And Up On Rocinante, Don Bugliosi

Here comes Vincent Bugliosi again, this time with a book called The Prosecution of George W. Bush for Murder. One thing I have to give the guy, he does not mince words.

Part of the self-promo for his new opus have been a couple of teaser posts on The Huffington where he hyperventilates about the bad habit of the mainstream press in laying out the fundamentals of a criminal case against Bush and then "turning the page" or "going on to the next paragraph," unlike Vince, who will stay with the subject. He will not simply go on to the next paragraph, not this dogged, relentless, maniacally thorough former L.A. District Attorney. No, he'll go on to the next ten or fifteen or 15,000 paragraphs and write a whole book about a hypothetical murder case which will never happen, which makes him, what? More authentic? Serious where other people are just screwing around?

If I hadn't read all the predicates for such a case a thousand times already, I would probably read the book. I know that George W. Bush misled the country into war. I know that he knew the evidence for WMD in Iraq was pretty sketchy at the point he ordered the invasion. I know that Bush suddenly and surprisingly gave Saddam & Sons 48 hours to clear out of Baghdad in order to bring the invasion under another covering rationale of the Congressional AUMF and the "regime change" mandate of an earlier resolution passed when Bill Clinton was President. I know these things indicate "consciousness of guilt," and that Bush was already nervously looking down the line to see if he had his ass covered against a war crimes charge.

But Bugliosi's book is still dumb. I say that without actually reading very much of it, so take the opinion for what it's worth. Bugliosi's basic premise is that Bush lied the nation into war and therefore the deaths of over 4,000 American soldiers and 100,000 Iraqis (his number) are murders which can be charged against the President of the United States. I don't know how Bugliosi handles little details like the doctrine of "sovereign immunity," which essentially shields public officials from liability for acts performed in an "administrative capacity," you know, like being President and Commander in Chief and ordering an invasion based on something called an Authorization for Use of Military Force which a compliant, 9/11-spooked Congress, Republicans and Democrats alike, were only too glad to give Bush.

Since he's calling it "murder," I assume that Bugliosi is talking about a statute such as California's Penal Code Sec. 187, " (a) Murder is the unlawful killing of a human being, or a fetus..." which requires "intent" as an element of the crime. So Vince would have to persuade his jury that Bush intended to kill the 4,000+ American soldiers. Now, there are different ways to do that, as anyone who has been to law school becomes aware from all the hypotheticals that law profs use to pass the time during their Socratic exchanges with bored students. Suppose an anarchist is walking down the street with a bomb, the fuse lit (in the diagram, the "bomb" is always round and black, about the size of a bowling ball), and he tosses it into an open window. The anarchist doesn't know whether anyone is in the building, and "can't see into the building." (That last part is always thrown in.) Three people are blown up. Is the anarchist guilty of murder? The defense will say, well, he didn't "intend" to kill any specific person, that he could see, anyway; he just intended to throw a bomb with a lighted fuse through a window, not knowing whether anyone was home or not.

Let's just go to the answer: yes, he can be prosecuted for intentional homicide. It's common sense, isn't it? If you go around throwing bombs, it's completely foreseeable that you're going to kill someone, and that's good enough for intent. The state is not going to let you off because of some argument based on philosophical, semantic baloney. So my guess is that Bugliosi would use similar reasoning to satisfy the "intent" requirement for Bush's hypothetical murders. If you lie the country into a pointless war, it's completely foreseeable that lots of people are going to die unnecessarily. Ergo, in the same way as the anarchist, Bush intended to kill people.

The same common sense tells you that approach isn't going to work. It may be dramatic, it may seem forceful and "principled," but it's silly. The case would never get to a jury.

Now, Bugliosi might have turned his prosecutorial talent and prodigious capacity for research to misprisions of office which might, indeed, result in successful prosecutions of Bush for felonies, such as death under torture of detainees in U.S. custody. Sovereign immunity will not save anyone from prosecution for violations of criminal statutes which are not excused by "administrative discretion," not at all. Indeed, the purpose of such war crimes statutes is to constrain U.S. officials in the exercise of their governmental duties. I suspect, however, that such a real case is not Bugliosi's kind of action. He made his rep busting guys like Charles Manson for violations of California Penal Code Sec. 187, and in a hundred other cases where the evidence was in his favor, with the full, august power of the state behind him.

But one thing of which I'm fairly confident: Vincent Bugliosi cannot claim among his career laurels the successful prosecution of a United States President for "murder" based on conduct of a war, any war, at any time. Bush's lawyers would argue, as Bush has done, that getting rid of Saddam Hussein was a good thing for the world, an argument the bomb-throwing anarchist could make only in the event of an amazing coincidence. And while Bugliosi didn't stop after criticizing Bush for misleading us into war, and he went on to the next paragraph, he kept writing for the same reason the pundits complain and never do anything: to make a buck. So please spare us the self-glorification in your lonely, quixotic quest. Anyway, maybe the ultimate responsibility lies with the American public for putting this mendacious bumbler in office. Or the Supreme Court, for appointing him in 2000. Oh wait, you already did that. Your case against the Supreme Court in None Dare Call It Treason (no one dares except you, of course). How's that case coming?