I. The Case for the Prosecution
To see the Bush Faction in the dock -- charged with launching a war of aggression and creating a worldwide gulag of torture and illegal detention -- is of course the fervent dream of millions of people across the globe. Such a sight would seem to provide tangible proof that the ideal of justice cannot be vanquished entirely by the brute force of elite power.
The evidence supporting these charges is mountainous, and growing all the time. What's more, the essentials are undisputed, even by the defendants themselves. In the case of aggression, the public reasons offered by the Bush White House for the invasion of Iraq were even less substantial than those put forth by Adolf Hitler for the invasion of Poland in 1939. And this is true even if you accept the highly disputable notion that the Bush Administration really believed that Saddam Hussein's regime possessed weapons of mass destruction. Indeed, it would be true even if Saddam really did have weapons of mass destruction.
In the Nazis' case, there was at least the pretense of a (faked) direct attack on German territory; not even Hitler dared publicly base his invasion on a mere threat, on the presumption that Germany might be attacked at some point in the future. But even in the best-case scenario, giving the American government the full (and wholly undeserved) benefit of the doubt, the Bush Administration launched a war that has killed more than a million innocent people solely on the basis of a mere threat, from weapons that had never been used against the United States -- and whose existence had not even been proven. If this is a legal, moral justification for war, then every American president of the last half-century has been guilty of a treasonous dereliction of duty for not launching a pre-emptive attack on the Soviet Union, whose actually existing arsenals of nation-destroying weapons were aimed openly and specifically at the United States for decades.
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So the facts of the aggressive war case are not in dispute. And no, the UN resolutions stemming from the 1991 Gulf War are not relevant; nothing in them gave any member nation the right to launch military action unilaterally to enforce the resolutions without the prior approval of the Security Council. In every way, then, the invasion of Iraq was a clear violation of the UN Charter's very clear and specific strictures against aggressive war -- strictures which the United States helped formulate and had publicly subscribed to for almost 60 years at the time of the Iraq invasion. There is no genuine legal basis for denying that the invasion of Iraq constitutes the formal war crime of military aggression, as Arthur Silber, for one, has pointed out in great detail.
The torture case is, if anything, even clearer. According to the laws of the United States, it is simply illegal to order or carry out torture, at any time, under any circumstances whatsoever. Moreover, the question of what constitutes torture is clearly addressed -- and even though Ronald Reagan and Bill Clinton colluded to exempt certain exquisite psychological and indirect tortures devised by the CIA from the law (as Noam Chomsky reminds us), the existing legal threshold for defining torture still falls far, far below the one adopted by the Bush Administration; i.e., anything short of death, organ failure or permanent physical damage. And of course, even these cynical and sinister standards were routinely violated: there have been many deaths -- murders -- as a result of the torture program which no one now denies was established, maintained and closely monitored by the Bush White House.
And again, the accused do not denying employing these practices; on the contrary, they champion them openly, and have long done so, as in the case of Dick Cheney's acknowledgment and praise for waterboarding -- a torture technique that has been prosecuted as a serious crime in American courts for generations, and was regarded, by the American government, as a basis of war crimes charges against Japanese officials following World War II.
Thus, by any understanding of the law -- from the most common-sense reading to the most arcane and convoluted parsing -- it is clear that the capital crime of torture has been committed by the Bush Administration. Any court proceeding would immediately establish this fact.
To sum up: Did the leading members of the Bush Administration instigate and collude in actions that resulted in a war of aggression and the deliberate, systematic infliction of torture on captives? Yes. Do they admit -- even boast -- that these actions occurred? Yes. What defense can they offer then?
II. In Defense of George W. Bush
Faced with prosecution for their admitted deeds, the principals of the Bush Administration would have only one defense: precedent. They would have to show that their actions had been accepted practice in American government for many, many years -- from the very beginning, in fact -- and had never been regarded as prosecutable offenses before. To imprison them now -- or even execute them -- for carrying on the standard policies and practices of bipartisan governance stretching back for generations would surely constitute cruel and unusual punishment. It would be selective prosecution. It would be nothing less than the "criminalization of political differences" -- for the historical record clearly shows that aggression and torture have always been treated in the American system as political implements, tools of political policy, and not as criminal matters.
Thus the Bush defense team would have to put forth a mountain of historical evidence, laying out in great detail the use of military aggression and torture (both directly and by client states under American direction, for American purposes) over the entire course of U.S. history. Naturally, they would focus most of their attention on the decades since World War II, as this would involve institutions, agencies -- and even some of the same people -- that serve as instruments of American policy and practice today; iIt would be easier, and more relevant, to show the continuity with their more immediate bipartisan predecessors. But the older historical material would also be important in setting out the long-established precedents and philosophies in which modern policies are rooted.
