By Morton Mecklosky
MECKLOSKY: You’re listening to WUSB here at Stony Brook, and I have Francis A. Boyle, Professor of Law. I just had Vincent Bugliosi on talking about his book, The Prosecution of George W. Bush for Murder. He’s a significant prosecutor. I think he got the case against Manson. What’s your sense of the legality and presenting the case against the President for murder.
BOYLE: Right Mort. I’d been working on this myself for the last several weeks with people in Maine, Vermont, Connecticut, New York, New Jersey, North Carolina, Illinois. Then Vince Bugliosi’s book came out. He had heard of me and gave me a call. We had a long talk about it last week and agreed to join forces and work together. I think there is a compelling case for indicting President Bush for murdering U.S. troops in Iraq. Right now the official figure — if you believe it — is 4,089 dead U.S. soldiers, marines, sailors.
I used to teach Criminal Law here; in fact I was originally hired to teach Criminal Law. Murder is defined by common law as the unlawful killing of a human being with malice aforethought. Generally speaking you will find a definition along those lines in almost every state of the Union because they are all based on the common law definition.
Now let’s parse that definition: “Unlawful.” In this case the war against Iraq was a war of aggression by President Bush in violation of the United Nations Charter. In fact he had twice tried to get authorization by the United Nations Security Council to launch that war and failed. So currently we have the “unlawful” part being fulfilled.
“Killing”: Under the law it does not require that you actually pull the trigger on someone. For example, you could push someone in front of an L-train and that would be enough. In this case Bush ordered these now almost 4100 dead U.S. soldiers into a meat grinder in Iraq where they were killed and it was very clear there were going to be casualties when he gave these orders.
So unlawful killing of a “human being”: These 4100 dead soldiers are our mothers, our fathers, our brothers, our sisters, and our sons, and our daughters.
They have been murdered by Bush, Cheney, Rice, Rumsfeld, and the rest of them with “malice aforethought.” Malice, malicious. I think we all know what that means. Mainly that Bush lied about Iraq from the get-go. That became very clear certainly starting in the Summer of 2002 now as verified by Scott McClellan in the publicity related to his new book. Here you have the White House Spokesperson verifying a very detailed propaganda campaign put into effect in the Summer of 2002 to try to sell a war of aggression against Iraq.
Finally the last element: “aforethought.” Namely, that they thought about it beforehand before they did this. It is very clear the war against Iraq had been planned right after they entered the White House, and even before.
In addition for a first degree murder charge on top of these elements you also have to establish what is called “premeditation and deliberation.” Truly here we have had this death and destruction in Iraq premeditated and deliberated by these Bush people since at least when they came to power in January 2001. So I think there is a compelling case that can be made for murder and also first degree murder, which can be a capital offense – not that I support the death penalty.
What Vince Bugliosi and I are both recommending is that this matter be considered by every district attorney and state attorney general in the United States of America. What we are recommending is that people living in a community where there are dead U.S. soldiers get together a group and set up a meeting with the local district attorney — a democratically elected official for that county — where there is at least one dead U.S. soldier, and go in and meet with the district attorney, bring in Mr. Bugliosi’s book, and demand that Bush, Cheney, Rice, and Rumsfeld at least be indicted for murdering that dead U.S. soldier in the district attorney’s county — and also for conspiracy to commit murder.
Conspiracy is defined at common will as an agreement between at least two people to do an illegal act or to do a lawful act by illegal means. Clearly what has happened here is an agreement among Bush, Cheney, and Rice, who are still in power, and Rumsfeld to commit an illegal act of murder of that dead U.S. soldier.
Unfortunately if you take a look at the math and Mr. Bugliosi’s book you will see there are dead soldiers now all over the country and there are going to be more. They are dying everyday if you follow the count in the New York Times; they have the names and ranks and locations where these soldiers come from. So Vince Bugliosi and I want to stop this. If we don’t do something now these deaths will mount and continue since Bush has made that clear that the war will go on. Indeed it could escalate between now and the time they leave office in late January of 2009.
