that could cause his annihilation the moment it was discovered, which it almost assuredly would be. Everyone knows that three people can keep a secret, but only if two are dead. Indeed, Hussein would know he’d be destroyed even if it were never proven he was complicit and it was merely suspected that he was. As Joseph C. Wilson, chief of mission at the U.S. embassy in Baghdad from 1988 to 1991, said at the time: “Hussein has long known that every terrorist act, and particularly a sophisticated one, raises the question of his involvement and invites blame.” (And of course we know that even though Hussein had nothing to do with 9/11, Bush and his people successfully convinced the majority of Americans that he did. See discussion in Chapter 4.)

In any event, what would have been in it for Hussein to provide terrorist groups with his weapons of mass destruction? That they would pay him money for them? Hussein, with these forty palaces and owning the second-largest (next to Saudi Arabia) oil reserves in the world, needed some extra spending money? Or would the reason be that he hated us so much that he wanted to kill as many of us as possible? But again, though he undoubtedly hated Bush Sr. and Bush Jr. (Iraqi papers called Bush Jr. “the son of a snake”), where was there any evidence that Hussein hated America or its people? Even if we were to assume, for the sake of argument, that he had this hatred, his instinct for self-preservation, the strongest human instinct, would have easily trumped that hatred. Furnishing nuclear or biological and chemical weapons to groups that truly do hate America, like Al Qaeda, would be something we can feel very confident Hussein would never have even dreamed of doing, even in the most fleeting of his reveries, since he would be taking by far the most life-threatening step he could ever take, with nothing to gain from it.

With respect to the allegation that Hussein would be willing to work in concert with groups like Al Qaeda by furnishing them with WMD, there is evidence that when overtures were made to each of them to work with the other, they both were opposed to it. This was so because Hussein and Al Qaeda went together as well as oil and water. Among other things, Hussein was not only secular, but a dictator who subjugated his people. And the emphasis in his regime was on making money and providing a lavish lifestyle for Iraqi leaders, whereas Bin Laden’s lifestyle was that of ascetic Islamic fundamentalism. In Bin Laden’s audio-taped message in early February 2003 to his “Muslim brothers in Iraq,” in which he urged the Iraqi people to fight in the trenches against America and the “allies of the devil [America],” he clearly distanced himself from Hussein, calling Hussein an “apostate.” However, although not agreeing to work with Hussein, he noted that “in the current circumstances” the interests of the Muslim masses in Iraq “coincide” with those of their leader, who, he said, like leaders in Jordan, Morocco, Nigeria, Pakistan, Saudi Arabia, and Yemen, was responsible for the “enslavement” of their people.

Although the Bush administration, before the war and after it commenced, claimed that a Jordanian terrorist fighting U.S. forces in Iraq, Abu Mousab al Zarqawi, was a member of Al Qaeda, later evidence contravened this. In a letter to Bin Laden acquired from a captured courier in 2004, Zarqawi literally beseeched Bin Laden for his support in the terrorist movement against the U.S. in Iraq, saying he needed help. He added, “We do not see ourselves as fit to challenge you.” Zarqawi is only asking for an opportunity “to work under your banner, comply with your orders” (Newsweek, November 1, 2004). Osama wasn’t interested.

Returning to the central point, the fact remains that if we base our conclusion on common sense and the evidence that existed at the time Bush invaded Iraq, Saddam Hussein was not an imminent threat to this country, and therefore, the Bush administration had no justification whatsoever for going to war with Iraq. If the threat of retaliation was enough to deter Hussein’s hero, Joseph Stalin—someone whose country was a hundred times more powerful than Iraq, and for a time in the late fifties may have had nuclear superiority over this country (eliminating the presumed “missile gap” was a part of JFK’s campaign for election in 1960)—certainly it would be, and was, a deterrent to a small and militarily enfeebled nation like Iraq that was still shattered by, and trying to recuperate from, two recent wars. To believe otherwise is to knowingly thumb one’s nose at all conventional notions of logic and common sense, and elevate illogic to stratospheric heights.

But for whatever reason, in all the newspaper and magazine columns and articles as well as editorials I read on the impending war back in 2003, I did not read one that made the obvious argument that Hussein was not a threat to this country because if he attacked us or helped anyone else do so, he knew he would be destroyed by certain retaliation, and he wanted to live, not die. Not one.

Indeed, the mesmerization of America on this issue was so complete that in addition to the right-wing fanatics, even a considerable number of the liberal cognoscenti, three sheets to the wind from imbibing Bush’s tommyrot, wanted to go to war. Writing in the New York Times (January 8, 2003), Bill Keller said, “The president will take us to war with support from quite a few members of the East Coast liberal cabal. The I-Can’t-Believe-I’m-a-Hawk Club includes op-ed regulars at this newspaper [New York Times], and The Washington Post, the editors of The New Yorker, The New Republic and Slate, and columnists in Time and Newsweek, because we are hard pressed to see an alternative that is not built on wishful thinking.” Right, Bill, it was just wishful thinking that Hussein wouldn’t attack America with deadly force the first opportunity he got. Keller’s infantile thinking was mirrored by millions of everyday Americans. “I’m all for peace,” a subscriber to Time magazine wrote the editor, “but are we just going to wait for Saddam to attack first?”

At the end of CBS anchorman Dan Rather’s February 26, 2003, one-hour special on his coup interview of Hussein, Rather told his TV audience that the thing that came through about Hussein above all else was that he “judges victory by only one measure: his own survival.” It would have been nice if the veteran newscaster had added the few words—“And that makes one wonder why he would want to attack the United States or help anyone else to do so?”

Is there any concrete, empirical evidence to support the commonsense deduction that he would not have? Although the proposition is so obvious that it is intellectually sustainable without such evidence, in point of fact there is. On the eve of the Persian Gulf War in 1991, Secretary of State James Baker told Iraqi foreign minister Tarik Aziz that the U.S. would destroy Iraq (as opposed to just removing its forces from Kuwait) if Hussein used chemical and biological weapons on American forces the way he used these weapons in his war with Iran. And we know that Hussein did not use such weapons (which at the time he did have) on American soldiers in the Gulf War.

To conclude, even if, as Bush so fervently claimed, Hussein did have weapons of mass destruction at the time Bush invaded Iraq (which we have learned he did not), the belief that he was an imminent threat to the security of this country, which Bush got the media and the vast majority of Americans to believe, was preposterous on its face.

18 . . . the real, unstated reason the Bush administration had for invading Iraq was to overthrow Hussein and establish democracy in Iraq . . . When we trace the genealogy of this purported reason for invading Iraq back to its roots, we find that, at least as early as 1996, three neoconservatives—Richard Perle, Douglas Feith, and David Wurmser, all of whom ended up in the Bush administration—published a paper titled “A Clean Break: A New Strategy for Securing the Realm.” The paper recommended invading Iraq and deposing Hussein not to remake the Middle East so it would be less of a threat to the United States, but less of a threat to Israel, a declared enemy of Hussein’s. Indeed, the paper said that after Hussein was toppled, a leader should be installed to head Iraq who was friendly to Israel. If the monstrous Iraq war, with its incalculable losses and suffering, was all about helping our friend Israel (which supported our invasion of Iraq), not the United States, do I have to say how serious the implications of this are?

Ultimately, with Iraqi democracy in flames, we have seen that Bush has been reduced to arguing that Iraq has become the central front in the war on terror, thus necessitating our indefinite engagement there.

19 Apart from the wholly unrealistic and fanciful notion of changing the political culture of the Arab world to our liking . . . The Arab world, with its centuries of very deep religious and secular schisms and rivalries among warring factions, not to mention official intolerance of dissent, is going to give this all up, in Bush’s dream, for democracy, which by its nature is pluralistic and tolerant of dissent? And a type of democracy that’s friendly to the United States? Under what theory? Nearly all of the Middle East is Arab, and since America supports Israel in its war against the Palestinians, who are Arab, this fact alone makes most of the Arab world not like us.

Also, let me see if I can get this straight. Bush was going to bring democracy to the Arab world, not by overthrowing one of the countries with Islamic rule and no democracy like Saudi Arabia or Iran, but by toppling Hussein, whose governance in Iraq was secular? Say again? Shlomo Avineri, professor of political science at the Hebrew University of Jerusalem, points out the “dangerous illusion” of Bush’s plan to democratize the Mideast by the mere means of deposing Hussein and having free elections. “Democracy doesn’t mean simply holding elections,” he says. “First, you need a democratic culture—a tradition of voluntary associations, a tolerance for nonconformism and pluralism, a shared belief in the dignity of the individual, separation of political power from religious authority and a belief in the legitimacy of dissent.” None of which presently exist in the Arab Mideast and which are not easily (if at all) exportable.

Before we even get to the notion of spreading democracy, since the Shiites and Sunnis have been enemies since A.D. 632, and since the Shiites are the majority Muslim sect in Iraq and they’ve been chafing under Sunni domination for five centuries, wouldn’t a democratic election automatically result (as it did) in the Shiites winning power? And as deeply steeped in their religious beliefs as they are, isn’t it just a matter of time before they establish a theocracy (to replace the nascent democracy) in Iraq? And aren’t Islamic extremists—the type who were involved in 9/11—much more likely to come from the loins of an Islamic nation than from the secular Iraq of Saddam Hussein? And shouldn’t Bush’s people automatically know such things?

CHAPTER 3: PROLOGUE TO THE PROSECUTION OF GEORGE W. BUSH FOR MURDER

39 While young American soldiers were scavenging for their “hillbilly” armor . . . As has been widely reported, of all the contracts awarded to American firms to rebuild Iraq, the largest by far ($2.3 billion) was awarded to Halliburton, the company Cheney headed (and to this day still receives compensation from) before resigning to run with Bush in 2000. As if the aroma of cronyism was not strong enough, Halliburton’s contract to repair Iraq’s oil infrastructure was secretly awarded to it, without bids (in violation of federal law). Since then, apparently because Halliburton felt it was being underpaid (I’m being sarcastic), it has overbilled the Pentagon well in excess of $100 million. When the overbilling was discovered, instead of Halliburton being prosecuted criminally for the crime of grand theft (obtaining money by false pretenses), Bush merely said that Halliburton would have to pay the money back. Can you imagine a bank robber being told that if he did that he wouldn’t be prosecuted?

44 These “men” refused to fight for America when it was their time to fight for this country . . . What is even more unflattering to Bush, Cheney, et al. about their decision not to fight during the Vietnam War is that back then, America and nearly the entire free world deeply feared the global spread of communism, and America had come to the brink of nuclear war with the Soviet Union during the Cuban Missile Crisis in October of 1962. (The New York Times said that “historians have called it the most dangerous moment in recorded time.”) The fear over Vietnam (which we now know was an erroneous one since North and South Vietnam were only involved in a civil war) was that if communist North Vietnam prevailed, under the so-called domino theory this communist victory might spread throughout Southeast Asia and eventually end at our doorsteps. Secretary of State Dean Rush predicted to President Lyndon Johnson that if America didn’t stop the communists in Vietnam it would “almost certainly” end in a “catastrophic war” for America. But even with this fear, which made fighting for this country, many Americans thought, imperative, Bush, Cheney, and Rove decided to bow out, and ran away.

53 . . . how much he suffers over the loss of American lives in Iraq . . . Bush supporters invariably cite his many meetings (usually as an adjunct to his political visit to a city around the country) with what the White House calls the “families of the fallen.” But they always fail to point out how such visits are synonymous with his suffering or losing any sleep over what happened to these fallen soldiers. Wouldn’t it be a non sequitur to say that they necessarily are?

58 He prefers to run the most important country on earth not by reading up . . . Isn’t it just lovely that during his day in the Oval Office, our nation’s chief executive apparently is getting his spiritual guidance on how to conduct the affairs of state from his personal conversations with God? Yes, the affairs of state. I mean, when Bush is talking about reading Chambers “on a daily basis to be in the Word,” you have to know he’s not talking about having God help him decide when and what to eat, whether he should watch the Alabama-Arkansas or Indiana-Ohio State football game on TV, or whether to leave for Camp David for his long weekend at 2:30 or 3:30 p.m. When Bush himself said that in making up his mind on whether to go to war in Iraq “there is a higher father I appeal to” than his biological father, doesn’t that eliminate any perceived ambiguity on this matter?

63 . . . the blatant cronyism he has practiced in his federal appointments. If any reader is thinking about John F. Kennedy’s appointment of his brother Robert F. Kennedy as the nation’s attorney general, put that thought out of your mind. Not only did RFK have a passion for civil rights reform and fighting organized crime, two of the biggest problems facing the nation in 1961, but RFK had already served as chief counsel for the Senate’s McClelland Committee (commonly referred to as the “Rackets Committee”) and earlier for the Senate’s Permanent Sub-Committee on Investigations, both of which went after organized crime in America. So RFK had a lot of experience in going after the mob, and there can be little question that his record against organized crime and his civil rights enforcement as attorney general were the best in the history of the department.

64 Instead, Bush vigorously defended Tenet . . . On December 1, 1961, President John F. Kennedy presented the National Security Medal, America’s highest award for intelligence work, to Allen Dulles. This was after the disastrous Bay of Pigs invasion that Kennedy, as well as his predecessor, Eisenhower, had been influenced to support by the misinformation of Dulles’s CIA. But to put this on the same level as what Bush did for Tenet would be very wrong. Number one, Bush never fired Tenet. Kennedy fired Dulles (that is, accepted his resignation). Also, the award Tenet got was much more prestigious than the one Dulles received. Additionally, not one American soldier was killed in the Bay of Pigs, a three-day affair, whereas if Bush, as he claims, based his invasion of Iraq on CIA intelligence that Iraq had WMD, this resulted in a war already five years long that has claimed thousands of American casualties. And finally, Dulles almost single-handedly founded the modern-day CIA, was its longest-serving director, and was an acknowledged giant in his field. Tenet was none of these things.

79 . . . you’re not going to have a perfect day. For those right-wing Republicans who say my calling Bush a son of a bitch shows a terrible lack of respect for the office of the presidency, I say this. I only have a total lack of respect for Bush, not the office he occupies. Indeed, one of the many reasons I have an animus for Bush is that I do have a lot of respect for the office of the presidency, and deep contempt for him for what he has done under the august imprimatur of that office.

By the way, although to this very day the hardcore right (about 30 percent of the Republican Party) thinks that Bush had every reason to do what he did in Iraq, and supports him without the slightest qualification, can you imagine, can you just imagine what their position would be if Clinton were in Bush’s shoes? If he had done the exact same things Bush did in taking us to war in Iraq under false pretenses, with all the incredibly horrific consequences? I would bet my life, wager every penny I have, that these hypocritical SOBs would be savaging Clinton at the top of their lungs every day and demanding, not his impeachment or even imprisonment, but his scalp. I am absolutely, 100 percent sure of this.

