Ten years after the invasion of Iraq, it is astonishing in a nation dedicated to the rule of law that every aspect of the war has been debated except the relevant law.
To be sure, a vast array of articles, books and films have documented how pre-war intelligence was "manipulated" or "misrepresented" or "twisted" or "cherry-picked" or "fixed around the policy," and how the Bush Administration's inadequate planning produced a "fiasco," a "blunder," and a "disaster" -- terms used to convey the sinister nature and catastrophic effect of White House miscalculations without actually accusing anyone of anything so incriminating as a felony.
Two notable exceptions are former Los Angeles prosecutor Vincent Bugliosi's book, "The Prosecution of George W. Bush for Murder," which encountered a virtual boycott by the major news media when published in 2008, and "United States v. George W. Bush et al.," by Elizabeth de la Vega, a former Assistant U.S Attorney who meticulously presents the case for criminal fraud under a little-known federal statute that does not require monetary loss by the victim as a condition for conviction. Both books rest their case on proof of deliberate deception by the President and members of his war cabinet -- not an easy hurdle to overcome in a criminal trial, which requires proof beyond a reasonable doubt.
Intentional killings based on a mistake are not accidents... if the mistake was predicated on an unreasonable belief about the justification for the killing.
Contrary to common belief, however, an American president can be found guilty of criminal conduct without proof of the corrupt state of mind of the deliberate liar or the malignant motives of Nazis on trial at Nuremberg. The criminal mind also encompasses the all-too-common consciousness of human beings acting carelessly in deciding to kill other human beings, however justified their conduct may seem in their own eyes.
On the tenth anniversary of the invasion, the only truly serious question about the war is whether President George W. Bush and those who participated in the decision to invade Iraq did anything illegal or unconstitutional or criminal.
To raise such a question about a war initiated by own's own country is always "a vocation of agony," as Martin Luther King, Jr. said of the war in Vietnam when he finally chose in 1967 to break his silence about the conflict. Whatever the reasons for avoiding the Iraq question, whether it is President Obama's understandable fear of further polarizing a sorely divided nation, or out of respect for the 4,422 Americans who gave their lives fighting for what they believed was a just cause, or because the legal issues are too big or too difficult, we must finally say about Iraq what Dr. King said about Vietnam. "We must speak with all the humility that is appropriate to our limited vision, but we must speak."
The whole litany of excuses for the catastrophe in Iraq has been recited in the language of mistake and misadventure, as if the war were a tragic accident, like a colossal train wreck caused by an act of God.
Intentional killings based on a mistake are not accidents, however, if the mistake was predicated on an unreasonable belief about the justification for the killing. This is the case whether the person on trial is a police officer who killed an innocent citizen in the mistaken belief that the suspect had a gun and presented a lethal threat, or a president who ordered the invasion of Iraq in the mistaken belief that Saddam Hussein possessed WMDs that posed a threat to America's national security.
If a police officer's belief that his victim posed a deadly threat was not only wrong, but unreasonable, in the sense that a prudent police officer exercising due diligence in similar circumstances would not have fired his weapon, the killing constitutes criminal homicide. There is considerable disagreement among the courts and legal commentators about whether the homicide is murder or is to be treated more leniently, either as voluntary manslaughter or the lesser offense of negligent homicide, but there is universal agreement that carelessness in the use of deadly force is criminal.
What did the President know and when did he know it? Wrong question. The proper question is: What should a reasonably prudent president have known about the legal justification for invading Iraq and why didn't the President know it?
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We are so used to war and the threat of war as a legitimate adjunct of foreign policy that we easily lose sight of the reality that war consists of acts which, if performed by a private citizen or organization, would constitute serious felonies: mass murder, assaults with deadly weapons, maiming, arson, kidnaping, and the malicious destruction of property. The law immunizes political leaders from criminal liability so long as the war is legally justified. As a matter of international law, this generally means in compliance with the U.N. Charter. In terms of domestic law, it means in compliance with the U.S. Consitution, which requires either a declaration of war or a congressional authorization for the use of military force.
A careful reading of the Authorization for the Use of Force adopted by large bipartisan majorities in both the House and Senate shows the congressional authorization was hardly the "blank check" the news media portrayed it as. Congress limited the President's use of military force against Iraq by authorizing war only to:
(1) defend the national security of the United States against the continuing threat posed by Iraq, and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq."
The use of the word "and" after the first paragraph is critical. While Congress did not require an imminent or immediate threat, it was not prepared to authorize the President to go to war over a violation of a Security Council Resolution involving WMDs unless there was also some likelihood that if left unchecked, Saddam would present a "continuing threat" of using those weapons against the United States in the foreseeable future.
In fact, there was no continuing threat because Saddam did not actually possess any WMDs. Nor were there reasonable grounds to believe at the time of the invasion that Saddam Hussein presented such a threat. The October 2002 National Intelligence Estimate (pdf), prepared for the President by the CIA and other intelligence agencies and made available to him five months before the invasion, made clear that while there were reasonable grounds to believe that "Baghdad has chemical and biological weapons," Saddam would not use them against the United States unless Iraq were attacked by us or threatened with an "imminent or unavoidable" attack.
The NIE, originally classified as Top Secret and released to the public in July 2003, contained this Key Judgment: "Baghdad for now appears to be drawing a line short of conducting terrorist attacks with conventional or CBW [chemical and biological warfare] against the United States, fearing that exposure of Iraq involvement would provide Washington a stronger case for making war. Iraq probably would attempt clandestine attacks against the US Homeland if Baghdad feared [that] an attack that threatened the survival of the regime were imminent or unavoidable, or possibly for revenge."
In other words, a reasonably prudent president would have known from reading the NIE that as long as the United States did not attack or threaten to attack, Iraq posed no continuing threat to the United States, as the congressional authorization required. A reasonable president therefore would have known that invading Iraq would have been unconstitutional.
If President Bush knew he had no constitutional authority to go to war, then he knowingly broke the law and a properly instructed jury would have little difficulty in finding him guilty of murder. Even if he was not conscious of any wrongdoing, which seems more likely, a jury would still be warranted in finding him guilty, at the very least, of criminally negligent homicide if it found that his ignorance constituted a failure to perform the duties of his office with due diligence.
The mother whose dead body was found in the bombed ruins of Baghdad, holding her baby so tight they could not be pried apart and had to be buried together, can no longer be dismissed as "collateral damage." That mother and child, and the more than 3,000 Iraqi civilians killed directly by U.S. bombs and artillery fire in the first month alone, as well as the Iraqi troops killed while defending their country against an arguably unlawful and unreasonable attack, may have been victims of criminal homicide.
Without criminal trials, we will never know. The law, Justice Holmes reminded us, is nothing more than a prediction of how courts will rule in particular cases, and in cases involving jury trial, we should add, a prediction of what jurors will decide in applying the law to the facts. Until we have court decisions and jury verdicts, statements about the legality or constitutionality or criminality of the war in Iraq, or enhanced interrogations, or targeted killings, or the "war on terror" itself, will remain on the Opinion Page and continue to elude even the judgment of history.