As for the question whether or not a sitting president can be indicted, Mr. Bugliosi did express sort of an offhand opinion in his book that he didn’t think so. But in our conversation I hope I did convince him that in fact there is authority for indicting a sitting president for murder and I sent him those materials. That would be the following sources: First during the Nixon impeachment proceedings Professor Raoul Berger of the Harvard Law School, who at that time was this country’s leading constitutional law historian, did a very important law review article expressing his opinion that a sitting president could be indicted. Second, at the time Leon Jaworski, the second special prosecutor of Nixon after Nixon had fired Archie Cox, obtained an opinion from his legal staff to the effect that a sitting president could be indicted for crimes. Although in his memoirs Jaworski took the position that he personally did not think the crimes for which Nixon was guilty warranted prosecuting a sitting president, he did state his opinion in his memoirs that he felt certainly that a sitting president should and could be indicted for murder. There are some more recent law review articles generated out of the Clinton impeachment proceedings to the effect that a sitting president can be indicted. Indeed it was reported that the lawyers on the Ken Starr staff also did a memo, which I haven’t seen, to the effect that a sitting president could be indicted. So I don’t believe that this is an obstacle.
Again what we are recommending is that people from the community where there is a dead soldier get together, probably try to line up veterans to go in with you from the Iraqi Veterans Against the War, perhaps there might be next of kin who are outraged — I know many are by the deaths of their loved ones — to get into this group and demand that the district attorney convene a grand jury and indict Bush, Cheney, Rice, Rumsfeld for murder and conspiracy to commit murder of that dead soldier. So that is where we stand. Mr. Bugliosi and I agreed late last week to join forces on this matter and I do recommend his book. The first 175 pages lays out the case for indictment.
MECKLOSKY: Now the charge of murder is just on the U.S. troops, not on the Iraqis?
BOYLE: Right. The district attorneys here in the United States would not have jurisdiction to prosecute for dead Iraqis — unfortunately I don’t see it. It might be possible in a new administration for federal prosecutors to indict for dead Iraqis as war crimes. There is jurisdiction in the United States federal law for indicting for war crimes. But right now all the U.S. federal prosecutors have been appointed by Bush, so of course they’re not going to be convening a grand jury to indict the President who appointed them. The difference here is that the district attorneys and state’s attorneys are not part of the federal government. They have been elected by the people of the states where they live, or the district attorneys for the counties where they live, and have broad discretion if not an obligation to inquire into this matter and certainly at least convene a grand jury and to present the case to the grand jury, who after all are the citizens of their community. Let the members of the grand jury decide whether or not to return an indictment against the President. This is a democratic process. It would be the people, the grand jury of that county to make that decision after reviewing the evidence presented by the district attorney.
The second reason, I think this is very important — not only to stop further death and destruction in Iraq, including as you correctly point out the dead people in Iraq who had been killed and murdered by Bush now somewhere in the area of 1.2 million — is that Bush and Cheney might escalate into a war against Iran. Today on Antiwar.com is this article by Gareth Porter pointing out that last summer Cheney tried very hard to bomb the Iranian Republican Guards knowing full well it would escalate into a full scale war between Iran and the United States; he was headed off by the Pentagon and their military officers. Porter also points out Cheney has now done an end-run around all of them by getting rid of Admiral Fallon, Head of U.S. Central Command, who was dismissed because of his opposition to war against Iran, and bringing in General Petraeus, now heading U.S. Central Command who is serving Cheney. So there is a very real risk that if we do not stop these people now they will attack Iran in a war they know will escalate to a major confrontation between Iran and United States. They could do this anytime between now and January 20, 2009, when they leave office.
Let us remember that after President Bush Sr. lost to Clinton in 1992, after the election but before Clinton came to power, Bush Sr. invaded Somalia – there was no restraint on him. But my guess is an attack on Iran between now and November will be decided in accordance with domestic political considerations: namely, will it help McCain win or not. But after the elections in November anything can happen. There is no restraint on this President or Vice-President and in my opinion they have to be removed from office as soon as possible and stopped.
MECKLOSKY: Alright, while I agree with both you and Bugliosi, would the American public support such a move?
BOYLE: I don’t know Mort. That’s why I am on your program today to discuss this campaign.