CHAPTER 4: THE PROSECUTION OF GEORGE W. BUSH FOR MURDER

82 . . . Bush should have been impeached, convicted, and removed from office. Since Bush is near the end of his term in office, the drawn-out impeachment process would no longer be viable. Moreover, even if there were time and he was impeached, it is fanciful to believe that two-thirds of a Senate that is nearly evenly divided would convict him, as is required by the Constitution.

82 This, for being responsible for over 100,000 horrible deaths? The 100,000 figure is an extremely conservative estimate. A 2007 national survey in Iraq by a British polling agency, ORB, which asked 1,499 adults, “How many members of your household, if any, have died as a result of the conflict in Iraq since 2003?” found 22 percent of Iraqi households that had suffered at least one death, for a projected 1.2 million deaths. A 2006 analysis by the John Hopkins Bloomberg School of Public Health, which was published in the British medical journal Lancet, estimated that 655,000 Iraqi civilians had died in the war. Both of these estimates are considered high by most experts. The lowest estimate of Iraqi civilian war dead comes from the Iraq Body Count, a nongovernmental British group that bases its numbers only on news media accounts, which everyone presumes to be low. From the beginning of the war to December 26, 2007, between 81,026 and 88,466 Iraqi civilians died in the war, the Body Count group said. The most comprehensive study of Iraqi war dead was released in January 2008 and was based on a survey by the Iraqi government supervised by the World Health Organization. The report said that around 150,000 Iraqis died violently in the war between the start of the war in March of 2003 and June of 2006. (Many thousands, of course, have died since then.)

85 . . . one of their options being the imposition of the death penalty . . . Actor Robert Redford, an outspoken foe of Bush and his administration for the Iraq war and an otherwise bright man, has called for a public apology from Bush and his people for “being transparently deceptive about weapons of mass destruction.” Bob, apart from the fact that they of course would never, ever do that, if an apology won’t even get you off the hook for a traffic ticket, much less a theft, burglary, or even one murder, it might not be quite enough for thousands of murders.

85-86 . . . many have argued that “Bush should be prosecuted for war crimes” (mostly for the torture of prisoners at Abu Ghraib and Guantanamo) at the International Criminal Court in The Hague, Netherlands. But for all intents and purposes this cannot be done. The International Criminal Court (ICC) was created in 2002 in Rome by the United Nations, but although it has a close functional relationship with the UN, it is independent of it. Among the obstacles that would preclude a prosecution of Bush at the ICC for his war in Iraq is the accepted definition of the term “war crimes.” War crimes are considered to be large-scale atrocities and crimes against humanity committed during wartime, and thus far have been limited to genocide (the main war crime by far, and which is not involved here), mass torture, and rape. Although torture and rape have been committed by American soldiers in Iraq, certainly Bush never authorized the rapes, which were very few. The torture at the Abu Ghraib prison in Iraq and Guantanamo in Cuba in violation of the Geneva Conventions of 1949 not only was probably on too small a scale for a typical war crimes trial, but it is not clear that Bush himself authorized the torture. A February 7, 2002, executive order of his mandated that all detainees be treated humanely.³⁶

But there are even greater obstacles. One, the ICC only has jurisdiction over nations that are a party to the ICC treaty, which the United States is not.³⁷ But even if it were, the ICC is a court of last resort. Article 17(a) of the statute creating the war crimes court expressly provides that it can only exercise its jurisdiction over a matter when the courts of the nation where the prospective defendant lives (here, Bush in the United States) are “unwilling or unable to genuinely carry out the investigation or prosecution.” Of course, one of the two major purposes of the “Prosecution” chapter is to demonstrate that although it may turn out that no state or federal prosecutor may be willing to prosecute Bush for murder, they certainly have the jurisdiction and hence are able to.

However, even in situations where the ICC has no original jurisdiction, it can achieve jurisdiction over the citizens of every country in the world irrespective of the above exclusionary conditions if the United Nations Security Council refers a case to the ICC for criminal prosecution. The council consists of five permanent members (United States, China, France, Russia, and Great Britain) and ten countries that serve temporary two-year terms. At least seven of the fifteen Security Council members are needed for any resolution, and each of the five permanent members (except the one that is a party to the dispute; here, the United States) has veto power. It is inconceivable to me that the other four permanent members of the Security Council, one of which is Great Britain (which was complicit with Bush in the Iraq war), would all agree to pass a resolution referring Bush to the ICC for a war crimes prosecution. It’s not going to happen. Indeed, even if that happened, and the ICC charged Bush with the war crime of over 100,000 deaths in the Iraq war and issued an arrest warrant to bring him to trial, the ICC is not invested with the power to execute its arrest warrants. Hence, it has to rely on governments to surrender their citizens to them. But the United States would not likely turn Bush over to the ICC for prosecution.

87 In the law, as in its well-known sense, the word “cause” means “to bring about, to bring into existence.” United States v. Leggett, 269 F. 2d 35 (1959).

88 And as the court said in the 1993 case of Gallimore v. Commonwealth of Virginia: “The doctrine of innocent agent. . . .” Gallimore v. Commonwealth of Virginia, 436 S.E. 2d 421, 424 (1993). The doctrine of innocent agent is well established in the criminal law, e.g., Smith v. State, 17 S.W. 552 (1886); Aldrich v. People, 79 N.E. 964, 966 (1907); State v. Bailey, 60 S.E. 785 (1908); United States v. Kenofskey, 243 U.S. 440 (1916); United States v. Incisco, 292 F. 2d 374 (1961); United States v. Levine, 457 F. 2d 1186 (1972); see also Section 2.06, 2(a) of the Model Penal Code and Commentaries, Part 1, 1985, American Law Institute.

88 The innocent agent “is not an offender” . . . (People v. Keller, 79 C.A. 612, 617 [1926]).

88 The defendant “is guilty as if he had done the act himself.” (People v. Whitmer, 16 N.E.2d 757-758 [1938]).

88 . . . he is criminally responsible for the thousands of American deaths in Iraq. Although the typical situation is where the innocent agent has been tricked or duped by the principal into committing his act, there is no such legal requirement, in the cases or by statute, that this exist before the innocent agent doctrine applies.³⁸ With the whole purpose for the doctrine being to prevent someone from escaping criminal responsibility by getting someone else to do his dirty work for him, why would the law care how he got the party committing the act to do it?

89 In the law, to instigate is “to stimulate . . . (Snider v. Wimberly, 209 S.W. 2d 239, 242 [1948]).

89 So Bush would be criminally responsible for the deaths of the 4,000 American soldiers under both the theories of vicarious liability and aiding and abetting. Under the aiding and abetting theory, the innocent agent, of course, still makes an appearance as the perpetrator of the killing. Under both the vicarious liability of conspiracy and aiding and abetting theories, the innocent agent has no criminal culpability for the killings since, as indicated, he has no criminal intent. So the very same killing by the innocent agent is a legally justifiable homicide as to him, but murder as to Bush.

92 Surely Bush couldn’t be heard to argue that a president is incapable of committing a crime under the U.S. Constitution . . . With respect to the issue of whether or not Bush could find any sanctuary in the U.S. Constitution for his criminal conduct, it should be pointed out that by Congress’s joint resolution on October 11, 2002, giving its consent for Bush’s invasion of Iraq, the normal constitutional question of whether the president, independent of Congress, can go to war with a foreign nation is rendered moot. But as a summary of constitutional law on this point, Article I, §8, cl. 11 of the U.S. Constitution gives Congress the power to declare war. The basis for this power is Article I, §8, cl. 1, which provides that Congress shall “provide for the common defense and general welfare of the United States.” Although Article II, §2, cl. 1 does provide that “the president shall be Commander-in-Chief of the Army and Navy of the United States,” technically this only places the president at the head of this nation’s armed forces. It clearly envisions, as a predicate to his conducting war as the head of the nation’s armed forces, that war has been declared. And Article I, §8, cl. 11 (“the Congress shall have power . . . to declare war”) exclusively and unambiguously gives that power to Congress, not the president. To assume that Art. I, § 8, cl. 11 only gives Congress the power to utter the words, or put in writing “We declare war,” not actually initiate war, is to assume that the framers intended to confer upon Congress a totally idle and meaningless power.

So much for the interpretation of words and phrases, and the apparent intent of the framers of the Constitution. The reality is that throughout much of this nation’s history, presidents, without the approval of Congress, have time and again committed American military forces abroad. Although all presidents, during their inauguration ceremonies, swear to uphold the Constitution, when it comes to arguably the most serious and important (in terms of consequences) part of the Constitution—who has the right to commit the military forces of this nation to an armed conflict with another nation—most presidents, even self-proclaimed “strict constructionists” of the Constitution like Ronald Reagan and the first President George Bush, have cavalierly ignored the explicit constitutional language and their presidential oath. As political commentator Russell Baker has wryly observed: “Presidents now say, sure, the Constitution gives Congress the right to declare war, but it doesn’t forbid Presidents to make war, so long as they don’t declare it. As a result, the declared war has become obsolete. Its successor is the undeclared war.”

In a 1952 U.S. Supreme Court case dealing with a different use of presidential power, the dissent noted that even as of that date, fifty-six years ago, there had been “125 incidents in our history in which presidents, without congressional authorization, and in the absence of a declaration of war, have ordered the armed forces to take action or maintain positions abroad.” (In fact, only five times in the nation’s history has Congress declared war: the War of 1812, the Mexican War (1846), the Spanish-American War (1898), and World Wars One (1917) and Two (1941).) In the Persian Gulf War, although Congress adopted resolutions authorizing the use of force (not quite the same as a declaration of war), the Bush administration flatly asserted it had the right to commit the nation to war without a congressional declaration of any kind. A 1966 Department of State memorandum states: “Over a very long period in our history, practice and precedent have confirmed the constitutional authority to engage the United States forces in hostility without a declaration of war” (“The Legality of United States Participation in the Defense of Vietnam,” 54 Department of State Bulletin, 474, 488 [1966]).

So presidents throughout our history (and even since the 1973 War Powers Resolution [50 U.S.C. §’s 1541-1548], which directs, among other things, that the chief executive shall at least “consult with Congress,” a law that no president or Congress has taken very seriously) have for the most part not even bothered to seek congressional approval for the employment of military forces abroad. Just a few relatively recent examples include President Bush’s invasion of Panama in 1989 and President Clinton’s bombing of Kosovo in 1999.

Although, as indicated, the above issue of the dichotomy between presidential as opposed to congressional power in going to war is not an issue in the proposed prosecution of Bush, what is instructive—in fact, almost dispositively so—from all the examples of this nation’s use of force in foreign lands, with or without congressional approval, is that every single one of the presidents involved did so (at least there’s no credible evidence to the contrary) not only to protect the security and welfare of this country, but they acted in good faith, without criminal intent. That, I believe any historian will find, is the common thread behind all of their actions.

Despite this, we can expect Bush’s legal team to trot out, in his defense, the so-called war power of a president, an “inherent” power whose many proponents acknowledge no constitutional language expressly grants, but which, they say, is implied from the aggregate of the president’s enumerated powers under the Constitution, particularly Article II, §1, cl. 1 that says: “The executive power shall be vested in [the] President . . .”; Article II, §2, cl. 1 that says: “The President shall be Commander-in-Chief of the Army and Navy of the United States . . .”; and Article II, §3 that says: “He shall take care that the laws be faithfully executed . . .”

The exercise of the “war power” by a president has indeed taken place not only when a president orders this nation’s military intervention on foreign soil without congressional authorization, as President Truman did with the Korean War in 1950, but when he takes some action in the conduct of any war, e.g., President Lincoln’s suspension of the writ of habeas corpus in 1861 during the Civil War.

The position that Bush would have to take under the inherent war power argument is that even if he did not take this nation to war lawfully (which he would first maintain he did) and did so, as the prosecution would allege, under false pretenses, his “war power” would protect him from criminal prosecution because the power is absolute, giving him complete discretion. Unfortunately for Bush, there is no authority for this. Two of the principal cases Bush would be expected to rely upon to support his “president as dictator” position are The Prize Cases and the Curtiss-Wright case. In The Prize Cases, the Supreme Court dealt with President Lincoln’s declaration in 1861 that the Confederate states were in a state of insurrection against the United States, and the constitutionality of his order, pursuant to this civil war, to blockade and seize foreign ships doing business with Confederate states. The owners of these ships, challenging Lincoln’s actions, sued the federal government, but the U.S. Supreme Court upheld the blockade and seizure. In doing so, the court said that the question of how a president should respond to such a state of war is one “to be decided by him.”

Though this language has given hope to adherents of expansive presidential war powers, it should not, since the context in which it was used shows it was clearly limited to an emergency situation. The court said that for constitutional purposes, an insurrection was no different than repelling a foreign invasion. It is clear that the “to be decided by him” words the court used dealt with the president “suppressing an insurrection” and determining “what degree of force the crisis demands” (The Prize Cases, 67 U.S. [2 Black] 635-638, 647-649, 668, 670 [1862]). Hence, The Prize Cases only stand for the constitutionality of any defensive war a president might wage unilaterally.³⁹ Obviously, Bush’s taking this nation to war when we were neither being invaded by Iraq, nor about to be, can find no justification in The Prize Cases. Even if the facts had been similar, Bush’s great criminality, as opposed to the conduct of Lincoln, would make such a comparison repugnant.

In Curtiss-Wright, Congress passed a joint resolution in 1934 providing that if the president found that prohibiting “the sale of arms and munitions of war in the United States to those countries [Bolivia and Paraguay] now engaged in armed conflict in the Chaco [a region encompassing parts of Bolivia, Paraguay, and Argentina] may contribute to the reestablishment of peace between those countries,” and further, made a proclamation to that effect, then it would be unlawful to sell such arms and munitions. President Roosevelt made such a finding and proclamation, and when the defendant, Curtiss-Wright Corp., violated the president’s arms embargo by selling machine guns to Bolivia, it was indicted. The Supreme Court rejected the defendant’s appeal that, among other things, the indictment was improper because the president’s discretion was “uncontrolled”; that is, unbridled and absolute, and hence, unconstitutional.

The court, in Curtiss-Wright, used language in its opinion that has been eagerly seized upon by war power advocates, but criticized by most constitutional scholars as wrong. In dictum, the court spoke of the “exclusive power of the president as the sole organ of the federal government in the field of international relations,” which these scholars feel suggests that only the executive branch of government, not Congress (legislative branch), has any jurisdiction over foreign affairs. But the court couldn’t possibly have meant that since Article I, § 8, cl. 11 of the Constitution reposes in Congress the exclusive authority to “declare war.” Moreover, even in the Curtiss-Wright case itself, the court spoke of the May 28, 1934, joint resolution of Congress that delegated to the president the discretion to make a finding on whether prohibiting sales of arms and munitions would help promote peace in the Chaco. It seems the key words in the language of the court are “international relations.” And, of course, the executive branch, through the president and the Departments of State and Defense, is the only organ of our federal government that officially represents us in foreign affairs. The president and his secretary of state, for instance, meet at summits with their counterparts from other nations like Russia. American ambassadors to foreign nations are in the executive branch of government, etc.