It is here that I would want to contribute to the defense. I would gladly act as a lowly researcher for them, sifting through the accumulation of historical fact and insightful analysis provided over the years by such noted writers as Howard Zinn, Noam Chomsky, Arthur Silber, Alfred McCoy, Richard Seymour, Fred Anderson and Andrew Clayton, and far too many more to mention. And beyond these overviews and works of synthesis, there are the innumerable, highly detailed articles, studies, monographs, and full-scale scholarly works produced by historians in every field of specialty: political, economic, legal, cultural, military, and so on.
A war crimes trial of George Bush, Dick Cheney and their chief minions would be a public spectacle of perhaps unprecedented scope. Millions of people all over the world would be riveted to it every day; the American public especially would be hanging on its every word. To mount such a defense, on such a powerful platform, would devastate the myth of American exceptionalism like nothing else imaginable. Horrific atrocity, brutal arrogance, deadly ignorance -- again, by both direct and collateral hand -- would all be brought into the glaring light. The principle of violent domination -- continuous, accepted, celebrated, legitimized, institutionalized -- would stand revealed as a core value, if not the core value, of the American way.
Only through such a spectacular act of non-violent "creative destruction" could we hope to sweep away the false narrative that is drummed into every American from birth until it becomes an integral part of their own self-image and their understanding of the outside world: the false narrative of righteous exceptionalism that underpins and "justifies" the monstrous violence of empire. This myth performs a kind of psychic and moral alchemy in the minds of Americans, transmutating the reality of bloodsoaked murder, repression and suffering into benign acts of "liberation" and "humanitarianism."
Removing these blinders would give us a chance to at least begin effecting genuine change and reform in a system that has poisoned its own people and wrought destruction and chaos around the world. It would not restore "the shining city on the hill" -- which never existed, and never can exist, given the manifold imperfections, confusions, and contradictions of human nature; but it might, just might, clear the ground for the construction of a better polity: more enlightened, more just, more humane. That is a noble endeavor I would be glad to join, whatever form it took -- even if that form happened to be the defense of George W. Bush at a war crimes trial.
Not that I believe Bush and his gang of gilded thugs are innocent; they are not. They are sadistic murderers at the outer reaches of depravity. But neither are they aberrations of the system that has produced them. Rather, they are its quintessence, its exemplars, its inheritors and continuers -- and they have, in turn, bequeathed the core value of violent domination to their successors, who have freely and eagerly embraced it. If the Bush gang stands trial, then the entire system must be put on trial; otherwise, their prosecution would be nothing but a show trial, a scapegoating designed to perpetuate the system while appearing to cauterize and cleanse it of a limited, aberrant evil, as Arthur Silber has argued in his powerful series, "Against Prosecution."
Thus the evils inevitably and inescapably produced by a system of violent domination would go on and on, gaining new strength from the reinvigoration of the national myth that has justified so much horror for so long: "See? We got rid of the bad apples; everything is fine now, the system is good now, we're exceptional again, the hill is shining once more." And the righteous bombs of humanitarian liberation would keep falling on the bodies of innocent people.
But we all know there will be no such trial, and certainly no such defense. As we have seen in the last few months, the American political class and its media sycophants have rallied 'round the flag to defend the system's core values. They have made it abundantly clear that they do not consider torture and military aggression to be criminal offenses when these actions are carried out by the American government. Instead, such things are regarded as affairs of state -- matters of policy and politics, subject to factional quibbling over their execution and extent, perhaps, but certainly not a question of law, or justice, or morality.
And so the system and its horrors keep churning on, regardless of the liberal credentials of its current managers. An overseer of a torture chamber and director of death squads, Stanley McChrystal, has now been put in charge of the "good war" in Afghanistan and its inexorable spread into Pakistan. The war crime in Iraq continues unabated, with an increasingly shattered army of desperate, doped-up, burned-out soldiers still loose in a crumbling, broken land, while vast permanent bases are being expanded to house the tens of thousands who will remain behind even after a still- uncertain "withdrawal" plan is completed. The "disease of permanent war," as Chris Hedges terms the swine flu of militarism that rages so virulently through the imperial system, will keep driving the nation, and the world, to one disaster after the next. As Silber puts it:
Intervention always leads to more intervention: the first intervention leads to unforeseen and uncontrollable consequences, which are then used as the justification for still further intervention. That intervention in turn leads to still more unforeseen and uncontrollable consequences, which are then used as yet another justification for still further intervention. The process can go on indefinitely, and the ultimate consequences are always disastrous in the extreme.
A genuine trial of George W. Bush -- and a genuine defense, which, as outlined above, would lead to an indictment of the entire system -- perhaps could have broken this cycle. But each day's news -- each echo from the charnel houses that sustain the empire's exalted position -- makes it clear that we have not yet supp'd full with horrors.
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