MECKLOSKY: I am sure that there are going to be several people that would be willing to go to the D.A.’s office and ask them to bring in a grand jury. But the district attorneys and the politicians are afraid of going against the will of the people.
BOYLE: Well, that’s the point though Mort. What is the will of the people here? You see we found this out in our impeachment campaign in Congress. There we went to the United States Congress and the appropriate authorities there and they have ignored the will of the people in Washington D.C. So now we are bringing it one step down to the real grassroots level which is the district attorney, who is accountable to the people of a county that is very small: We have here in Champaign County about 180,000 people. So here we are trying to bring a campaign down to the real grassroots level and not target Washington D.C., but to target whoever your district attorney is and to get the people living in that county to say that we want the President indicted. There are hundreds of district attorneys all over the country. That’s why I believe and I know Mr. Bugliosi, that we can at least find one and then we can take it from there.
MECKLOSKY: Now let’s assume that within some community the district attorney is moved to respond and he convenes a grand jury. Suppose that does take place, what’s the scenario that follows that, what is the grand jury then to do?
BOYLE: It’s like any other criminal grand jury. The district attorney would go in before the grand jury, present the evidence against President Bush on murder, and basically lay out the case that I just mentioned to you and also in Mr. Bugliosi’s book. Now he’s got 175 pages there in first part of the book laying out the case that he would present to the grand jury. The D.A. could subpoena witnesses like Mr. McClellan. Then it would be for the grand jury to decide whether or not to return an indictment against them. This is democracy at work at the very lowest level here in America, Mort, as our Founding Fathers saw it. Remember that there is a constitutional protection that you have to have a grand jury indict you for any type of serious offense in this country. So the grand jury is a branch of our democracy. Then if the indictment is returned it will up to the district attorney to pursue the prosecution as he would any other case: Issue an arrest warrant that would be valid nationwide under the Full Faith and Credit Clause of the United States Constitution.
MECKLOSKY: OK, now if they call witnesses and subpoena people in the administration, could these people go to the government, the President; and the Attorney General could tell them
that they don’t have to appear. Is that possible?
BOYLE: Yes, this has happened already, right. Congress has subpoenaed Karl Rove, Harriet Miers and Josh Bolten. The three of them have told Congress to take a hike. Right? What has Congress done but cave-in? They have gone to court to try to enforce their subpoenas, which is a cop-out. Everyone knows this is a cop-out. Congress can enforce its own subpoenas. They have their own sergeant-at-arms, they have their own jail. He can go out and arrest them and he can bring them back and incarcerate these people if he wants to. But Congress is not going to do it. So they copped-out by going to federal court to try to enforce their own subpoenas. The federal courts are not going to pull Congress’ chestnuts out of the fire for Congress. It is up to Congress to enforce its own powers. And they have not done that. Indeed as we know since the Reagan administration the federal courts have now been stacked with these right wing, totalitarian members of the Federalist Society which you and I have discussed before. Two-thirds of all federal judges now have been appointed pretty much by Reagan, Bush Sr., Bush Jr., and most of them are members of the Federalist Society. People know this, I mean sensible people, and lawyers certainly know that the courts are not going to enforce these subpoenas. It’s really for Congress to enforce its own subpoenas and right now they have made it clear they are not going to do it.
That’s the problem we found repeatedly in dealing with Congress at least in my experience from 13 March 2003 on, trying to get Congressman John Conyers and the other Democratic members of the House Judiciary Committee to put in Bills of Impeachment against Bush, Cheney, Rumsfeld, and Ashcroft. They are not going to do it. Pelosi and the Democrats were put in power in Congress after the 2006 elections, and what does Pelosi say but impeachment is off the table and that’s that. So the question is what do we do now? Well, of course, we do have to keep pressuring Congressman Conyers on impeachment. Ramsey Clark has a campaign on for as much pressure as possible by July 4th. Again I have worked with Ramsey on this project too. But the Washington Democrats are part of the problem, not the solution, so we have to move on to the next stage, and the next stage as I see it, and as Bugliosi sees it, is indicting Bush for murder.
MECKLOSKY: Do you want to speak to the validity of the charges of murder against the President, the Vice-President on what grounds?