Indeed, the Curtiss-Wright court borrowed its “sole organ” language from a March 7, 1800, speech in the House of Representatives by member John Marshall—which was before he became chief justice of the Supreme Court the following year—in which he coupled his language “the President is the sole organ of the nation in its external relations” with the words “and its sole representative with foreign nations.” Why some scholars feel that the court’s saying the president is the sole organ of our government in the field of “international relations” is synonymous with saying the Curtiss court held that the president can act unilaterally in making foreign policy (e.g., Louis Fisher, in his book Presidential War Power) is not clear. Even if we make the assumption that this is true, the Curtiss court also said that in the president’s relations with other nations, Congress should accord the president “a degree of discretion and freedom from statutory restriction.” The very word “degree” connotes the absence of absolute, unbridled authority, which proponents of broad presidential war powers would want.

In fact, even if we make the further assumption that the much maligned Curtiss court meant, by its “sole organ” language, that the president had the next thing to absolute discretion in the conduct of foreign affairs, the court, in the same “sole organ” paragraph, went on to clearly circumscribe that discretion, and in a way that would eviscerate any argument by Bush that the Curtiss decision legally authorized whatever his conduct was found to be in taking this nation to war in Iraq. The court said the president’s sole organ power in the field of international relations, “like every other governmental power must be exercised in subordination to the applicable provisions of the Constitution” (United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 307, 311-312, 319-320 [1936]). And Article II, §4 of the Constitution expressly disapproves of the president committing “high crimes and misdemeanors” in the performance of his duties to the extent that, apart from any criminal prosecution, he can be impeached, convicted, and removed from office if he does. Here, with Bush, we’re not just talking about high crimes and misdemeanors, we’re talking about 4,000 murders.⁴⁰

In any event, no court or serious constitutional scholar would ever say that in an American president’s conduct of foreign affairs he has absolute, unqualified discretion and authority to do anything he wants, including committing grave criminal offenses, all in the name of national self-defense. This indisputable verity cannot be challenged, and is why any “war power” defense of Bush would be rejected out of hand by the courts. Indeed, can you even imagine Bush’s lawyer, seeking to quash an indictment for murder against Bush, arguing in front of the U.S. Supreme Court: “Our position is that even if it were proven to be the case that President Bush took this nation to war in Iraq under false pretenses and by lying to the nation, the war power which is inherent in the Constitution is such that he should be immune from criminal prosecution”?

The notion of unbridled and absolute presidential discretion and authority in the name of self-defense is so diametrically in conflict with the antitotalitarian principles upon which this nation was founded that it is rarely even discussed, and when it is, there is the sense that the speaker feels it is almost unworthy of discussion.

In The Prize Cases in 1862, the U.S. Supreme Court spoke out against the idea of a president first deciding himself that the nation is in danger, then asserting “the principle of self-defense,” and then claiming “all power” like a “dictator” to wage war. “To suppose this court would [even] desire argument against such a notion would be offensive,” the court said.

On February 15, 1848, in a letter to a friend, then U.S. House of Representatives member Abraham Lincoln wrote: “Allow the president to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such a purpose—and you allow him to make war at pleasure . . . If, today, he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, ‘I see no probability of the British invading us, but he will say to you ‘be silent, I see it, if you don’t’ . . . This, our [Constitutional] Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing the oppression upon us” (all emphases in the original) (The Collected Works of Abraham Lincoln, 451-452, Roy Basler, ed., vol. 1, Rutgers University Press, New Brunswick, New Jersey, 1953). And Lincoln wasn’t even talking about a president taking this nation to war under false pretenses, just to his taking the nation to war at his whim.

Sixteen years after the Curtiss case, the U.S. Supreme Court dealt with a much more direct case of a president’s war power being exercised to help the United States in an existing war, yet the court, in a six-to-three decision, made it clear that even in this type of situation the president’s executive power was far from unlimited. In April of 1952, President Truman, to avert a scheduled work stoppage about to take place in a few hours because of a nationwide strike of steel workers—a strike he believed would jeopardize the defense of this nation during the existing Korean War—issued an executive order directing the secretary of commerce to seize and operate most of this nation’s steel mills to maintain production. The steel companies argued that the president’s order was not authorized in the Constitution or laws of the United States, and the court agreed. In a concurring opinion, Justice Jackson wrote that the notion of “unlimited executive power” emanating from sources such as Article II, §2, cl. 1 of the Constitution that “the President shall be Commander-in-Chief of the Army and Navy of the United States” was not viable. This constitutional provision, Jackson wrote, “is sometimes advanced as support for any presidential action, internal or external, involving the use of force, the idea being that it vests power to do anything, anywhere, that can be done with an army or navy . . . I cannot foresee all that it might entail if the court should endorse this argument . . . No doctrine that the court could promulgate would seem to me more sinister and alarming . . .” (Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579-580, 641-642, 659 [1952]).

If the U.S. Supreme Court held that the president couldn’t even take over the steel mills during the Korean War under his “war power,” certainly he couldn’t take this nation to war on a lie.

If Bush is prosecuted for murder and he seeks protection for his criminal behavior in the “inherent war power” argument, he will find that the container of legal authority for such a proposition is as empty as a bird’s nest in winter.

93 The U.S. Supreme Court said in Morissette v. United States . . . (342 U.S. 246 [1952]).

93 The mens rea for murder is malice aforethought. Since we don’t know for sure just what Bush’s motive was in taking this nation to war, and since some lay people believe that the prosecution, in a criminal trial, has the burden of proving motive, I want to point out that this is incorrect. Motive is not the same as intent, two terms that are sometimes erroneously used interchangeably by those unfamiliar with the criminal law. In the criminal law, “motive” is the emotional urge that induces someone to commit a crime. It is different from “intent” in that a person can intend to steal property or kill someone and can be found guilty of that theft or homicide irrespective of what his motive was (e.g., need, avarice, revenge, jealousy, etc.). To say it more succinctly, motive is the reason that prompts a person to act (or fail to act). Intent is the state of mind with which the act is done. Motive, of course, may aid you in determining what one’s intent or state of mind was. While intent is an element of every serious crime, and a prosecutor has to prove it beyond a reasonable doubt, motive is never an element of the corpus delicti⁴¹ of any crime. Therefore, the prosecution never has to prove motive. All it has to prove is that the defendant (here, prospectively, Bush) did, in fact, commit the crime with the requisite intent, not why. I’ve put people on death row without knowing for sure what their motive was for the murder. All I knew for sure was that they had put someone in his or her grave and had no legal right (e.g., justifiable homicide) to do it.

93 In this case, the “act” by Bush would be his ordering his military to invade Iraq with American soldiers . . . Even if one were to say that the “act” would be the actual act of an Iraqi killing an American soldier, such as by shooting him, Bush would still be guilty of this act under the vicarious liability and aiding and abetting theories discussed in the text. But in a war situation where thousands have been killed, no court would expect a prosecution of Bush to examine 4,000 separate acts of killing in Iraq. The real criminal act here is Bush’s invading Iraq, an act that is synonymous with the act of killing, since Bush knew the invasion would automatically cause the deaths of American soldiers.

94 . . . that is, the self-defense argument—he reasonably believed that Iraq constituted an imminent threat to the security of this country, so Bush struck first . . . Is there any way that Bush could argue that credibly after the Second World War the charter of the United Nations was ratified on August 8, 1945, as a treaty by the U.S. Senate, and the U.S. Constitution (Article VI, cl. 2) provides that “this Constitution and the Laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”? And that Article 51 of the treaty (UN charter) authorizes unilateral self-defense? Actually, Bush would be worse off making this argument of self-defense than utilizing the traditional law of self-defense, which allows one to use deadly force if in reasonable fear of imminent death or great bodily harm. Article 51 provides that “nothing in the present Charter shall impair the inherent right of individual . . . self-defense if an armed attack occurs against a Member of the United Nations . . .” Under this incorrectly crafted language, a nation could only unilaterally act in self-defense after it was already attacked, which makes no sense at all. Also, by definition, such an attacked nation wouldn’t even have time, under these circumstances, to first get the UN Security Council’s approval to respond in self-defense. And Security Council approval for anything short of what is provided in Article 51 is made clear in Article 51 when it goes on to say that what a member does while acting unilaterally in self-defense “shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

As is clearly shown in the main text, Bush’s conduct neither qualified as self-defense under Article 51, since Iraq never invaded the United States, nor under the traditional law of self-defense, since the evidence is overwhelming that Bush had no reasonable fear of an imminent attack by Hussein or anyone he was aiding and abetting.

In any event, Bush can find no comfort in the treaty-U.S. Constitution- UN argument. All he can find is that in addition to his having violated the murder statutes of America, he violated international law when he invaded Iraq. Article 2 (4) of the UN charter expressly provides that “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state . . .” Only a UN Security Council resolution could have authorized such an invasion.⁴² Bush, of course, knew this, and this is why he sought such a resolution (the so-called second resolution, since the UN Security Council, in its first resolution, authorized Bush’s father to use force against Iraq in the 1991 Gulf War, but only to achieve the limited objective of removing Hussein’s forces from Kuwait, not to invade Iraq itself or remove Hussein from power). And we all know that the UN Security Council refused to make such a resolution; that is, refused to authorize Bush’s invasion of Iraq. Indeed, on March 17, 2003, two days before the war, UN secretary-general Kofi Annan said that any attack by the United States on Iraq without a further resolution would be a violation of the UN charter. Despite this, Bush, in a rogue fashion, invaded Iraq anyway.

Bush apologists can be expected to argue that UN Resolution 1441, made in November of 2002, sought to “ensure full and immediate compliance” by Iraq with UN Resolution 687 (made in April of 1991 after the Persian Gulf War), which required Iraq to “unconditionally accept the destruction, removal or rendering harmless under international supervision of all chemical and biological weapons.” Resolution 1441 said that if Iraq did not comply with its “disarmament obligations,” it would face “serious consequences.” What those serious consequences were was not set forth in 1441. In any event, since this was a UN resolution, even if the consequences included an invasion and war, the invasion would have to be by a coalition of UN forces operating with UN Security Council approval, which is not what occurred.

Bush defenders would sound terribly foolish arguing that the legal justification for Bush’s war lies in Iraq’s failure to comply with UN Resolutions 687 and 1441. In other words, they would be relying completely on the UN resolutions that Iraq disarm, but at the same time presuming that it wasn’t necessary to get UN approval for a war based on a violation of the UN’s own resolutions—that the United States, not the UN, should decide how to deal with a violation of UN resolutions.⁴³ That argument is legally embarrassing.

By way of footnote, it also isn’t a legal defense for Bush to argue: “Well, the U.S. bombed the Kosovo province of Yugoslavia in 1999 without UN approval, only that of NATO.” That would be like a driver of a car saying to a police officer about to give him a speeding ticket: “Why are you giving me one when cars on my left and right were traveling just as fast as I?” So, maybe the U.S. (in the Clinton administration) was also in violation of Article 2. But by the way, there is no evidence that President Clinton and his people engaged in lies, deliberate distortions, and hence, criminality leading up to our bombing of Kosovo to stop the genocide of the ethnic Albanians by the Serbs there. Indeed, even if Clinton had lied to the American people in the Kosovo intervention, since not one American soldier lost his life, this would, by definition, preclude any murder prosecution of Clinton.

95 There are cases where a period of time as short as several seconds sufficed. (For example, People v. Wells, 10 C. 2d 610, 625 [1938]).

95 Even a killing where there was only implied malice and no specific intent to kill can not only result in a conviction of murder (which it could in any state), but a sentence of death . . . It shouldn’t be assumed that since Bush never intended to kill any of the specific American soldiers who died in his war that no express malice could be shown against him. To be guilty of murder it is not necessary that you intend to kill a specific identifiable person, which is the usual situation. Defendants have been convicted of murder, even sentenced to death, for shooting into a house or car or train or room and killing someone even though they did not know who was inside, and did not intend to kill any specific person. So a specific intent to kill the actual victim need not be shown to constitute murder. Therefore, the fact that Bush did not specifically intend to kill a particular soldier or soldiers would not, by itself, be a defense to murder.

96 “. . . it follows that if one willfully does an act, the natural tendency of which is to destroy another’s life, the irresistible conclusion . . . is that the destruction of such other person’s life was intended.”(People v. Coolidge, 26 Ill. 2d 533, 537 [1963]; see also, People v. Fitzgerald, 524 NE 2d 1190, 1193 [1988].

97 The main underlying felonies that are usually mentioned in statutes throughout the land . . . (For example, §189 of the California Penal Code; Title 18 of the United States Code, §1111.)

98 In the 1983 case of United States v. Shaw, the premeditation was in the form of “lying in wait,” . . . (701 F. 2d 367, 374-376, 392-394 [1983]).

98 . . . the defendant thereby doing an act exceedingly dangerous with reckless and wanton disregard for the consequences, though no specific intent to kill was shown. The conviction of first degree murder in the Shaw case was affirmed on appeal and the U.S. Supreme Court denied certiorari; that is, denied the defendant’s attempt to have the highest court review the case.

99 Ironically, the case relied on in the federal courts for the best definition of implied malice in a second degree murder prosecution is United States of America v. Bush . . . (416 F. 2d 823, 826 [1969]).

101 One of the strongest pieces of evidence that Bush lied to Congress and the American people about Hussein being an imminent threat to the security of this country so he could get their support for the war . . . Conservatives, in response to this book, can be expected to counter that the so-called Gulf of Tonkin incident in August of 1964 was staged by the administration of President Johnson and used by LBJ to get Congress’s and the nation’s support for the Gulf of Tonkin Resolution, enabling LBJ to take America to the war he wanted with Vietnam. But there is no merit to this argument and no comparison between Bush’s and LBJ’s conduct.

With respect to the Gulf of Tonkin incident, briefly, at 3:40 a.m. (EST) on August 2, 1964, a U.S. destroyer, the USS Maddox, on reconnaissance patrol in the Gulf of Tonkin (an arm of the South China sea off North Vietnam), was fired on by three North Vietnamese torpedo boats, though none of the torpedoes struck the Maddox. Aircraft from the nearby U.S. aircraft carrier Ticonderoga destroyed one of the three torpedo boats and damaged the other two. The Maddox and Ticonderoga were in international waters about 28 nautical miles (31.2 statute miles) off the North Vietnam coast conducting covert operations at the time. This attack on the Maddox is not in dispute and North Vietnam never denied the attack, although in 1997, General Nguyen Dinh Uoc, the director of the Institute of Military History in Hanoi, said that the assault was instituted by a local North Vietnamese commander, not the North Vietnamese government. In any event, it was an unprovoked attack, but the Johnson administration did nothing to retaliate beyond the actions of the aircraft from the Ticonderoga. So at least up to this point no one could possibly claim that the Gulf of Tonkin incident reflected any desire by LBJ to go to war.

