Above the Law?
1.
Meditate that this came about:
I commend these words to you.
Carve them in your hearts
At home, in the street,
Going to bed, rising,
Repeat them to your children,
Or may your house fall apart,
May illness impede you,
May your children turn their faces from you.
Primo Levi
Auschwitz survivor
Recently, Senator Patrick Leahy, the Senate Judiciary Chairman, spoke of forming a Truth and Reconciliation Commission to investigate the possible crimes of the out-going Bush Administration. When a reporter asked President Obama about this, he said, “My view is also that nobody’s above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen.”
The famed Los Angeles prosecutor Vincent Bugliosi strongly agrees with the new president, “that nobody’s above the law.” In fact, last spring Bugliosi published a book that argues that there were clear instances of wrong doing in the U.S. going to war against Iraq. The title of this impassioned legal argument is The Prosecution of George W. Bush for Murder.
Like any good prosecutor, Bugliosi has an instinct for drama: “The book you are about to read deals with what I believe to be the most serious crime ever committed in American history—the president of this nation, George W. Bush, knowingly and deliberately taking this country to war in Iraq under false pretenses, a war that condemned over 100,000 human beings, including 4,000 young American soldiers, to horrible, violent deaths.” [3]
Bugliosi hopes that the U.S. Attorney General in Washington (now, Erich Holder) or any of the 93 U.S. Attorneys in the federal district courts or even a state attorney general from one of 50 states will take heed of his argument and seek to prosecute the former president for the now almost 5,000 dead U.S. soldiers in Iraq.
According to Bugliosi, the case against Bush would rely on U.S. Code 1117 (conspiracy) and U.S. Code 1111 (murder). “The overriding assumption here has to be that if, in fact, Bush lied to the nation in taking it to war, we all should want to find some lawful way to bring him to justice. That has to be the predisposition among all good [men and women]. It cannot be otherwise.” [91] Here, Bugliosi is quite specific; I wonder if President Obama would agree with the prosecutor.
The definition of murder is “the unlawful killing of a human being with malice aforethought.” Given the months of build-up to the U.S. invasion in March 2003, Bugliosi asserts that premeditation is a given in this case. He believes that “at an absolute minimum, in the absence of a legal justification such as self-defense, Bush’s taking the nation to war would constitute implied malice, that is, an intent to do a highly dangerous act with reckless disregard and indifference to human life, and hence, at least second degree murder in every state, as well as under federal law.” [99]
The crux for Bugliosi is that Bush knowingly distorted the CIA’s 2002 National Intelligence Estimate which declared that Saddam Hussein was not an imminent threat to the United States. Yet, in a speech a week later in Cincinnati in October 2002, Bush stated the just the opposite, that the U.S. had to act now, in self-defense, before it was too late. By Bush falsifying the intelligence report, Bugliosi avers that Bush cannot argue that he was acting in self-defense. Indeed, Bush’s deceitful rhetoric was intended to mobilize the American public’s support for a war that was totally unnecessary.
Many Americans will seek to honor the fallen troops by asserting that they died for freedom or democracy or “our country.” Bugliosi will have none of this sentimentality: “As ugly and grotesque as it is, the fact is that [U.S. soldiers] gave up their lives to further the political interests of Bush, Rove, and Cheney. No political figures in American history ever so shamelessly exploited a war for political advantage as much as these three.” [44]
Professing that he is pained by the deaths of Iraqi civilians, Bugliosi still admits that “I take the reports in the paper of American soldiers being killed in Iraq harder.” [68] I think that many American citizens likewise instinctively take harder the deaths, injuries, impairment, and mental anguish suffered by the U.S. troops. Unlike so many of his fellow citizens, though, Bugliosi locates the root cause of this needless misery: George W. Bush.
Bugliosi dismisses as totally unrealistic the possibility that Bush could be tried for war crimes against the Iraqi people, though attorneys and judges outside the U.S. may have already taken careful note of the precedent involving former Chilean dictator Augusto Pinochet, who was tied up in investigation for several years before his death.
How appropriate it would be for Bush (and Rumsfeld and Rice) to ever be looking over their shoulders both inside the United States and beyond. Imagining the horrible nightmares veterans and their families are sure to endure in the years ahead, Bugliosi declares “the least I can do in return is to put the thought in Bush’s mind for the rest of his life that he may someday be held accountable in a criminal courtroom for all the murders he alone is responsible for.” [157]
While Bugliosi exudes righteous indignation at Bush, he also manages scorn for his fellow citizens, as in this passage: “It is terribly, terribly, terribly scary that this nation is so abysmally and profoundly stupid that it could easily be talked into going into a deadly war with a nation that wasn’t our enemy and as much of a threat to us as you or I.” [246] Last week, after a gathering of people to watch an Arabic film at a local college, a student from an Arab country asked a friend of mine why the American people didn’t rise up against Bush when what he was doing was so wrong.
