BOOK REVIEW/Donald Gutierrez

The Prosecution of GWB for Murder

The title of Vincent Bugliosi’s The Prosecution of George W. Bush for Murder might at first appear audacious or even outrageous. What is really outrageous, though, is that President Bush and his administration have gotten away with lies and executive actions based on deception massively criminal in character without anyone—until Bugliosi—legally holding Bush to account. That Congress, the media and the public have given Bush a free ride (which infuriates Bugliosi) is not only shockingly true; this societal irresponsibility embodies as well an ethical catastrophe for the nation and the world for which Bugliosi holds Bush ferociously accountable litigiously as to date no one else has.

Bugliosi’s prosectorial qualifications are impressive. He has won 21 out of 22 murder convictions, the most famous, of course, the Manson Case. He has also won 105 out of 106 felony jury cases. To F. Lee Bailey, Bugliosi is “the quintessential prosecutor.” How then does he handle this “case”?

Prosecution operates on two rhetorical levels. First, it projects an intensely personal approach at the reader both compelling but also occasionally off-putting. Bugliosi brings home the horror of losing a son in the war by recounting some horrific account of his death, then asks how you would feel if it were your son. On the other hand, he’ll address the reader as “Hey, Estupido, I’m talking to you!” if one hasn’t got the point of some stricture of Bush that he regards as obviously major. Prosecution attempts to reach as many people as possible with this direct, righteously angry, common-decency strategy which is often effective as polemic, considering the subject and the dramatic nature of his indictment.

On a more formal yet accessible level of discourse, Bugliosi presents a methodical, detailed account of Bush’s reasons and alleged lies to justify starting the war, then provides an imaginary court prosecution of former President Bush with a crucial definition of the charge of murder as it relates to Bush’s initiating the war on Iraq. This is the legal core of Prosecution, supplemented by other crucial concerns such as the seriousness of Bush’s crimes, the various costs of the war, what kind of judgment should be rendered Bush, Bush’s terrible performance in combating terrorism, Bush not being held responsible for 9/11 occurring on his watch but, instead, heroizing himself by transforming that event into instigating a “War on Terrorism,” Dick Cheney and Condoleezza Rice as Bush’s co-conspirators in murder, and Bugliosi’s sharp disapproval of Congress, the media and the public for accepting Bush’s war.

Bugliosi presents Bush’s chief initial reasons for attacking Iraq: Saddam Hussein’s alleged Weapons of Mass Destruction and his tie-in with Bin Laden in regard to 9/11. Bush insisted that Saddam’s WMDs constituted an imminent threat to the United States despite the fact, as Bugliosi observes, that 16 American intelligence agencies stated Saddam was not a threat. Further, a White House White Paper misrepresented the State Department’s Intelligence and Research Bureau which claimed that Iraq was not moving forward on nuclear-arms research. There is also the demonstrated Uranium-from-Niger lie and the 2002 “Downing-Street Memo” which indicated that the intelligence was “being fixed around the policy” by the White House.

Bugliosi continues examining Bush’s lies but enough serious ones have been cited here to allow us to consider Bugliosi’s legal procedure for indicting Bush for murder. Bush, Bugliosi claims, “took this nation to war under false pretenses” (p. 116). The President’s lies led to the death of thousands of American soldiers and many thousands of Iraqi civilians. In the most riveting part of Prosecution, Bugliosi sets up his idea of Bush’s defense against Bugliosi’s charges and then, in a formidably entrapping style of prosectorial interrogation, proceeds to demolish it. Bush’s argument of self-defense (based on his claim that he was defending America from imminent Iraqi attack) can, Bugliosi asserts, be disproved by carefully demonstrating his lies and contradictions under relentlessly logical interrogation. And if Bush next claimed that Congress in 2002 authorized the war, a prosecutor would assert that “consent is not a defense to the crime of murder” (92). Further, “fraud /Bush’s lies to justify attacking Iraq/ vitiates consent.”

Bugliosi next attempts to show how all this prosectorial demonstration of lying and misrepresentation by Bush constitute murder. The prosecution would need to prove that Bush did harbor “a criminal state of mind” (94), and, by Bugliosi’s line of argument, this would be proved by Bush telling lies that led to the death of American soldiers. Did Bush want those deaths? No, but he committed actions making them all but unavoidable by declaring a pre-emptive—not preventive—war, a crucial distinction to a significant degree underlined by Bush’s false WMDs defense claim.

At this point, Bugliosi examines the legal character of murder and relates it to defendant Bush.

For the legal charge of murder to be valid, states Bugliosi, it must contain two elements: “the prohibited act, referred to in the law as actus reus, to be a crime. This act has to be accompanied by mens rea, criminal intent. ... In this case, the ‘act’ by Bush would be ordering his military to invade Iraq with American soldiers, 4000 of whom have already died because of the war. ... The necessary intent that would have to be shown, as indicated, is malice aforethought, satisfied if Bush either intended to kill the soldiers by ordering them to war, or he started the war with reckless and wanton disregard for the consequences and indifference to human life” (93).

Bush’s defense would be that he was acting in (national) self-defense. But, as his self-contradicting chain of lies would reveal that this was totally untrue, he would, asserts Bugliosi, be shown to have a “criminal state of mind” and thus to be guilty of murder. And if his defense claimed that Bush would never have wished American soldiers to be killed in a war, the (Bugliosi) prosecution would argue that ordering Americans into a war (especially an illegal and unjust one) would inevitably result in American military deaths, thus sealing the case against Bush.