Where the “LBJ wanted to go to war” proponents make their argument is with a second alleged attack, again by three torpedo boats, on the Maddox in the late morning of August 4, 1964. One has to say “alleged” because such an attack was never confirmed to anyone’s complete satisfaction. Indeed, later, at 1:25 p.m. that day, Captain John J. Herrick, commander of the two destroyer patrol of the Maddox and the C. Turner Joy, cabled Honolulu (headquarters of the Pacific Fleet) and Washington: “Review of action makes many recorded contacts and torpedoes fired appear doubtful. Freak weather effects and over-eager sonarman may have accounted for many reports. No actual sightings by Maddox. Suggest complete evaluation before any further action.” Pursuant to this, Secretary of Defense Robert McNamara telephoned Admiral Ulysses S. Grant Sharp, the commander-in-chief, Pacific Fleet, in Hawaii and told him they had to “be damned sure that no retaliatory action was taken until any doubts as to what went on were eliminated.” At 2:48 p.m., Herrrick sent another and different message which now stated, “Certain that original ambush was bonafide.”⁴⁴ Sharp continued to investigate and at 5:23 p.m. called Air Force lieutenant general David A. Burchinal of the Joint Chiefs of Staff and stated he had no doubt that a second attack on the Maddox had, indeed, taken place.

On LBJ’s authorization, at 10:43 p.m., U.S. aircraft from the Ticonderoga and Constellation started flying sixty-four sorties against North Vietnamese patrol boat bases and a nearby oil complex supporting the boats. It was the first U.S. bombing of North Vietnam in what was to become the Vietnam War. It was estimated that twenty-five patrol boats were damaged or destroyed and 90 percent of the oil complex was destroyed. At 11:36 p.m., President Johnson told the nation, in a televised address from the White House, of the North Vietnamese attack and our retaliation, saying, “We seek no wider war.”

On August 7, just a few days after the above incidents, Congress passed the Gulf of Tonkin Resolution sought by the Johnson administration by an overwhelming vote of 88-2 in the Senate and 416-0 in the House of Representatives. The resolution authorized the president “to take all necessary steps, including the use of armed force, to assist any member” of SEATO (Southeast Asia Treaty Organization, which included South Vietnam) “in defense of its freedom.” In other words, Congress gave President Johnson the authority to go to war in Vietnam if he so chose.

Many have alleged, almost from the very beginning, that the whole Gulf of Tonkin incident was a pretext for war provoked or staged by the Johnson administration to help him during his campaign for reelection against Senator Barry Goldwater. The corollary argument, shorn of its political allegation, has also been made that the incident was provoked or staged, as indicated, to enable Johnson to get a congressional resolution authorizing war. But William P. Bundy, assistant secretary of state for Far Eastern affairs, told the Senate Foreign Relations Committee on September 20, 1966, that he was in the process of drafting a similar resolution for the Johnson administration before the Gulf of Tonkin incident occurred, explaining this was routine and normal contingency planning to prepare for the reality that “things might take a more drastic turn” for the worse in Vietnam. One of those who began to strongly suggest the pretext argument was Senator J. William Fulbright, who had helped gather support for the passage of the Tonkin Resolution but later came to believe he had been misled by the Johnson administration. And a February 1968 Senate Foreign Relations Committee hearing that reexamined the evidence was unable to categorically resolve precisely what happened.

But in addition to the very important fact that no credible evidence has surfaced in almost forty-five years that the Gulf of Tonkin incident was provoked or staged, there is one reality that I believe clearly demonstrates everything was on the up-and-up, at least as far as Johnson and his advisers were concerned. And that comes from the book Taking Charge, edited with commentary by presidential historian Michael Beschloss, which was published in 1997 and contains transcripts of taped telephone conversations between LBJ and his advisers, primarily Secretary of Defense Robert McNamara, during the Tonkin incident. As the transcripts reflect, from the moment LBJ first discusses the incident all the way through his working out how to resolve it, he clearly is dealing with new information and an evolving situation not of his making. One example is August 4, 1964, 11:06 a.m. (around the time of the alleged second attack):

MCNAMARA: Mr. President, we just had word by telephone from Admiral Sharp that the destroyer is under torpedo attack.

LBJ: [almost inaudible sound]

MCNAMARA: I think I might get Dean Rusk and Mac Bundy and have them come over here and we’ll go over these retaliatory actions and then we ought to—

LBJ : I sure think you ought to agree to that. Yeah . . . Now where are these torpedoes coming from?

MCNAMARA: We don’t know. Presumably from these unidentified craft that I mentioned to you a moment ago. We thought that the unidentified craft might include one PT boat, which has torpedo capability, and two Savatow boats, which we don’t credit with torpedo capability, although they may have it.

LBJ : What are these planes of ours doing around while they’re being attacked?

MCNAMARA: Presumably the planes are attacking the ships. We don’t have any word from Sharp on that. The planes would be in the area at the present time. All eight of them.

LBJ : Okay, you get them over there and then you come over here.

Are we to believe that LBJ and McNamara (who, if the Tonkin incident were not legitimate, would have had to be the main architects of the charade, as indeed some claim them to be) not only manufactured the whole incident, but when they thereafter discussed it on the phone with each other were following a fabricated script, right down to the interruptions and ungrammatical utterances? Though one would have to say that this was theoretically possible, how many people would actually believe this, particularly in view of the context—the clear weight of the evidence showing that Johnson was searching for a way to avoid war, not precipitate it?

By way of footnote on this issue, in November of 1995, McNamara, on a visit to Hanoi, spoke to General Vo Nguyen Giap. Giap was the North Vietnamese vice premier for defense during the Gulf of Tonkin period, and McNamara reported that Giap had convinced him that no second attack on the Maddox had ever happened. “I am absolutely positive,” McNamara said, that the second attack never took place. (Giap did confirm to McNamara that a Vietnamese ship did carry out the first attack on the USS Maddox.) If McNamara had been a part of a deliberately provoked or staged Gulf of Tonkin incident (which again, if the incident were provoked or staged, he would have had to be), he hardly would have made any concession suggesting that the Tonkin incident never happened.

If the Gulf of Tonkin incident that led to the resolution had been provoked or staged by the Johnson administration to get the resolution, it would seem that with the nation and the whole of Congress behind Johnson, that would have been the opportune time, politically, for him to have sent combat troops to Vietnam. But as we know, it wasn’t until March 8, 1965, seven months after the resolution, that LBJ finally sent U.S. combat troops to Vietnam, and July 27, 1965, that he decided to embark on a major ground war in Vietnam. A few hours of sorties against the North Vietnamese patrol boats and their supporting oil complex was the only and very limited extent of LBJ’s response to the Tonkin incident at the time it allegedly occurred. So no comparison can be made at all to LBJ’s conduct regarding the Gulf of Tonkin incident and Bush’s egregiously criminal conduct in taking America to war in Iraq on a lie.

Bush apologists, always denying all malfeasance on Bush’s part, like to say that even if what the Democrats claim about Bush were true, President Franklin Delano Roosevelt was even worse during Pearl Harbor, yet Democrats have no desire to attack him for this. As with Johnson, there is no parallel between Bush’s conduct vis-à-vis Roosevelt’s in the Second World War. Though some have claimed that Roosevelt knew the attack on Pearl Harbor was coming and did nothing about it because he wanted to go to war with Japan, most historians do not believe this. No one has ever accused Roosevelt of being an evil person, and if he knew the attack was coming, he’d have had to be evil to not alert the navy that an attack was expected. With an alert, the sailors could have left their ships and the battleships would have been separated, instead of their being lined up next to each other, as they were, enabling the greatest harm to be done. In other words, if Roosevelt wanted the Japanese to attack Pearl Harbor to justify going to war, he could have still had the same justification for war because of the Japanese attack without knowingly sacrificing the twenty-four hundred American lives that were lost. Again, no one has ever suggested Roosevelt was an evil man, and there’s simply no way to compare Roosevelt’s conduct to what Bush did in Iraq.

But here’s the clincher with respect to Johnson and Roosevelt. If, in fact, they did do what many Bush supporters and conservatives say they did, then they should have been prosecuted for murder, too. And if they had, the punkish college cheerleader from Crawford, Texas, may have thought twice before lying to the nation to take us to war in Iraq.

105 Bush framed the threat as being imminent when he said this could happen “on any given day.” Bush added that if Hussein could acquire the necessary components (which Bush said Hussein was actively seeking to do), Iraq “could have a nuclear weapon in less than a year.” But Bush was lying to the American people. His own CIA’s 2002 National Intelligence Estimate report, published on October 1, 2002, six days before Bush’s speech, said, “If left unchecked, it [Iraq] probably will have a nuclear weapon during this decade.” But obviously, Iraq was not being “left unchecked.” It was swarming with United Nations inspectors. And on September 24, 2002, just two weeks before Bush’s speech, British intelligence released a report saying that Iraq “would not be able to produce a nuclear weapon” while UN inspections continued in Iraq, and added that even without UN inspections and sanctions, Iraq would need “at least five years” to build a nuclear bomb. Of course, Bush and his people knew that while millions of Americans would hear the lie in his televised speech, none would read the classified NIE report, and few would read published excerpts from the British report. There oughta be a law against presidents telling bald-faced lies to the American people like this.

109 Democratic senator Tom Daschle, the senate majority leader, said, “Bush was telling me that Iraq had WMD and we had to move.” Writing about Democratic senator John Edwards saying at the time, “Saddam Hussein’s regime represents a grave threat to America and our allies,” the Los Angeles Times’s Jacob Heilbrunn wrote that in television interviews of Edwards it was very clear that he was completely unaware what the true situation was, being politically opportunistic in saying what he did, and intellectually slovenly in making no effort to research the accuracy of what he was saying. “Like most of his colleagues on the [Senate intelligence] committee,” Heilbrunn wrote, “Edwards acquiesced easily to the administration’s bogus claims about Iraqi weapons.”

111 It is inconceivable that without the intercession of Rice or some other Bush administration representative, the CIA would decide, on its own . . . That the Bush administration contacted the CIA on this and asked for the lie that was the White Paper cannot be seriously questioned. Enterprising reporters Michael Isikoff and David Corn, coauthors of the well-researched book, Hubris, the Inside Story of Spin, Scandal, and the Selling of the Iraq War, found and interviewed the CIA intelligence officer who was in charge of preparing the White Paper, Paul Pillar. Although he didn’t say (if he even knew) precisely who was behind the decision to mislead Congress and the American people by way of the White Paper, the authors write: “Pillar was embarrassed by the White Paper. ‘In retrospect, we shouldn’t have done that White Paper at all,’ he said . . . He wished he had mustered the courage to tell the CIA leadership and the White House [obviously, the White House would have had to first tell the CIA what it wanted—no one would believe the CIA contacted the White House and asked permission to prepare a fraudulent document, and one that contradicted the classified NIE report it had just issued three days earlier] that he wouldn’t put out such a document. ‘One of the biggest regrets of my career is, I didn’t find a way to say no,’ he said. ‘If I had to do it all over again, I would say, hell no, I’m not going to do that.’”

Senator Graham, a good man who wisely and, with political courage, voted against giving Bush authority to go to war, has a different view about the provenance of the White Paper which, in all deference to him, seems lacking in logic. He believes the White paper was not a “tinkered with” version of the classified NIE report, but a report on Iraq’s weapons of mass destruction the CIA had already prepared, per a White House request, for the Bush administration “in the early summer of 2002” (May) that “the White House had put on the shelf” and not released. Graham believes that when he made his request on October 1, 2002, for a declassified version of the classified NIE report, “the White House and CIA took the report off the shelf” and sent it to his committee. But Isikoff and Corn wrote that “Pillar was told to redo” the old CIA report “and to keep it in sync with the [new, classified] NIE.”

Assuming, however, that Pillar’s credibility is not the best (given his knowing participation in the formulation of the White Paper, a document that was meant to mislead Congress and the American people), I don’t believe Graham’s reasons for his belief are sound. One reason he gives is that he doesn’t see how the CIA could come out with a new version of the NIE report in only three days. But all that had to be done is delete blocks of pages, the qualifying words (e.g., “We assess that”), and the dissents, which takes very little time. Graham also argues that if the White Paper was a new version of the classified NIE, it would be expected to have “redactions” (words blacked out) in it. But the Bush administration (who Graham himself concedes was pushing for war) would never in a million years present a document to the American public replete with blacked-out words. That would only serve to create a suspicion in the minds of millions of Americans that the administration was concealing important information from them that they had a right to know. So redactions were not an option. Graham’s own words that the new document he was given was “propaganda” and a “cry for war” defeat his redaction argument, since redactions would have been completely counterproductive.

But there is an even stronger reason why Senator Graham’s belief is, respectfully, almost assuredly wrong. I asked him: “Senator Graham, since we know the Bush administration wanted war, and they were doing everything possible to convince the public that Hussein had weapons of mass destruction he could use against us, why would they keep this CIA document [the White Paper], a document they would have every reason to believe would help them make a case for war, on the shelf and not show it to the American public? Why would they wait for you to request, just ten days before the vote in Congress on the war resolution, an unclassified version of the NIE report—which they would have had no way of knowing you would even do—before they released the White Paper to the public?” Graham could only say that if he hadn’t made his request, “they would have found some other way to release it to the public.” “Why would they have to ‘find’ some other way?” I said. “They’d simply automatically release this CIA document that supported their case for war.”

Senator Graham’s belief, which he acknowledges he has no proof of, is at best speculation. But it is not speculation that if the White House had a CIA document that supported their rush to war, they would not have suppressed it from the American public. We don’t know what the May 2000 CIA report said. It may have been weak. But we do know what the October 4, 2002, White Paper said, and it was not weak.

It should be added that the Senate Intelligence Committee report in 2004 does not agree with Senator Graham’s interpretation of events. The committee’s report said, “The intelligence community’s elimination of the caveats from the unclassified White Paper misrepresented their judgments to the public, which did not have access to the classified National Intelligence Estimate containing the more carefully worded assessments.” Though not dispositive of the issue, the CIA, with a full opportunity to say the unclassified White Paper was an earlier document, didn’t do so. A Senate Intelligence Committee aide told the media (Los Angeles Times, July 10, 2004) that when the committee asked CIA director Tenet and Stu Cohen (the acting chairman of the National Intelligence Council, which oversaw production of the classified NIE), who was responsible for inserting the words “potentially against the U.S. homeland” into the White Paper, both (without correcting the questioner by saying the words were not inserted, they were already there) claimed they did not know. Moreover, I later read Graham’s article in the St. Petersburg Times on June 17, 2007, in which he set forth the chronology of events mentioned above. In this article he did seem to suggest that the White Paper was a document that had been previously prepared by the CIA. Indeed, though he did not expressly say so, he implied that the classified NIE had been “doctored” to produce the White Paper. In referring to the White Paper, he wrote: “Gone was the debate over the aluminum tubes and any other dissents or reservations. Gone was the unanimous conclusion that Saddam would only use weapons of mass destruction if Iraq were first attacked. That was the last straw. The Bush administration was clearly scheming to manipulate [public] opinion in favor of war.”