2.
But for me, a German, it is not quite so simple. In the end, all who did not put up resistance were implicated, entangled in the belief systems of “these” Germans, lending them a hand and sharing in the profits. Among those who “went along,” in the broadest sense of the words, were all who practiced the art of looking away, turning a deaf ear, and keeping silent. There has been much quarreling about collective guilt and responsibility, but my basic feeling is, rather, one of ineradicable shame – the shame of belonging to this people, speaking the language of the concentration camp guards, singing the songs that were also sung in the Hitler Youth and the Company of German Girls. That shame does not become superannuated; it must stay alive.
Dorothee Sölle
German theologian
The following are excerpts from Milton Mayer, They Thought They Were Free: The Germans, 1938-45 (Chicago: University of Chicago Press, 1955).
“What no one seemed to notice was the ever widening gap between the government and the people. And it became always wider…. the whole process of its coming into being, was above all diverting, it provided an excuse not to think…. for people who did not want to think anyway gave us some dreadful, fundamental things to think about…..and kept us so busy with continuous changes and ‘crises’ and so fascinated…..by the machinations of the ‘national enemies,’ without and within, that we had no time to think about these dreadful things that were growing, little by little, all around us…..
“Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted,’ that unless one understood what the whole thing was in principle, what all these ‘little measures’…..must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing…..Each act is worse than the last, but only a little worse. You wait for the next and the next.
“You wait for one great shocking occasion, thinking that others, when such a shock comes, will join you in resisting somehow. You don’t want to act, or even talk, alone….you don’t want to ‘go out of your way to make trouble.’ But the one great shocking occasion, when tens or hundreds or thousands will join with you, never comes.
“That’s the difficulty. The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays. But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves, when everyone is transformed, no one is transformed.
“You have accepted things you would not have accepted five years ago, a year ago, things your father….could never have imagined.”
3.
This would be, first and foremost, a war waged within myself, one where my fears and doubts would come face to face with my conscience, a war to reclaim my humanity and my spiritual freedom. It would also be a war against the system I had come from, a battle against the military machine, the imperial dragon that devours its own soldiers and Iraqi civilians alike for the sake of profits. I had to turn my words into weapons, that speaking out was now my own way to fight.
Camilo Mejia
Iraq war veteran and war resister
Who is going to say the unsayable?
Who is going to press for the prosecution of George W. Bush and Company for murder?
Who is going to stand for law and order?
Who is going to dignify the truth by acting on it?
Who is going to pay practical tribute to Lady Justice?
Who is going to remember what we’ve done in Iraq?
Who is going to patiently recite the facts?
Who is going to tell the tales from the Iraq inferno?
Who is going to repeat these tales to their children?
Who is going to meditate on the photographs?
Who is going to keep alive the shame?
Who is going to bring up issues from Morality 101? Legality 101?
Who is going to count the tears?
Who is going to groan lamentations in the streets?
Who is going to hurl imprecations up at the stately buildings?
Who is going to imagine for even 30 seconds a day George Bush eating chow in a maximum security prison?
Who is going to resist the temptation of silence?
Who is going to risk a little derision, a few guffaws, some insults?
Who is going to haunt the criminals?
Who is going to monitor their comings and goings?
Who is going to envision a ten-year strategy?
Who is going to develop the contingency plans?
Who is going to remove one brick amid the billions of bricks that keep the system together?
Who is going to train citizens in going out of their way to make trouble?
Who is going to insist on follow-up?
Who is going to spend even one minute a day imagining one simple step to take?
Who is going to cultivate optimism of the will?
Who is going to be the courage they wish to see in the world?
Who is going to abandon the sidelines?
Who is going to disturb the cozy peace?
Who is going to stop waiting for someone else to say something first?
Who is going to do something inconsequential about it today and then tomorrow?
Who is going to talk to the guys at the firehouse?
Who is going to bring it up at the neighborhood bar?
Who is going to query the hair stylist?
Who is going to take inspiration from the little mosquito?
Who is going to dare make a scene, raise a ruckus?
Who is going to perform an act greater than Camilo Mejía?
Who is going to remove every single thread from the Emperor’s trembling limbs?