One wonders if former President George W. Bush actually thinks he will be politically resurrected -- and absolved of all his crimes -- following a tide of Republican electoral victories last week and the publication of his memoir this week. Already there has been a good deal of commentary about the timing of the book's release. Theories range from Bush not wanting to hurt the electoral chances of his fellow party members during campaign season, to Bush anticipating and then capitalizing on a Republican landslide, to the most sophisticated theory of all: by Bush's publishing date (November 9) the statute of limitations will have ended on prosecuting the CIA's destruction of torture tapes, something that has been under investigation by Special Prosecutor John Durham with no legal action yet announced. Adding to this speculation are questions over why Bush would admit in his book to authorizing the torture of Khalid Sheikh Mohammed in March, 2003. But rather than get bogged down in speculative legal theories about whether the former president can be prosecuted for violating U.S. and international laws on torture, allow me to focus on a simple fact that is consistently overlooked: there is no statute of limitations for murder. Bush and his fellow co-conspirators are criminally liable for murder by taking our troops to war under false pretenses, resulting in the deaths of over 4,000 American soldiers.
The first lawyer to make this proposition was legendary prosecutor Vincent Bugliosi, in his bestselling book, The Prosecution of George W. Bush for Murder. When I read in his book that any attorney general or district attorney could prosecute Bush for this crime in a state court, I took up his challenge -- as a candidate for attorney general in Vermont -- and then wrote about it in my own political memoir, The People v Bush: One Lawyer's Campaign to Bring the President to Justice and the National Grassroots Movement She's Encountered Along the Way (Chelsea Green, 2010).
I was ignored by the mainstream media. But I took solace in enthusiastic endorsements from authors like Naomi Wolf, Glenn Greenwald and Howard Zinn -- with Zinn writing just weeks before his death that I was trying to "awaken the conscience of the nation," with a "clarion call for the people to confront the crimes of government, for democracy to come alive." In fact, as I pointed out in the book, every effort to hold Bush accountable has been incremental, starting with prosecutor Elizabeth de la Vega's call for prosecuting him on fraud charges for tricking us into war, and a national impeachment movement which turned to a prosecution movement after impeachment was squashed by Democratic party leaders intent on winning elections. Next came Bugliosi's book on murder and other books on war crimes, the authors all coming together at a conference on "Planning for the Prosecution of High Level American War Criminals" sponsored by Dean Larry Velvel at the Massachusetts School of Law in September, 2008. Out of this was born the Robert Justice Jackson Steering Committee of lawyers and journalists -- of which I am a part -- committed to prosecuting war criminals on the principles established at the Nuremberg trials.
But of all these efforts, the case for prosecuting Bush on murder in a state court could have the best chance precisely because the Feds -- including our "I prefer to look forward, not backward" president -- show no inclination of pursuing prosecutions and certainly none that would implicate the CIA, the Bush White House or its enablers, Justice Department lawyers, John Yoo and Jay Bybee. As Dean Velvel has so aptly put it, "Trial for murder in state courts... is the lawful and necessary counterweight to what has become the federal monster the framers so desperately wanted to avoid."
All that's required to move prosecution forward is education - and popular will. Initially, people have a hard time accepting the mere proposition that a former president is no longer immune from prosecution once he leaves office. But here's a little history lesson: President Gerald Ford pardoned Richard Nixon for obstruction of justice during the Watergate scandal. Otherwise, Nixon would have ended up behind bars.
As for Bush, I invite you to go to the "How to Prosecute a President" section on my website under Frequently Asked Questions. Here are a few abbreviated excerpts:
Q: What is the evidence to convict Bush of murder?
A: Bush's lies to the American people on television on October 7, 2002, when he claimed, shortly before seeking Congressional support for his Iraq war, that Saddam Hussein was a "great danger to our nation." (The answer goes on to point out that only six days earlier, Bush's own intelligence organizations had told him in a classified report that Saddam Hussein was not an imminent threat.) In short, Bush was misleading innocent American soldiers into war.
Q: How can Bush be treated as a criminal if what he did in Iraq had the consent of Congress?
A: Fraud vitiates consent. Bush led Congress into the war under false pretenses, as described above, thereby nullifying its consent.
Q: What are the legal theories conferring jurisdiction to try Bush in a state court?
A: Conspiracy to Commit Murder: This crime does not require... the death of an individual, whether in Vermont or any other state. All that is needed is an agreement between two or more people to carry out the war in Iraq and an "overt act" in the state to "further the object of the conspiracy." That would include Bush's lies outside of any given state, which were carried by radio and television straight into the homes and cars of the American people, including into the state where Bush would be prosecuted.
Q: If you are charging murder, how can you show intent?
A: There are two types of malice aforethought: express and implied. Implied malice does not require an intent to kill. It simply requires a showing that Bush intended to do an inherently dangerous act with wanton and reckless disregard for the consequences and an indifference to human life. This state of mind is certainly satisfied by Bush taking this nation into a deadly war.
Q: What defense does Bush have for the crime of murder?
A: Bush's only defense would be... that he took this nation to war in self defense -- i.e. his so-called preemptive strike. But because evidence shows that Saddam Hussein was not a threat to our national security, and because Bush, knowing that, nonetheless sent troops to their deaths under false pretenses, Bush had no legitimate reason to invade Iraq, and therefore cannot persuasively argue that his defense was self defense.
That's just a snapshot. There are many more legal sophistications described in the FAQ's. My book, meanwhile, goes one step further in building the case against Bush by showing how the crime of torture can be folded in to the crime of murder. How? The early acts of torture committed by the CIA on detainees seized in the early days of the war in Afghanistan in 2001 and 2002 were not designed to get actionable intelligence; instead, they were committed to strengthen Bush's flimsy pretext for war -- by getting false confessions from detainees about nonexistent links to Al Qaeda, Saddam Hussein, and 9/11. As Paul Krugman put it in a New York Times blog, "So it [the Bush administration] tortured people to make them confess to the nonexistent link. There's a word for this: it's evil." And what can be more evil than murder whether it be murder of tortured individuals for spurious reasons (at least 100 have died from torture) or intent to send American soldiers to war on false pretenses?
If you want to help in this educational process, call your local bookstore and let them know that my publisher is offering a special deal, in return for placing The People v Bush next to Bush's Decision Points. There is also a growing accountability movement that allows for pro-democracy people to find each other and take action. You can find an appendix of groups dedicated to accountability in People v Bush, and I encourage you to check out the DeclarationOfAccountability.com website. It takes a village -- and a global one at that -- to reverse the tide of lawlessness in this country. Only when we join together and insist that enough is enough will we be put George W. Bush and his co-conspirators in their place: out of the bookstores and behind bars, where they belong.
Charlotte Dennett is a lawyer, investigative journalist, and author of The People v Bush: One Lawyer's Campaign to Bring the President to Justice and the National Grassroots Movement She's Encountered Along the Way. (Chelsea Green, 2010) For more information, go to www.chardennett.org