It has to be noted that even if the position that former senator Graham is now taking (that the White Paper had already been prepared) is correct, which it is possible it is, what we do know for sure is that the Bush administration and CIA gave Graham and his Senate Intelligence Committee a document (White Paper) on October 4 that did not contain what he asked for—the dissents and qualifications in the classified NIE report, and the conclusion of the NIE that Hussein was not an imminent threat to the security of this country. In Graham’s St. Petersburg Times article, he wrote: “I was livid” about this. He told me that because of this omission, that very same day, October 4, he wrote to Tenet demanding that he send Graham a letter resolving the ambiguity between the October 1 and 4 documents by clearly setting forth the CIA’s belief that Hussein was not an imminent threat. After several requests, Tenet finally did this on October 7 by the letter his deputy, John McLaughlin, signed on his behalf. (See main text.)

112 “We judge that Iraq has continued its weapons of mass destruction (WMD) programs in defiance of UN resolutions . . .” We know in hindsight that this was 100 percent wrong. But even at the time, the CIA had no evidence except from discredited informants like “Curveball” (see discussion in main text) that Hussein had continued his WMD programs. Indeed, the last U.S. intelligence assessment was that of the Defense Intelligence Agency in September 2002 that “there is no reliable information on whether Iraq is producing and stockpiling chemical weapons.”

114 . . . they believed the tubes were “not intended” for and “not part of” any alleged Iraqi nuclear program. The State Department said that “the very large quantities [of the tubes] being sought, the way the tubes were tested by the Iraqis, and the atypical lack of attention to operational security in the procurement efforts [which would be in serious violation of UN resolutions] are among the factors” that led it to its conclusion. An earlier, August 17, 2001, Department of Energy report concluded that the tubes were more likely purchased for “rocket production,” not nuclear weapons. In his statement to the UN Security Council on March 7, 2003, Mohammed ElBaradei, the chief nuclear inspector in Iraq who was the director general of the International Atomic Energy Agency, said his agency had come to the same conclusion.

118 (. . . whom the Bush administration at one time was grooming to replace Hussein when he fell, and whose “information” was sometimes flat-out fabricated.) The Senate Select Committee on Intelligence report in September of 2006 said that the Iraqi National Congress (INC) “attempted to influence United States policy on Iraq by providing false information through defectors directed at convincing the United States that Iraq possessed weapons of mass destruction and had links to terrorists.” Despite repeatedly being warned by U.S. intelligence agencies that Chalabi and his group were unreliable, the Bush administration continued to use INC information to help build its case for war.

The determination of Bush and his aspiring oligarchs to twist reality in a way to support the march to war was such that, in January of 2002, Deputy Defense Secretary Paul Wolfowitz actually directed the under secretary of Defense for Policy, Douglas Feith, to set up an operation within his office that would serve as a de facto intelligence unit, independent of the CIA and other U.S. intelligence agencies, to prove an Iraq-Al Qaeda relationship. The fact that this new operation, a small unit that came to be known as the “Iraqi intelligence cell,” was beyond the legislative scope of Feith’s office, and intelligence analysis was being made by people like Feith, a neoconservative ideologue, who had no intelligence training at all, was apparently irrelevant to Wolfowitz. What Wolfowitz (and Bush, Cheney, Rice, etc.) was getting was a literally rogue gang of war hawks who—as opposed to agencies like the CIA and the Defense Department’s own Defense Intelligence Agency whose conclusions were sometimes not quite strong enough for an administration hell-bent on war—could always be counted upon to manipulate the evidence in a light most supportive of an invasion of Iraq.

A February 9, 2007, report of the inspector general of the Department of Defense (“Review of the Pre-Iraqi War Activities of the Office of the Under Secretary of Defense for Policy”) said that Feith’s office “expanded its role and mission from formulating defense policy to analyzing and disseminating alternative intelligence,” which was “inappropriate,” and that the group furnished the Bush administration with “some conclusions that were inconsistent with the consensus of the Intelligence Community” (e.g., that Mohamed Atta, the head hijacker on 9/11, had met with an Iraqi intelligence official on April 9, 2001, in Prague).

So although there were already sixteen authorized federal U.S. intelligence agencies, led by the CIA, to evaluate and disseminate intelligence relative to the issues of whether Iraq was involved with Al Qaeda in 9/11 and whether Iraq constituted an imminent threat to the security of this country justifying our invading Iraq, these sixteen intelligence agencies just weren’t quite enough for Bush and his criminal gang. They wanted their own bought-and-paid-for intelligence unit.

121 . . . the CIA itself never even personally interviewed Curveball, a Baghdad-born chemical engineer who sought political asylum in Germany . . . The Los Angeles Times on November 20, 2005, reported that the CIA did attempt to interrogate Curveball, but the BND (German intelligence service) declined to let them do it. Noting the “rocky” relationship between the BND and CIA since the Cold War, during which the BND thought the CIA treated it like a second-class citizen, the Times article said, “Spy services jealously guard their sources, and the BND was not obligated to share access to Curveball. ‘We would never let them see one of ours,’ said a former CIA operations officer.”

123 “CIA officials,” the Times wrote, “now concede that the Iraqi [Curveball] fused fact, . . . into a nightmarish fantasy that played on U.S. fears after the September 11 attacks.” Curveball’s motive, CIA officials said, was not to start a war. He simply was seeking a German visa. Or was his reason much more sinister? In James Bamford’s 2004 book, A Pretext for War, he writes that it was later discovered that Curveball was the brother of a top aide to Ahmed Chalabi, the Iraqi exile leader who was a bitter enemy of Hussein and headed the Iraqi National Congress, the group established to find a way to remove Hussein from power. Throughout this entire period, Chalabi had been the favorite of the Bush administration to replace Hussein as Iraq’s leader, and they were priming him for this position before he became radioactive with U.S. intelligence because of his corruption and the demonstrably false information about Hussein he was providing. In fact, the New York Times’s Judith Miller, who by her reportage on Hussein in the lead-up to war clearly was a supporter of the invasion, acknowledged in a 2003 e-mail to the New York Times Baghdad office that Chalabi had provided her with “most of the front page exclusives on [Iraq’s] WMD [what weapons of mass destruction?] to our paper.”

130 The UN inspectors were making substantial progress and Hussein was giving them unlimited access. Although Hussein was giving UN inspectors unlimited access, his compliance was not complete, which apparently was intentional on his part. The documentation he submitted on December 7, 2002, in a 12,200-page declaration to the United Nations Security Council covering what illicit weapons he had once possessed, and how and when he had disposed of them, had gaps. And Hussein would not allow his weapons scientists to leave the country, where UN officials could interview them without their feeling the pressure of still living under Hussein’s rule. This caused a great many thinking people to say that if Hussein did not have any weapons of mass destruction, why did he keep acting like he did? They therefore concluded he did, indeed, have WMD.

The question of why Hussein acted guilty by holding back a little has been explained by the American military in an effort overseen by the Joint Forces Command whose 2005 report was titled “Iraqi Perspectives on Operation Iraqi Freedom, Major Combat Operations.” Based on interviews with over 110 former Iraqi officials and military officers, some conducted after sumptuous dinners and wine to open up their vocal chords, U.S. military intelligence concluded that although Hussein wanted to give United Nations inspectors total access to Iraq, and eventually did, he also wanted to create some ambiguity about whether he, in fact, still possessed unconventional weapons, a technique one of his former generals, General Hamdani, called “deterrence by doubt.” Why? Not, as everyone would assume, because Hussein wanted to deter the United States from invading Iraq. Hussein, military intelligence found, never thought America would invade Iraq, and this was not an irrational thought on his part. After all, Bush’s father hadn’t. Hussein believed that Bush would only heavily bomb Iraq, but wouldn’t be willing to actually put soldiers on the ground and risk many casualties. (He had also seen what we had just done in Afghanistan. Before the fall of the Taliban, the Northern Alliance fought the real war there. Our “invasion” of Afghanistan was almost exclusively by air. See main text.)

No. It wasn’t America he feared and was seeking to deter, but Iran, Iraq’s neighbor to the east with whom Iraq had not too long ago fought an eight-year war (1980-1988) with hundreds of thousands of casualties. Hussein had the same fear of Iran that the Bush administration said it had—that Iran might be close to having nuclear weapons—and every year the Iraqi military conducted a military exercise called “Golden Falcon” that dealt with the defense of the Iraqi-Iran border. The U.S. military report said that Hussein also wanted to preserve an element of ambiguity to deter the Shiites in Iraq from rising up against him after the American bombing, as they did at the conclusion of the Persian Gulf War. So, in a classic irony, Hussein ended up hiding the fact he had no WMD.

An earlier CIA report from the CIA’s Iraq Survey Group (called the “Duelfer Report” after Charles A. Duelfer, the head of the group and, following David Kay, the CIA’s chief weapons-hunting sleuth in Iraq) was released on October 6, 2004, and reached the same conclusion. Indeed, the report pointed out, this strategy of bluffing was one that Hussein himself had acknowledged to his FBI interrogators while in custody after his capture on December 13, 2003. “The Iranian threat,” Duelfer told members of the Senate Armed Services Committee on October 6, “was very, very palpable to him, and . . . he felt he had to deter them. So he wanted to create the impression” that he had weapons of mass destruction, weapons, Duelfer’s report said, that were “essentially destroyed” by Hussein after the Persian Gulf War in 1991 and never rebuilt. The 960-page report, based on fifteen months of work and interviews in Iraq, also concluded that Hussein ended his program to build a nuclear weapon in 1991 and never tried to restart it. However, according to the report, former Iraqi officials said they “heard [Hussein] say” or they “inferred” that Hussein “intended to resume” developing his chemical and nuclear weapon (but not biological weapon) capabilities once the UN sanctions were lifted. He felt such weapons were a sign of strength, and any country with the ability to develop them had an intrinsic right to do so, adding that it was chemical weapons that had saved his regime against Iran’s human-wave attacks on Iraq during their 1980-1988 war.

Very interestingly, the report, which concluded that Hussein never felt the United States would actually invade Iraq, said that Hussein believed (quite rationally) that his country was a natural friend and ally of the United States against a mutual enemy, Iran. He also believed, before the war, that the United States would eventually decide it was clearly in its interest to align itself with his country against Iran (as the United States did before, during Iraq’s war with Iran), particularly since Iraq was secular and had enormous oil resources. Hussein said he believed he could become America’s “best friend in the region, bar none,” and he could have been if the small man from Crawford wanted peace, not war.

131 He said that since Hussein, in a letter to Blix, had invited UN weapons instructors back into his country in late November of 2002 . . . The inspection staff numbered over 250 from 60 countries, including 100 UNMOVIC (United Nations Monitoring, Verification and Inspection Commission) inspectors and 50 from the International Atomic Energy Agency.

137 It may be made either expressly, or by implication. (People v. Mace, 71 C.A. 10, 21 [1925]).

140 Note that Bush knew he couldn’t ever say straight out that Hussein was involved in 9/11 . . . Although Bush never flat-out declared to the American people that Hussein was involved in 9/11, in a jumble of words he did do this in a letter from him to the speaker of the House of Representatives and the president pro tempore of the Senate on March 18, 2003, the day before he invaded Iraq. Bush said that “consistent with section 3(b) of the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243), I determine that . . . acting pursuant to the Constitution and Public Law 107-243 is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”

147 The report also said the committee learned that at one point before the war Hussein was warned by his intelligence chief “that U.S. intelligence was attempting to fabricate connections . . . Perhaps the most fascinating entry in the 356-page Senate report is their reference to a CIA report that said Hussein was surprised by the aggressiveness of UN weapons inspectors in Iraq following the Gulf War and ordered not only the secret destruction of undeclared weapons, but all records and documents pertaining to them. In the process, Hussein destroyed the very records UN inspectors sought before the Iraq War to account for what happened to certain illicit weapons of his. The Senate report, citing the CIA analysis, said, “The result was that Iraq was unable to provide proof when it tried at a later time to establish compliance” with UN resolutions.

This analysis, of course, is not conclusive, particularly since it conflicts with an earlier U.S. military intelligence report and a CIA report (see previous note) that Hussein wasn’t accounting to UN inspectors for all of the weapons he had destroyed because he wanted to create the impression—in order to ward off an attack by the enemy he really feared, Iran—that he still had the illicit weapons.

148 . . . an astonishing 64 percent of Americans believed that Hussein had had a strong connection with Al Qaeda prior to 9/11. One of the documents seized from the Iraqi government by U.S. forces after the invasion is dated August 17, 2002. The internal document, from Iraq’s intelligence service to its agents, says that an informant had said that two members of Al Qaeda were presently somewhere in Iraq. The agents are told they should “search the tourist sites [hotels, residential apartments and rental houses]” for them. Some relationship between Iraq and Al Qaeda.

148 It couldn’t be any clearer that although Bush may have believed (like nearly all Americans did) that Hussein had at least some WMD . . . I say “may have” believed because it is possible that Bush already knew there were no weapons of mass destruction in Iraq. Certainly, his and Blair’s belief, as set forth in the Manning memo (see main text), that no WMD would ever be found in Iraq goes in that direction, although not finding them and none being present to find are two different things. But in addition to Hussein’s not cooperating completely with UN inspectors for a period of time, which suggested he had WMD, there is something else that arguably militates against the conclusion that Bush actually knew there were no WMD in Iraq. Bush is intelligent enough to know (even if he is not, more intelligent people around him would inform him) that if he were lying about Hussein having WMD, postwar inspections (as was the case) would undoubtedly be conducted and show that no WMD were present in Iraq.

However, this realization by Bush would not necessarily deter him from telling his grand lie. This is so because such a finding would not foreclose his administration’s arguing (as it in fact did when no WMD were found in Iraq) that Hussein did have WMD throughout the period Bush said he did, and either destroyed all of them just before the war, or moved them to another country. Moreover, whatever Bush’s crime was in taking the nation to war on such a lie, he probably felt extremely confident that there would be no consequences for him to pay. And after all, not only hasn’t he been impeached for taking this nation to war on a lie, he hasn’t even been investigated.

152 As indicated, Bush’s expected main defense to the murder charge would be that he acted in self-defense. Technically, it might be argued that Bush was not acting in self-defense, which implies he was only trying to defend himself, but that he was acting in defense of America. In this case, Bush’s defense would be termed “defense of others.” In this well-recognized legal defense, “others” typically, as under California law, are “a wife or husband, parent, child, master, mistress or servant.” In this case of first impression, I have no doubt that a court would extend this list to the people of America whom Bush had an obligation to protect, thereby allowing Bush to utilize this defense. In any event, in “defense of others,” the same conditions would have to be shown as with self-defense—that Bush had reasonable grounds for believing that the citizens of American were in imminent danger of death or great bodily harm from Saddam Hussein, and it was pursuant to this fear that he conducted his preemptive strike by invading Iraq.

