A Necessary and Useful Presidential Pardon

In a recent video interview with Democracy Now! (soon to be published in its entirety), former U.S. counterterrorism czar Richard Clarke declared that members of the Bush administration "probably" committed war crimes.  Well, la-ti-da!  So what?  Why should we care about whether on not members of the Bush administration committed war crimes under international law?

There's no international law that applies to the United States.  The U.S.A. is not a signatory member of the International Criminal Court (ICC), and the 2002 American Service-Members' Protection Act (ASPA) authorizes the use of force to free American military personnel and political leaders from the Hague if arrested for any offense whatsoever.  It's sometimes referred to as the "Hague Invasion Act" with grim jocularity.

I used to read a lot of science fiction -  tons of it.  One of my favorite authors when I was a young man was Jack Vance.  His sci-fi novels often involved crimes in various forms occurring throughout a universe of civilized planets, and, in at least one series of books, he posited a criminal part of the universe where what he called "galactic law" didn't apply.  He called it "The Beyond" (as in "beyond the reach of the law").  Writing about this idea, he penned the following the aphorism which has always stuck with me: "The law won't go where enforcement won't follow."  International law does not apply to the United States, which essentially means that there is no international law in any meaningful sense when the most powerful global actor can ignore it.

We don't need international law to hold members of the Bush administration accountable.  We have prosaic American law.  It's a federal offense to conspire to commit fraud against the United States.  It's on the books.

High-level members of the Bush Administration acted in concert to falsely convince the American public and the United States Congress that Saddam Hussein's Iraq posed an imminent threat to the national security of the United States, and they created the false impression that he was linked to al-Qaeda.  News accounts of the time are chock-full of quotes from President Bush himself saying that the invasion and subsequent occupation of Iraq were vital components of "the war on terror" - his own words.  What is the war on terror?  It's the 2001 Authorization for the Use of Force against Terrorists (AUMF), which declared its purpose was: "To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States."

Remember President Bush's absurdly macho posturing on the flight deck of the U.S.S. Abraham Lincoln, where he landed in a fighter jet and got out wearing a pilot's one-piece jumper?  The time when he proclaimed "mission accomplished?"  (Yeah, I know: He didn't say the words.  He just stood in front of a giant banner that declared it for him.)  Well, here's a cherry quote from the speech he gave, after he landed, to the sailors on board the Lincoln: "The battle of Iraq is one victory in a war on terror that began on September 11th, 2001, and still goes on."

It's simply another instance of the false conflation of an imaginary threat - a fraudulent claim of a threat - from Saddam Hussein's Iraq and a real one from al-Qaeda that President Bush had to maintain as his justification for the invasion.

The formal administration case was that Saddam Hussein was a real threat to the United States because he (allegedly) possessed weapons of mass destruction (WMD) that he would give to terrorists for use against the United States.  The Bush administration had ample reason to believe it was untrue for two reasons: First of all, high-level members of the Bush cabinet knew Saddam Hussein could not threaten the United States because he had been disarmed.  They knew he had no WMD to give to terrorists.  Secondly, al-Qaeda was an organization motivated by religious extremism.  They hated Saddam Hussein.  They considered him an atheist, and, to them - so extreme is their religious zealotry, atheists deserve no less than immediate executions.  Saddam Hussein would not give such people weapons they might very well use against him, and probably would.

When it came to an alleged arsenal of WMD in Iraq, senior Bush administration officials made public pronouncements in 2001 to say (accurately) that Saddam Hussein was no threat to anyone.  Secretary of State Colin Powell and National Security Adviser Condoleezza Rice both made public statements to such effect in that time period.  Within a space of 18 months or so, they would be making exactly the opposite claims that were untrue.  First they were right then they were wrong about the very same subject.  What changed when the facts didn't?

There's a very short video clip on YouTube, called "Colin Powell and Condoleezza Rice Tell the Truth about Iraq."  It's a segment from a John Pilger movie, "Breaking the Silence" (full-length video online):

Colin Powell: "He has not developed any significant capability with respect to weapons of mass destruction. He is unable to project conventional power against his neighbors" (at a press conference in Cairo, Egypt, 24 February 2001).

Condoleezza Rice: "We are able to keep arms from him. His military forces have not been rebuilt" (on CNN's "Late Edition With Wolf Blitzer," speaking with guest host, John King, on 29 July 2001).