Bugliosi points out, further, that Bush could be liable to what in law is called the felony-murder rule whereby certain felonies are “so inherently dangerous, in and of themselves, and the risk of death was so high” (97) that a law was needed indicating first degree murder, “even though there was no malice,” a ruling that can be administered, according to Bugliosi, “even where the defendant is not the killer”(98).

Bugliosi, not a prosecutor likely to stop half-way, then states that Bush could be indicted for second-degree murder, which carries a life sentence. But he stunningly pushes the legal possibilities to their climax: “Bush’s alleged crime is so prodigious and on such a grand scale that it would greatly dishonor those in their graves who paid the ultimate price because of it if he were not to pay the ultimate penalty. This is why all attempts should be made to prosecute him for first degree murder” (99). The prosecution of Bush could (should, he argues) be for first-degree murder for which one could receive the death penalty. Moreover, Bugliosi asserts that “most first-degree murder cases are based on circumstantial evidence” (100)—there need not be a smoking gun (or a mushroom cloud). Finally, proving that Bush did not act in self-defense declaring war on Iraq requires proof only beyond a reasonable, not all, doubt.

Is Bugliosi’s “prosecution” of Bush merely a vindictive fantasy lacking serious grounds for pursuing legal justice? Certainly not according to Bugliosi who, after detailing Bush’s lies in office, further attempts to strengthen his case by discussing some terrible consequences of Bush’s war. As of 2007, the money for the war could have financed health for all uninsured Americans for perhaps 30 years. Further, most of the world loathes or fears Bush, and thus, to some extent, the country. Consequently, according to a 2006 National Intelligence Estimate Report, the United States is less safe under Bush today than it was before the war. American casualties, as Bugliosi repeatedly states, are well over 4000. He mentions Iraqi casualties as being set at somewhat over 100,000, generally considered a conservative estimation (he fails to mention the millions of Iraqis dislocated from their homes and country). Of course the loss of many billions of dollars for America’s social needs (health care, education, bridges, etc.) is another area of outrageous negligence caused by the war and occupation.

Bugliosi suggests effective venues in which Bush could be tried, the best being in a federal court, the other in a state court, because soldiers killed in the war came from every state in the nation, thus giving any state attorney the right to indict Bush. If Bush’s indictment still seems improbable, Bugliosi reminds us that General Pinochet was finally indicted at 89 by his country in 2004. Bugliosi, moreover, cannily remarks that in any trial proceeding all potential jurors be asked under oath whether trying a President of the United States would be acceptable to them; if not, they would be dismissed from the jury.

Prosecution contains a “Photographic Brief,” seven pages of photos divided into two shockingly contrastive sections. The first shows both Americans and Iraqis ravaged with grief for family and friends killed or wounded in the war; the second exhibits eight photos taken from 2002 on of Bush broadly smiling, grinning from ear to ear, looking like he’s having (as he has himself declared) the time of his life. Bugliosi repeatedly presses Bush’s insensitive personal happiness on the reader, usually in contrastive juxtaposition to such incidents as one soldier in Iraq writing to his folks to let them know he’s okay and that he worries about them, only the next day to be found dead, decapitated, and evidence indicating he had been tortured. Prosecution also discusses in detail that Bush vacationed 908 days, or over one-third of his total time (so far) as president. While other American presidents, whatever their own war-mongering ( an important consideration Bugliosi ignores) are seen even in private looking grim and concerned about a given war during their watch, Bush apparently is mainly grieved because, for example, the White House running track is not long enough for his workout.

Prosecution has its flaws. Bugliosi’s righteous if pugnacious anger might occasionally seem excessive to some; he calls Bush, for example, a son of a bitch and a coward and the American public the living dead for not responding to Bush-Cheney-Rice’s malfeasance. He also white-washes some former presidents which makes Bush look even worse (Nixon’s secret bombing of Cambodia is not mentioned). Many of his quotes lack a source listing and there is no bibliography (on the other hand, Prosecution includes 74 pages of notes—one 10 pages long—and many of them important to key ideas in his legal, prosectorial and polemical argumentation). And Bugliosi can be repetitive to a fault, but then incremental repetition is how a good prosecutor proceeds, and Bugliosi is clearly a formidably good prosecutor..

Nevertheless, actualizing the prosecution of President Bush could be very difficult. Enormous institutional pressures would surely be brought to bear—relayed through the Supreme Court, Congress, the corporatized media, think tanks and so on—to prevent this extraordinary legal action, despite possibly a sizable number of Americans being for it. Bush, moreover, could (and probably would) either be pardoned by President-Elect Obama or would pardon himself—or try to. The pro-Bush forces would, falsely but energetically, claim that such an indictment would seriously denigrate the office of the American presidency itself, using that prestigious shield to defend a felonious president.

It is momentous that Vincent Bugliosi has thrust this bold, forcefully and cogently argued “case” into the public arena. Prosecuting a former President Bush could now become a potent seed in the American mind. And who knows what young, morally inflamed future state or federal attorney might one day take up the challenge of imposing justice on George W. Bush — and carry it through?

Donald K. Gutierrez is professor emeritus of English at Western New Mexico University. Email A version of this review also appeared in The Humanist Society of New Mexico Newsletter.

From The Progressive Populist, December 15, 2008

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