152 The burden of proof in a criminal trial always remains with the prosecution, and therefore, Bush’s prosecutor would have the burden of proving that Bush did not act in self-defense. The legal justification of self-defense requires not only that the defendant himself believed that he was in imminent danger of death or great bodily harm, but that the conduct of the other party was such that it would have produced that fear in a reasonable person. To meet the requirement of imminence for an individual (as opposed to a country), it must be shown that to the defendant the peril appeared to exist at the very time he used deadly force on the other party. As an appellate court said, “In other words, the peril must appear to be immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.”

Obviously, what would be imminent for a private person would not apply to a nation. Indeed, since there is no legal precedent, it is not certain that a court would retain the “imminent” term with respect to a nation, perhaps substituting words like “soon” or “clear and present danger” for it. (However, the U.S. Supreme Court, speaking theoretically in a 1952 case, spoke about an American president’s constitutional power to defend the nation if it were “imminently threatened with total war. (Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 659). In fact, the U.S. Constitution itself, in prohibiting states from engaging in war without the consent of Congress, says that an exception is where the state is in “imminent danger” of an attack (Article 1, §10, cl. 3). In any event, we can be confident that the judge presiding over the prosecution of Bush would require the prosecutor to prove either that Bush himself did not believe that Hussein was about to attack America imminently or soon, or that a reasonable leader of America would not have believed it. If he proved either proposition beyond a reasonable doubt, Bush’s defense of self-defense would fall. In other words, only going after real enemies who were poised to attack soon would justify what Bush did. Going after hypothetical enemies would not.

As to what would constitute “imminent” or “soon” with nations, it would be impossible to quantify this into specific minutes, hours, days, weeks, or months. It would be like trying to measure the immeasurable with a rubber ruler. But just as a U.S. Supreme Court justice said that “I can’t define obscenity, but I know it when I see it,” any reasonable leader of a nation would know, in the context of varying situations, what would qualify as “imminent” or “soon.” And it is virtually impossible to believe that any reasonable leader of America would have thought that Hussein intended to attack America imminently or soon. The killer for Bush is that the prosecutor would have a ton of evidence to show that irrespective of the reasonable man test, Bush himself did not believe that Hussein was about to attack the United States.

152 Although self-defense would be the heart of Bush’s defense . . . There is another defense to the charge of murder that Bush could possibly raise, the defense of necessity, also known as the “choice of evils” or “lesser evil” defense. But in doing so, Bush would be jumping from the fire into the furnace, and hence would be extremely unlikely to do so. The heart of the necessity defense is that yes, I committed a crime, but I did so to avert a greater harm. Although the genesis of the necessity defense has been lost in the mists of time, it has been recognized as a legitimate defense to a crime⁴⁵ for centuries, and over half of American jurisdictions accept it. When a court accepts this defense, it balances the evils and rules that conduct otherwise criminal was legitimized by the dire circumstances in which the defendant found himself. The necessity defense fails when the harm to be avoided is no greater than, or is outweighed by, that which resulted from the defendant’s crime.

When one invokes the necessity defense (successfully or unsuccessfully), he admits committing the crime; for example, stealing food to avoid starvation; escaping prison to avoid forced sexual assaults and threats of death; killing an abortion doctor to prevent the deaths of an unknown number of fetuses; possessing a firearm without a license to protect oneself against a threat to one’s life; using marijuana to reduce the nausea and pain of AIDS or cancer; and so on.

But if Bush were to admit that he took this nation to war on a lie and 4,000 U.S. soldiers lost their lives because of it—and hence, he committed the crime of murder—what justification could he have for doing so? That if he didn’t lie the American people and Congress wouldn’t have backed him in his war—a war he would claim was a necessity because if he did not invade Iraq, Iraq would have either used WMD on us or given them to a terrorist organization to do so? But since the only issue is whether or not Hussein was an imminent threat to the security of this country, if Bush were to admit that he lied when he said Hussein was such a threat, what could the truth possibly have been other than that Hussein was not an imminent threat? But if that is so, then what greater harm did Bush prevent by committing his crime of murder?

Apart from the fact that Bush would never voluntarily admit that he committed murder, and hence, the necessity defense would almost assuredly never be raised by Bush, even if he were to do so there would be another very significant problem for him. The majority of jurisdictions that allow the defense of necessity either by case law (e.g., California) or statute (e.g., Texas Penal Code Ann. §9.22 (1), Vernon, 1974) require that the greater harm sought to be prevented was “imminent” or “immediate,” the very same requirement of self-defense that we know Bush could not meet with respect to Hussein and Iraq. As the court said in a California case, all of the necessity defense cases in the state that the court reviewed required “immediacy and imminency of the threatened action: each represents the situation of a present and active aggressor threatening immediate danger; none depict a phantasmagoria of future harm” (People v. Otis, 174 C.A. 2d 119, 125 [1969]).

The biggest booster of the notion that imminence should not be a required element of the choice of evils defense is the American Law Institute (ALI). Its Model Penal Code, Section 3.02, does not set forth imminence as one of the requirements of the defense. But the Model Penal Code, though very influential because of the prestigious ALI (consisting of prominent judges, lawyers, and law professors) that produced it, is not the law and very few cases (e.g., People v. Unger, 362 N.E. 2d 319 [1977]) and jurisdictions have jettisoned the “imminence” requirement.⁴⁶ Indeed, even in a jurisdiction that has statutorily adopted §3.02 of the Model Penal Code verbation (Pa. Cons. Stat. Ann. Tit. 18, §503), later case law was still requiring imminence in a necessity defense (Com. v. Merriwether, 555 A. 2d 906 [1989]).

In any event, Bush would only be weakening his defense to the murder charge against him by, in effect, abandoning self-defense and admitting he committed murder, but under necessity.

153 On its face, it makes no sense that people of this enormous stature in our society would have done the horrendous things that Mr. [prosecutor’s last name] is claiming they did.” Because some prospective jurors might, indeed, be susceptible to this argument (see my reference to this precise matter near the end of the opening chapter of this book), during voir dire (jury selection), I would ask each juror, “Are you of such a frame of mind that because Mr. Bush occupied the highest position in the land, the presidency of the United States, he simply would not be capable of committing a crime such as the murders alleged in the indictment in this case?” If the juror said yes or was even hesitant or ambiguous in his answer, he or she could be challenged for cause and removed from the jury panel. If he said no, I would get a commitment from him, under oath, that he would take that state of mind into the jury room during the jury’s deliberations, a commitment I would remind him (and the other eleven jurors) of during my final summation.

154 . . . attorney general of the United States through his Department of Justice. For those readers who may believe that since, under the U.S. Constitution (Article II, Section 2), the President is the “Commander in Chief of the Army and Navy of the United States,” he is, by definition, a member of the military, and hence could only be prosecuted in a military tribunal by the office of the Judge Advocate General, the President is not a member of the American military, and therefore, the military has no jurisdiction over him. He is a civilian elected by the citizens of this country, and one of his civilian functions as President is to be the commander in Chief of our armed forces.

As an adjunct to this, author and historian Gary Wills notes that when modern presidents return salutes given to them by the military upon getting off Air Force One or the presidential helicopter, there is no basis for this. He writes: “That is an innovation that was begun by Ronald Reagan. Dwight Eisenhower, a real general, knew that the salute is for the uniform, and as president he was not wearing one. An exchange of salutes was out of order.”

154 The statutory authority for prosecuting Bush for conspiracy to commit murder and for first (or second) degree murder would be 18 U.S.C. §§’s1117 (Conspiracy) and 1111 (Murder). In any prosecution of Bush for murder in this case, the important question of jurisdiction (the legal right by which a court has the power to exercise its authority) arises. And although, as with virtually all cases where the criminal conduct is not confined to the United States (or one individual state), the resolution of jurisdiction is predictably murky, it is definitely present. The other reality one has to keep in mind on this matter of jurisdiction is that although the legal framework is present to provide jurisdiction for the prosecution of Bush for murder and conspiracy to commit murder, the factual situation obviously is a case of first impression and hence, by definition, there can be no appellate court cases to cite that are directly in point.

In the federal courts, the murder statute is 18 U.S.C. §1111(a). It provides for first and second degree murder with a standard definition of first degree murder, adding that “any other murder is murder in the second degree.” However, section (b) provides that no federal court has jurisdiction to prosecute such a murder unless it was committed “within the . . . territorial jurisdiction of the United States.” Indeed, such a limitation exists for all federal crimes, not just murder. So a federal prosecution of Bush under §1111(a) would immediately be objected to by his legal counsel, who would argue that under §1111(b), the federal court had no jurisdiction to try the case since even if we assume for the sake of argument that the killings of the American soldiers constituted murder, the murders were committed in Iraq, outside the territorial jurisdiction of the United States.

But their objection, I believe, would be denied. Under what has come to be known as the “protective principle,” the “law of nations” (international law) confers jurisdiction to American courts for criminal conduct engaged in outside the United States (and hence, under §1111(b), otherwise outside the jurisdiction of the federal court) where the crime committed injures the nation. For instance, in U.S. v. Benitez, the defendant Benitez was prosecuted for conspiring, in Colombia, to murder U.S. DEA agents, for assaulting the agents, and for robbing them. Although Colombia is otherwise outside the territorial jurisdiction of the United States, Benitez’s argument that the federal district court for the Southern District of Florida had no jurisdiction was rejected, the court ruling that “under the protective principle,” the crimes committed in Colombia “certainly had a potentially adverse effect upon the security or governmental functions of the nation.” If a case in Colombia resulting in only an assault on federal DEA agents and the robbery of their passports and DEA credentials was held to have a potentially adverse effect upon the United States, as lawyers like to say, “a fortiori” (all the more so), a case where 4,000 American soldiers have been killed in Iraq in a war that has cost America thus far over one trillion dollars would certainly be deemed by any federal court to have had an extremely deleterious effect upon this country.

Additionally, the jurisdictional basis for a prosecution of Bush in a U.S. federal court would be much more robust than in Benitez since no part of Benitez’s crimes were committed here in the United States. With Bush, the conspiracy to commit the murders in Iraq was committed entirely in the United States.

The Benitez court found another separate and independent basis under the law of nations for conferring jurisdiction on the Florida District Court, “the nationality or national character of the victim” principle, the court saying that “the nationality of the victims, who are also United States government agents, clearly supports jurisdiction” (United States v. Benitez, 741 F. 2d 1312, 1316 [1984]). (Obviously, the 4,000 American soldiers who have died in Iraq fighting Bush’s war were all U.S. citizens.) Many other federal cases have stood for the same law of nations’ exceptions to the territorial jurisdiction limitation (e.g., United States v. Pizzarusso, 388 F. 2d 8-11 [1968]; Rocha v. United States, 288 F. 2d 545-549 [1961]; Rivard v. United States, 375 F. 2d 882, 885-887 [1967]; Ford v. United States, 273 U.S. 593 [1927]; Marin v. United States, 352 F. 2d 174 [1965]).

It should be noted that the entire law of nations’ exception to territorial jurisdiction is arguably rooted in Article 1, §8, cl. 10 of the U.S. Constitution, which provides that “Congress shall have the power . . . to define and punish . . . offenses against the Law of Nations,” and in the “necessary and proper” clause of the Constitution (Article 1, §8, cl. 18).

However, I feel the more natural way to provide federal jurisdiction to prosecute Bush under the federal murder statute, §1111, is the federal conspiracy to commit murder statute, 18 U.S.C. §1117. Although §1117 does not contain the express requirement that the conspiracy have taken place within the territorial jurisdiction of the United States, this requirement would be picked up under the general section for federal jurisdiction, 18 U.S.C. §7. Here, the conspiracy obviously took place between Bush and people like Cheney and Rice in the White House, which of course is within the territorial jurisdiction of the United States (Article 1, §8, cl. 17 of the U.S. Constitution). ⁴⁷ So Bush could very definitely be prosecuted by the federal authorities for conspiracy to commit murder. And if we went no further, if he was convicted, under §1117 he could be sentenced to a maximum punishment of life imprisonment. (If he were convicted under §1111, the federal murder statute, he could be sentenced to either life imprisonment or death.)

With respect to prosecuting Bush in the federal courts for murder on the foundation of the conspiracy statute, §1117, it is standard, boilerplate state and federal law that all coconspirators are criminally responsible for all crimes committed by their coconspirators (as well as here, innocent agents) to further the object of the conspiracy. In this case, the object was a war, and since the nation was taken to war by Bush and his people under false pretenses, the killings of American soldiers in the war constitute murder. And Bush is guilty of these murders even though he did not, of course, personally commit any of them. By analogy, as set forth in the main text, Charles Manson, a member of the conspiracy to murder the seven Tate-La Bianca victims, was guilty of these murders even though he himself (like Bush) did not commit any of the seven murders. Although I prosecuted him for the murders under §187 of the California Penal Code, I also prosecuted him and his codefendants for the crime of conspiracy to commit murder under §182 of the California Penal Code, and it was that statute, the conspiracy statute, that allowed me to prosecute Manson for the murders under §187.

155 . . . any state attorney general in the fifty states . . . could bring a murder charge against Bush for any soldiers in that state who lost their lives fighting Bush’s war. Bush would not achieve anything by arguing that the subject state had no jurisdiction to prosecute him because in going to war in Iraq he was carrying out his duties as a federal constitutional officer (i.e., president), and hence, under the supremacy clause of the U.S. Constitution (Article VI, cl. 2), he could only be prosecuted, if at all, in a federal court under federal law. But the supremacy clause as well as the facts of this case would offer no legal shelter for Bush. If Bush committed an act that constituted murder under both state and federal law, there would be concurrent jurisdiction to prosecute him, and, in the absence of a federal prosecution, the supremacy clause would not preclude any state court prosecution. The clause would only be applicable if both state and federal authorities wanted to prosecute him at the same time, in which case federal law would prevail and the state court would be without jurisdiction to proceed at that time. Here, if there was a federal prosecution and conviction of Bush for murder under federal law, there would be no pressing need for a state prosecution anyway, though the state could prosecute him after the federal prosecution concluded under the principle of dual sovereignty, which recognizes that the federal government as well as the individual states are separate sovereigns. As the court said in United States v. Davis, “Under this well-established principle, a federal prosecution does not bar [under the double jeopardy clause of the Fifth Amendment to the U.S. Constitution] a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one . . . When a single act violates the laws of two sovereigns, the wrongdoer has committed two distinct offenses” (906 F. 2d 829, 832 [1990]; see also, Bartkus v. Illinois, 359 U.S. 121 [1959], and Abbate v. United States, 359 U.S. 187 [1959]).