I particularly remember later, when Condoleezza Rice was asked about the basis for justifying the invasion of Iraq after we learned there were no WMD, she replied (paraphrase), "Before the invasion, everyone thought there were WMD," referring to international opinion.  Defending oneself from a charge of fraud does not consist of justifying a lie by saying it's what everyone else thought.  It's what she knew, and she knew that Saddam Hussein was disarmed and therefore could not be a threat.

All the Bush White House needed were mere remnants of WMD, and they didn't even find those.  If they found a tiny amount, they would be able to use that as an excuse: "See?  We were right.  Saddam Hussein was a threat."  Even if the amount discovered was not enough to pose a threat, it would have gotten them off the hook.  They didn't even find that much.

I'm sure they believed they would find some WMD, but that doesn't justify misleading the public into thinking that whatever small amount they would find would pose an imminent threat to the United States and would justify sacrificing thousands of American lives in Iraq.  Moreover, even if they believed there were some small amounts of WMD in Iraq, they didn't just say that they believed it.  They said that they knew it: "There is no doubt," even though the 2002 National Intelligence Estimate contained accurate, caveated dissent to say that Hussein was disarmed from inside the U.S. intelligence community.

There is a very robust case to be made that the Bush White House knowingly misled the United States into an unnecessary war, but Eric Holder will not investigate.  When politics and the law collide.  "Peace before justice."  Yadda yadda....

Let's say I'm right about the fraud and imagine if Holder began an investigation into it, and it progressed toward indictments.  The country would erupt into chaos.  Things would come to blows in the chambers of Congress.  It could get even worse.  We're talking about Republicans here.  They were almost ready to take up arms just for losing the election of 2008.

That still doesn't excuse ignoring what is really a vast crime.  The estimates I find generally report that 4,486 American military casualties resulted from the invasion and occupation of Iraq.  The cost in Iraqi lives is staggering, even at the low end of estimates.  Bush, Cheney and Rumsfeld deserve to be hanged, and I'm against the death penalty.

Other Americans in history have deserved hanging for their crimes against the United States but weren't, and their crimes were worse, given the scale of harm to the U.S. that their actions caused.  I'm thinking specifically of Jefferson Davis and Robert E. Lee.

Presidents Abraham Lincoln and Andrew Johnson pardoned the rebels of the Civil War, and what happened when they did that was that they identified a crime that required pardoning.  I think that's the least President Obama should do for the crime of the Bush White House to defraud the United States with the knowing manufacture of a false case for war in Iraq.  Even without indictments, there's precedent.  President Ford pardoned President Nixon even though no indictment had been issued.

There's still a problem with that, though.  In most states, though I think not all, there is a crime called "felony murder," which generally states that any death resulting from the commission of a felony is murder even if murder wasn't intended - like if it can be proved that a security guard suffered a heart attack caused by the stress of a bank robbery, which is a felony.  The guard's death would be legally considered murder and the bank robbers, even though they never intended the guard's death, would be tried for it in a state court.  I think that the number of states with felony murder laws is 36, though I'm not sure about the precise number.  Still, it's the law in most states.

So if Bush, Cheney, Rumsfeld, Powell and Rice (and who knows who else) were pardoned for the felony of conspiring to defraud the United States, I'm pretty sure that they would then be potentially exposed to charges of felony murder, though perhaps a presidential pardon would preclude that outcome.

I just don't see the possibility as sufficient cause to ignore a stinking offense.  Pardoning them is the least President Obama should do.  It would identify an crime when ignoring it suborns the rule of law.

Let the GOP explode.  It's not like they can really take things further.  They explode over everything anyway.  They're screaming for Obama's head because they just don't like him.  He should give them more reason because already he has nothing to lose.

I really don't want revenge on President Bush and his colleagues.  I just want it acknowledged that what they did was wrong.  A terrible crime has occurred, and President Obama is ignoring it in the name of comity and progress on the rest of his agenda.  Little gratitude he's getting for that, and little progress.  If Republicans manage to gain control of both chambers of Congress, then maybe he might consider it an arrow in his quiver.  "You want to impeach me?  You want to hound me for the rest of my days?  Then maybe I'll pardon Bush."  That's a nice little threat.