Let’s take the hypothetical situation where the federal government did not want to prosecute Bush, and without a supremacy clause issue, state court proceedings were instituted against him. Could he seek a writ of habeas corpus in a federal court to bar the state prosecution on the ground that he could not be found guilty in a state court for any act of his that took place in the performance of his official duties as a federal officer? Yes. But the writ would be denied unless he could prove in the federal habeas corpus proceeding that as president, he had a “duty to do” the act (i.e., take this nation to war), and that his conduct was “necessary and proper” (In re Neagle, 135 U.S. 1, 75-76 [1890]; see also In re McShane’s Petition, 235 F. Supp. 262 271-272 [1964]; In re Waite, 81 F. 359, 365 [1897]; Clifton v. Superior Court, 35 C.A. 3d 654, 658, [1973]; 28 U.S.C. §§’s 2241, 2251). If the facts are as I believe them to be, this he could not possibly do, and the federal court would not issue the writ.

Bush could be expected to make one or more other challenges to the jurisdiction of any state court to prosecute him for murder, including citing the language of Article III, §2, cl. 3 of the U.S. Constitution (and 18 U.S.C. §3238) that when a crime is “not committed within any state” (the killing of American soldiers took place in Iraq), the trial shall take place in a federal court. But here, as indicated in the main text, the crime of conspiracy to commit murder was committed in the states by the overt acts of Bush, Cheney and Rice—on their misrepresentations on TV, radio, and in print reaching all fifty states, and in the recruitment of soldiers in the states—taking the nation to war under false pretenses. Once jurisdiction has fastened on the state court to prosecute Bush et al. for the crime of conspiracy to commit murder, killings that were the direct result of that conspiracy would also fall under the jurisdiction of the subject state court. In this regard, state courts can avail themselves, as the federal courts, of the law of nations’ principles of jurisdiction (e.g., the “protective” or “effects” principles) to give them extraterritorial jurisdiction.

The leading case for this proposition is the U.S. Supreme Court case of Strassheim v. Daily, 221 U.S. 280, 285 (1910), in which Justice Oliver Wendell Holmes said, “Acts outside a [state’s] jurisdiction, but intended to produce and producing detrimental effects within it [which would certainly include the deaths in Iraq of the citizens of a state], justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.” (Any state could do the latter with its prosecution of Bush for conspiracy to commit murder.) See also, Skiriotes v. Florida, 313 U.S. 69, 73, 76 (1941), where the conduct of a citizen of Florida on the high seas (outside the territorial jurisdiction of the state of Florida) was held to be within the jurisdiction of Florida’s courts where a state interest was involved. But it’s not necessary to a state’s jurisdiction that the defendant be a citizen of the state. See State v. Bundrant, 546 P. 2d 530, 534-535, 554-556 (1976). Indeed, the state can extend jurisdiction under the effects doctrine even where the conduct adversely affecting the state takes place within the territorial jurisdiction of another country. See State v. Jack, 125 P. 3d 311, 318-322 (2005), where the state was Alaska, and the country Canada. For a discussion of this issue, see Robinson, Paul H., Criminal Law, pp. 102-103, Aspen Publishers, New York, 1997).

It has to be noted that efforts by Bush to have state proceedings against him terminated on the ground that only a federal court would have jurisdiction would only serve to publicize the fact to the nation that a federal prosecutor should step forward to prosecute Bush under federal law, which, as I’ve indicated, would be the most natural and best venue to bring Bush to justice.

155 But a necessary element of the corpus delicti of the federal crime of conspiracy is that at least one overt act be committed by one or more members of the conspiracy to further the object of the conspiracy. (Hyde v. United States, 225 U.S. 347, 361-365 [1911]; Federal Judicial Center, Pattern Criminal Jury Instructions, 5.06A).

156 To repeat, the attorney general in each of these fifty states would have jurisdiction to prosecute Bush for conspiracy to commit murder and murder. There is even a statutory basis for a prosecution of Bush by the states for conspiracy to commit murder. It is found in the well-accepted rule of law that if any part of a crime is committed in a state, that state has jurisdiction to prosecute. A typical state statute would be that in California. Section 778a of the California Penal Code (enacted way back in 1872) reads: “Whenever a person, with intent to commit a crime, does any act within this state in execution or part execution of that intent, which culminates in the commission of a crime, either within or without [outside] this state, the person is punishable for that crime in this state in the same manner as if the crime had been committed entirely within this state.”

Although some states (e.g., California: see People v. Buffum, 40 C. 2d 709, 716 [1953]) hold that the “act” within the state not be “any act,” but one that is the legal equivalent of a criminal attempt, it has been noted that only “a small group of states retain” the requirement of an attempt. “The larger group of [state] provisions based on the Model Penal Code [§1.03 (1) (a)] require only that ‘an element of the offense’ occurs within the state. Conduct can meet this standard without coming so close to substantial completion as a state might require for an attempt” (La Fave, Wayne R; Israel, Jerold H; King, Nancy J., Criminal Procedure, 2d edition, Vol. 4, p. 583, West Group, St. Paul, 1999).

A classic example of this already well-established rule in case law is where the premeditation to commit murder (premeditation being an essential element of first degree murder) is formed in one state, but the murder itself takes place in another. In Lane v. State of Florida, the defendant formed the premeditation in Florida for a murder committed in Alabama. The court held that Florida had jurisdiction to prosecute the defendant for first degree murder in Florida for the Alabama murder (388 So. 2d 1022 [1980]; see also, State v. Harrington, 260 A. 2d 692, 697 [1969]; Conrad v. Alabama, 317 N.E. 789 [1974]; State v. Willoughby, 892 P. 2d 1319; and Commonwealth v. Thomas, 189 A. 2d 255, 258-259 [1963]).

Since an overt act is a necessary element of the crime of conspiracy, this fact alone would give the majority of American states jurisdiction to prosecute Bush for the crime of conspiracy to commit murder. Even in the minority states that require that the act committed within the state amount to an attempt (not an attempt to commit the murders in Iraq), there are several reasons why an overt act is a special act that cannot be put in the “any act” category that the California Supreme Court, in the Buffum case, said should really be like an attempt. “A criminal attempt is a step towards a criminal offense [like robbery, burglary, murder, etc.] with specific intent to commit that particular crime,” one eminent legal scholar wrote. Virtually all courts demand that the step come reasonably close to the actual commission of the crime. Hence, mere preparation to commit the crime will not suffice. Certainly, if A fires at B to kill him, and misses, this is attempted murder.

How far away from the successful completion of the offense can one go and still be held, by his actions, to have attempted to commit the crime? “It is not practical to prescribe guiding rules for determining this,” the court said in People v. Gibson, 94 C.A. 2d 468, 471 (1949). But an example or two will be instructive. In People v. Lanzit, the defendant, intending to kill his wife by dynamiting her place of business, procured someone to make the bomb, went with him to his wife’s business, and while getting ready there, was arrested. This was held to be attempted murder (70 C.A. 498, 504, 506, [1925]). Two men, having agreed to rob a payroll clerk, went to the bank where the clerk was scheduled to receive his payroll and stationed themselves to rob him but were arrested before the clerk appeared on the scene. The court, in People v. Gormley, 225 N.Y.5. 653 (1927), held this was attempted robbery.

One can be guilty of an attempt without his act having constituted an element of the crime he sought to commit. For instance, robbery is the taking of personal property from the possession of another, by force or fear, with the intent to steal. Note that none of these elements of robbery were present in the Gormley case (not even an intent to steal, since said intent has to be contemporaneous with the act of taking, and there was no taking), yet Gormley was guilty of attempted robbery. But the crime of conspiracy cannot even be committed without an overt act, since the overt act is an element of the crime of conspiracy, thereby elevating it to a special act status.

So any overt act will give jurisdiction in a conspiracy case, whereas that same overt act might not be nearly enough to constitute an attempt to commit a crime such as robbery, arson, or burglary. For example, if A and B conspired to rob C when he arrived home from work, B’s making a phone call to C’s factory to learn when C’s shift ended would definitely constitute an overt act under the law of conspiracy, but would just as definitely not constitute, at that point, an attempted robbery. So an overt act isn’t just “any” act.⁴⁸ As the court said in a federal case, “A conspiracy may be prosecuted in the district where it was formed, or in any district in which an overt act was committed in furtherance of its objects. The place where the conspiracy was formed is immaterial if at least one of the overt acts alleged and proved took place within the district where the defendant is tried. It is not essential that the defendant ever enter the state or district of trial” (Downing v. United States, 348 F. 2d 594, 598 [1965]; see also, Hyde v. United States, 225 U.S. 347, 361-365 [1911]; 18 U.S.C. §3237[a]).

And we can’t forget that just as overt acts aren’t “any” acts, the two overt acts in this case giving every state in the Union jurisdiction to prosecute Bush for conspiracy to commit murder weren’t “any overt acts” either. Telling lies to the American people to get their support to go to war and recruiting soldiers to fight this war couldn’t possibly be more important to Bush and his coconspirators in achieving the object of their conspiracy.

157 And the existence of the conspiracy “can be inferred if the evidence reveals that the alleged participants shared ‘a common aim or purpose’ and ‘mutual dependence and assistance existed’ ” (United States v. De Luna, 763 F. 2d 897, 918 [1985], quoting from United States v. Jackson, 696 F. 2d 578, 582-583 [1982]).

157 Two who definitely should be are Cheney and Rice, coconspirators and aiders and abettors in the murders. It should be noted that an automatic additional count against Bush and his coconspirators in any federal indictment against them would be the federal felony of “conspiracy to defraud the United States” under 18 USC §371, which provides: “If two or more persons conspire . . . to defraud the United States, or any agency thereof [certainly Congress would be such an agency] in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.” But obviously, given the enormity of what these people did, they deserve much worse. Only a conviction of murder would be adequate here.

By the way, a felony-murder prosecution against Bush and his coconspirators under 18 U.S.C. §1111 could not take place since the §371 felony is not one of the enumerated felonies set forth in §1111.

161 He, of course, couldn’t come up with any such agency (or member thereof ) . . . If Bush answered that he received this information from Douglas Feith’s rogue unit at the Department of Defense (which already had its own authorized intelligence agency, the DIA), his position would not stand up on cross-examination. As alluded to in an earlier note, unlike any of the sixteen U.S. intelligence agencies authorized by federal law, Feith’s unit was only authorized by a key Iraqi war architect, Paul Wolfowitz (Secretary of Defense Donald Rumsfeld’s chief deputy), who himself, along with Feith, in my opinion, were likely coconspirators with Bush in taking this nation to war on a lie. Moreover, neither Feith nor any member of his staff had any training or background in intelligence. Additionally, Bush has never even said, in the previous six years, that Feith’s group provided him with any document or report that concluded Hussein was an imminent threat to the security of this country.

Apart from the fact that Feith would be the type of lower-level conspirator the prosecutor might grant immunity from prosecution to testify against Bush, for Bush to assert he relied on the conclusions of Feith’s motley, amateur group (assuming for the sake of argument they even told Bush that Hussein was an imminent threat) over the conclusions of sixteen well-established federal intelligence agencies led by the CIA would make Bush not only look ridiculous and implausible to the jury, but worse, it would look like he was relying on his own coconspirators to go to war.

CHAPTER 5: BUSH “COULDN’T POSSIBLY” HAVE BEEN ANY WORSE IN HANDLING THE WAR ON TERRORISM

174 It was widely accepted that killing Bin Laden in the process of attempting to capture him was not to be discouraged. Clinton’s national security advisers told the 9/11 Commission that Clinton wanted Bin Laden dead and his legal advisers said that killing Bin Laden would be lawful because the killing of anyone who posed a threat to the country would not constitute an “assassination,” the latter being prohibited by earlier presidential executive orders of Presidents Ford and Reagan. In 1976, President Ford issued Executive Order 11905, which provided that “no employee of the United States Government shall engage in, or conspire to engage in, political assassination.” On December 4, 1981, in his Executive Order 12333, President Reagan even tightened the ban, dropping the word “political” and adding that nobody “acting on behalf of” the United States could assassinate anyone. The 9/11 Commission said that every CIA official whom they interviewed on the matter, including CIA director George J. Tenet, told the commission that Bin Laden could only be lawfully killed if he died in an operation whose objective was to capture him.

175 On August 20, 1998, Clinton’s CIA did launch sixty Tomahawk cruise missiles on an Afghan camp where Bin Laden was believed to be . . . A missile strike in 1999 against a desert camp in Afghanistan where Bin Laden was supposed to be was called off at the last moment because predator cameras seemed to show the presence of officials from the United Arab Emirates (considered to be an ally of America) visiting the camp. Another strike in Kandahar in 1999 was called off because of the fear of civilian casualties and the lack of confidence in the accuracy of intelligence.

In 2000, Clinton visited Pakistan and urged its government to use its influence with the neighboring Afghanistan government of the Taliban to expel Bin Laden from their country, but the 9/11 Commission said, “The Pakistani position was that their government had to support the Taliban [most of whose members received their religious training at schools in Pakistan], and that the only way forward was to engage them and try to moderate their behavior.”

179 Although Ms. Rice spoke very vaguely about the Bush administration having worked prior to 9/11 on a “comprehensive strategy” to destroy the Al Qaeda network . . . There is no evidence that the Bush administration did anything other than disregard the findings of an earlier report on February 15, 2001, from a federal commission headed up by former U.S. senators Gary Hart (Democrat) and Warren Rudman (Republican) concluding that “mass-casualty terrorism directed against the U.S. homeland was of serious and growing concern.” The commission, formed during the presidency of Bill Clinton, recommended that a national homeland security agency be created. But it was Democrats in Congress who later urged the creation of such an agency (the cosponsors of the proposed legislation were Senators Joe Lieberman and Max Cleland), with the Bush administration opposing it for months until it reversed itself and backed the Homeland Security Act of 2002 with a cabinet-level director in charge of the new department.

180 “In this time period, I’m not talking to him, no.” It has to be added that despite Tenet’s testimony before the 9/11 Commission in 2004, later, in his 2007 book, At the Center of the Storm, Tenet said that “a few weeks after the August 6” memo was delivered to Bush he flew to Texas to “make sure the President stayed current on events”—presumably referring to the terrorist threats, although he curiously makes no mention at all of what he told the president in this regard.

It is difficult to reconcile the fact that in 2004 Tenet testified under oath that he did not see or talk to Bush during the month of August of 2001, yet in his book three years later (when one would expect his memory to be worse, not better) he said he did meet with Bush in August. Some time after Tenet’s embarrassing (to Bush and himself) testimony before the 9/11 Commission, the CIA said that their records showed that Tenet met with Bush twice in August of 2001: once at Bush’s ranch on August 17 (about two weeks after the August 6 memo) and once in Washington, D.C., on August 31, but did not say that the meetings concerned the August 6 memo.

181 . . . Bush told Washington Post reporter Bob Woodward that before 9/11, “I didn’t feel that sense of urgency . . . I was not on point.” Secretary of State Powell, the ever-loyal public servant, tried to help Bush by telling the 9/11 Commission: “We wanted to move beyond the rollback policy of containment, criminal prosecution, and limited retaliation for specific terrorist attacks. We wanted to destroy Al Qaeda.” But Secretary Powell, if you all felt Al Qaeda was that serious a threat, why did all of you move at such an elephantine pace? If the type of fear of Al Qaeda that you suggest existed, shouldn’t the pace have been more reminiscent of that of Jesse Owens at the Berlin Olympics of 1936? Doesn’t the pace you took betray your true state of mind of being largely oblivious to the threat?

191 Moore asked, “Was he thinking, ‘I’ve been hanging out with the wrong crowd. Which one of them screwed me?’ ” But wait. There perhaps is another good reason for Bush staying in that classroom as long as the second-graders kept reading. We know that Bush has been incredibly audacious and impervious to reason as he has destroyed everything in his path. The story the children were reading was about a young girl’s pet goat that eats everything in its path. How can we blame Bush for not wanting to know how this story ended? He may have identified with this goat.

197 You don’t give anyone any credit for something he had no choice but to do. This phenomenon of people failing to grasp that credit requires a choice has rarely been exemplified more than in the godlike glorification and deafening praise heaped upon Rudy Giuliani for his performance on 9/11. Over and over he was called “the hero of 9/11.” Encomiums such as he was “Babe Ruth, John Wayne, and the Beatles all rolled into one” and was “America’s Winston Churchill” were common. No one, obviously, could be expected to be more fair to Giuliani than Giuliani himself, a notorious self-promoter. But when I read Giuliani’s own testimony before the 9/11 Commission and his own book, Leadership, to find out just what he did on 9/11 other than what any other competent mayor would have done that singled him out, I found absolutely nothing at all. And if anyone can read what Giuliani himself said he did after the two planes crashed into the Twin Towers that was special in any way at all, they are much better linguistic archaeologists than I.

Another example out of literally thousands of this phenomenon, this one from a few years back. Mills Lane was the referee in the June 28, 1997, Mike Tyson-Evander Holyfield heavyweight championship fight. After Tyson, who gave new meaning to the term “hungry fighter,” bit Holyfield’s left ear in the third round, causing Holyfield to leap in pain across the ring, a minute later he actually bit off a chunk of Holyfield’s right ear, Lane naturally disqualified Tyson. But overnight, Lane became a media sensation. “He’s a hero,” the sports editor of the Los Angeles Times gushed. Tributes to Lane came in from around the country; he was the cover story in USA Today; and Jay Leno, Larry King Live, and Good Morning America, among many others, wanted him on their show. But what had Lane done that was so “heroic” that any other rational referee would not have done? Are we to believe that other referees would have waited until Tyson approached Holyfield with a jar of mustard and ketchup before finally stepping in?

Indeed, people are so crazy that one doesn’t even have to do anything to be denominated a hero. After fifty-two Americans were captured in 1979 at the U.S. embassy in Tehran by a group of militant Iranian university students, held hostage for 444 days, and released on January 20, 1981, these American hostages were treated like heroes everywhere in America, actually being given a ticker-tape parade through the Canyon of Heroes on Broad-way in lower Manhattan. But for what? No one ever said.

198 Not giving a speech saying he was going to go after the terrorists? Actually, Bush did fail in one not insignificant way. With the nation in shock and mourning from the tremendous tragedy and the first foreign attack ever on our soil, obviously Bush should have addressed the nation in depth within no more than a few days of 9/11. His speaking on television for around one minute outside the Sarasota classroom certainly didn’t qualify. Neither did the two- or three-minute “speech” he gave to the nation on the evening of 9/11. It was so short that the Los Angeles Times properly felt it didn’t even rise to the dignity of a speech or an address, calling it only a “brief statement.” While the nation waited to hear a formal and substantive address from its commander-in-chief about 9/11, Bush, for all intents and purposes, hid out. There was no major speech from him to the nation on September the 12th, or 13th, or 14th. Nor on the 15th, or even the 16th, or 17th. September 18th came and went and Bush was a no-show. Same for the 19th. Finally, finally, on the evening of September 20th, almost ten days after the tragedy (a third of a month later), Bush addressed the nation. President Franklin Delano Roosevelt, acting as a normal president would, addressed the nation by radio (no TV then) on the evening of December 9, 1941, two days after Pearl Harbor. (Roosevelt’s famous description of December 7, 1941, as “a date which will live in infamy” was delivered by him in a brief statement to Congress the previous day.)

201 So saying that Gore and the Democrats wouldn’t have responded to 9/11 . . . This, of course, is ridiculous. Although Clinton, after the car bombings of American embassies in Kenya and Tanzania in August of 1998 that killed 224 people, 12 of whom were Americans, didn’t invade Afghanistan (where the leadership of Al Qaeda, who were believed to be behind the bombings, were), that’s because you don’t invade a foreign country when terrorists from that country kill Americans in foreign capitals. The 9/11 Commission said that “both civilian and military officials of the Defense Department state flatly that neither Congress or the American public would have supported large-scale military operations in Afghanistan before the shock of 9/11.” Condoleezza Rice told the 9/11 Commission that prior to 9/11 “no one counseled an all-out war against Afghanistan of the kind that we did after 9/11 . . . [It] was not recommended.”

210 Relatives of the victims in the room applauded Clarke. Even though it is not subject to dispute that 9/11 happened because, by definition, Bush’s

FBI and CIA did not detect the Al Qaeda conspiracy to attack the World Trade Center Towers on 9/11, Bush not only failed to apologize to the nation or the victims’ survivors, he demonstrated his total lack of leadership by refusing to fire or even criticize those in these agencies who, like Bush, let this nation down. As in private life, to stimulate excellence, good performances have to be rewarded and gross negligence and incompetence punished. How did President John F. Kennedy respond to the CIA’s botched handling of the Bay of Pigs invasion in Cuba in 1961? He called the director of the CIA, Allen W. Dulles, and two of his chief assistants—Lieutenant General Charles Cabell, the deputy director of the CIA, and Richard Bissell, the CIA deputy director of Plans who was the chief architect behind the invasion—each of whom Kennedy was friendly with and respected, into his office and told them: “Under the British system I would have to go. But under our system, I’m afraid it’s got to be you.” After allowing a decent passage of time, Kennedy accepted the resignations of Dulles and Bissell, and Cabell retired. But you see, Kennedy was a leader and real president. Bush is neither. CIA director George Tenet did resign (on June 3, 2004, nearly three years after 9/11, due to mounting criticism of his performance), but there wasn’t the slightest intimation from anyone that Bush asked or even wanted him to.

211 . . . although the 9/11 bipartisan commission consisted of distinguished people, they were all political insiders and seemed reluctant or incapable of asking the necessary, tough questions. People like Democrat Richard Ben-Veniste, a lawyer, give the impression that their main goal is to make sure they don’t do anything that will prevent their appointment to the next commission. They growl just loud enough (you know, things like, “Just answer the question”) to be acceptable to the Democrats. I shouldn’t be too harsh on Ben-Veniste. If he’s a typical lawyer, he simply is incapable of asking penetrating, cross-examination questions.

225 We also all know that Iraq had no terrorists before Bush invaded it. The only one . . . Abu Nidal (real name, Sabri al-Banna) was a Palestinian terrorist who, in the 1970s through the 1990s, headed up a small terrorist group that floated throughout the Mideast, including Syria, Libya, and Iraq, although Iraq after harboring and supporting Nidal, expelled him in 1983. Nidal is believed to have been behind the deaths of three hundred people in twenty countries. Before his death in Baghdad in August of 2002 he was reported to be in poor health, and the circumstances surrounding his death have been questioned by some. Iraqi authorities claim that Nidal had entered Iraq illegally, and when he was discovered by Iraqi officials he committed suicide by shooting himself.

226 They were free to pursue any lifestyle or religion they wanted—Muslim, Christian, gay . . . As a representative sample of the stark difference between prewar Iraq and now, under Hussein Baghdad was a city where sexual freedom flourished. No more. In fact, in 2005 the grand ayatollah Ali al-Sistani, the most revered Shiite religious figure in Iraq, issued a decree (since lifted) calling for all gay men and lesbians to be killed in the “worst, most severe way.” A Baghdad gay told the New York Times in December of 2007: “The way things were before was so much better than where we are now.” Gays in today’s Iraq are forced to hide their sexual orientation and practice their lifestyle in great secrecy.

228 Slightly more than that do not even want us in their country, viewing us not as liberators but as invaders and occupiers. If Bush had any sense, he would have taken the advice of his father, who in his 1998 book, A World Transformed, coauthored with Brent Scowcroft, explained why he didn’t seek to oust Saddam Hussein from power after his anti-Iraq coalition forced Hussein’s military forces out of Kuwait. “Trying to eliminate Saddam [by] extending the ground war into an occupation of Iraq,” he wrote, “would have incurred incalculable human and political costs . . . Had we gone the invasion route, the United States could conceivably still be an occupying power in a bitterly hostile land.”

It wasn’t just his father. On May 25, 2007, the U.S. Senate Intelligence Committee issued a report in which it cited previously classified documents showing that two months before Bush invaded Iraq, U.S. intelligence agencies twice presciently warned the Bush administration of the extreme difficulty of establishing a democracy in Iraq after removing Hussein from power. They predicted that Al Qaeda would exploit the inevitable instability in Iraq to increase its operations and influence. But when you’re hell-bent on going to war, as Bush was, you don‘t take anyone’s advice, including that of your own father.

Although all but the flag-waving right wing agree that the situation in Iraq has disintegrated to the point where the war has become hopeless, and our role has essentially been reduced to trying to protect Iraqi people from the Sunni insurgents and Shiite militia, and trying to protect each of these groups from each other, Bush desperately clings to the “stay the course” plan. Why? Can it be that Bush knows if he leaves Iraq now, this will be an open admission that the war that completely defined his presidency was an abysmal failure, one that will consign him to the trash heap of history for all time? Indeed, this might happen whatever he does. But if he leaves now, he knows it is certain to happen.

He also knows that if he keeps us in Iraq to the bitter end of his presidency (which he has said he will do, telling author Bob Woodward that he would continue the war even if the only ones supporting him were “my wife and Barney,” his dog), maybe, just maybe, he can salvage something, anything at all, for his ignominious legacy. Or that maybe his successor, burdened with the disaster Bush left him or her with, will, like Nixon in Vietnam, start to share the blame.⁴⁹

In the meantime, young American soldiers continue to die violent deaths in Iraq in a senseless war that has already been lost. And although arguments can be made for our gradual, as opposed to immediate, withdrawal, this very slow withdrawal, resulting in a continuation of the war, may be an intentional sacrifice of American lives and blood by Bush for no other reason than to help him, in his mind, diminish the blame directed toward him. Although I obviously do not know this to be true, I believe it to be a real possibility only because I believe this man is, or is close to being, a human monster.

228 Out of the blood and debris of the Iraq war, how many young Bin Ladens will we eventually have to deal with down the line, whom Bush created . . . What I’ve said here is just common sense, but indeed, there’s an interesting historical precedent for this phenomenon. Bin Laden himself was one of many young Muslim volunteers to go to Afghanistan in the 1980s to join in a jihad (holy war or struggle) against the Soviet Union invaders of Afghanistan (supported, as it happens, by the United States). After the Afghan-Soviet War in the late 1980s, Bin Laden formed his Al Qaeda network to start jihads elsewhere, culminating in 9/11.

229 The report said, “We judge that the United States currently is in a heightened threat environment.” Against this incontrovertible evidence of gross, shamefully reckless incompetence, what is the favorite argument that Bush and his people trumpet to convince nonbelievers that they have been effective in combating terrorism? That Al Qaeda hasn’t struck again on our shores since 2001. But doesn’t that presuppose that they have tried since then and have been successfully repelled? If so, where is the evidence? And it certainly can’t be that they haven’t tried because of the high state of our homeland security, which virtually everyone agrees is alarmingly poor. Remarkably, right-wing columnists like Charles Krauthammer started making the argument of “no further attacks” since 9/11 just two years later! Indeed, Karl Rove, in early May of 2003, just over a year and a half after 9/11, was crowing to the public: “The country has not been hit since 9/11.” But under that flabby reasoning, inasmuch as prior to September 11, 2001, Al Qaeda hadn’t struck in America since the World Trade Center bombing in 1993, which would include seven years of the Clinton presidency, I guess we should give Clinton credit for repelling them for seven years.

229 They’ve called Democrats “quitters” and people who want to “cut and run” because they want to end our disastrous war in Iraq . . . The essence of Bush’s current main argument for continuing his war in Iraq is captured in this statement of his on September 11, 2006: “Whatever mistakes have been made in Iraq, the worst mistake would be to think that if we pulled out, the terrorists would leave us alone. They will not leave us alone. They will follow us. The safety of America depends on the outcome of the battle in the streets of Baghdad.” But this is pure claptrap. Our terrorist enemy, everyone knows, is Osama Bin Laden’s Al Qaeda. No one questions the fact that not just Bin Laden, but the strength and heart of his organization is presently residing in the tribal and lawless badlands of northwestern Pakistan, a rugged and dense mountain range with jagged peaks hard by the Afghanistan border. So even if we succeeded in routing a group called Al Qaeda in Iraq (a very small part of the insurgency, but an effective one that was led by Zarqawi before his death in 2006, and which, although it has sworn allegiance to Bin Laden and he has spoken in support of the group, is not believed to be an official part of Bin Laden’s terrorist network), this obviously would have little, if any, effect on Bin Laden’s plans nor his ability to conduct further terrorist attacks on American soil from his safe haven in Pakistan—a haven that Pakistani president General Pervez Musharraf either doesn’t want to, or can’t by himself end.

CHAPTER 6: AMERICA, UP OR DOWN?

244 I know it has been inculcated in us that America is the greatest nation in the world. One of the clichés that Americans unconsciously embrace is that Americans are free, that we have freedom in America. We utter it without thinking. But when you stop and think about it for a moment, the cliché lacks merit, not because it is untrue, but because of what it implies—that the people of other nations are not free. After all, if we’re just one of a hundred nations that are free, what is there to brag about or even mention? Aren’t the people of Great Britain as free as we are? What about Italy, Germany, France, Spain, Norway, Sweden, Finland, Australia, New Zealand, and a great number of other nations? Aren’t they also as free as we are? Maybe I’m wrong, but I think they are. And I doubt very much that these nations try to distinguish themselves from other nations with this cliché. There are some nations in the world (e.g., Saudi Arabia, Iran, China, Cuba, North Korea, etc.) where the people are not free, but aren’t they in the decided minority?