BOYLE: Well, I think I did go through those elements, Mort. Again, murder is defined as the unlawful killing of a human being with malice of forethought. I went through each one of those elements for you and then I also went through the requirements for first degree murder, which would be in addition to those elements: premeditation and deliberation. Each one of those elements would have to be proved beyond a reasonable doubt by the district attorney to the satisfaction of a regular jury. I believe the evidence is there. I think the case can be made. But again it would really be for a grand jury to decide if the evidence is there, can that case be made, and then to return an indictment.
MECKLOSKY: OK, if members of the community were to attempt to engage the district attorney to bring charges against the President, should there be anything they should do prior to that, should they let the public know through newspaper and media coverage of such an event?
BOYLE: Yes. What we would like to do is to set off a grassroots movement nationwide. I think they should have a look at Mr. Bugliosi’s book, the first 175 pages, the case is crystal clear in there and have a little study group, read through the book, and if they agree with the conclusion, put together their group to approach the D.A. Again my advice would be to also incorporate some Iraqi Veterans Against the War, the Vietnam Veterans Against the War, and of course you have to be sensitive here but if there are next of kin of dead soldiers in that community who feel very strongly that they want the President indicted, include them. I know many of them do. I have been following these comments some of the next of kin have made after the deaths have been reported to them. Bring in the next of kin to the District Attorney and demand indictment. Set up a press conference before and after the meeting with the District Attorney. I think that is very important. Then try to replicate this all over the country where there are dead soldiers. Unfortunately as of today there are 4,089 of them reported. The number is probably higher than that because they have a long history of never properly reporting dead soldiers, especially in any of the Special Forces and their operations. I really don’t know what the exact number is but I am sure that it is substantially more than 4,089.
MECKLOSKY: Now, there are members of the community that are opposed to the President and his policies but will say this will not take place and we should be satisfied that the President is not going to be president for the coming administration, what’s your response to them?
BOYLE: My response is that the President is still murdering U.S. troops in Iraq as we speak today. These troops were sent over there in our name and I personally believe that as citizens of the United States we have to do everything humanly possible to stop Bush from murdering more U.S. troops in Iraq. If we just sit back and don’t do anything there could be another 100, 200, who knows how many dead U.S. soldiers in Iraq between now and January 20. There’s no guarantee that Obama is going to win this election. It very well could be that the Bush administration will decide to instigate some type of war against Iran in order to help McCain. And McCain would be just as bad on Iraq and Iran as Bush is, so the death and destruction will continue. I don’t think any of us should sit on our haunches in the hope and expectation that somehow Obama is going to win and stop everything come January 2009. I believe we would be derelict in our duties as American citizens to not stop this death and destruction against our own troops, let alone the people of Iraq.
MECKLOSKY: There are going to be people who are going to have a little difficulty with this that the President murdered the troops. They are going to say he might be responsible for their deaths because he sent them into combat when he shouldn’t have done that, but the ones who are killing them is not the President, it’s the al-Qaeda and the Iraqis who don’t want us there.
BOYLE: Yes, it’s the doctrine of transferred intent, I mean, again if you push someone in front of an L-train and they are run over and killed, they are dead. You push someone into a meat grinder and they are killed by the meat grinder, you still kill them. So the President knew he was pushing U.S. armed forces illegally into a meat grinder and they were going to be killed and he knows it today and they are still being killed today. So Mr. Bugliosi goes through some of these technical, legal doctrines on transferred intent and things of that nature in his book, if you are interested in reading it.
MECKLOSKY: OK. I’m recommending the listeners get the book and also contact others that have similar points of view on the war and it’s being illegal and the culpability of the President and others in the administration for the deaths of the troops that went over there and then meet at least informally and set up some sort of a schedule that you recommend. Read the book, set up a study group, contact veterans who are opposed to the war, and then go and meet with the district attorney and also engage the local media on the issue. Tell them this is what the plan is, we are going to indict the President for starting the war and hold them responsible for the death of our troops.
BOYLE: That’s the problem, Mort, with Vietnam. We never held any of those leaders accountable for Vietnam. Fifty-eight thousand men of my generation were murdered in Vietnam and eventually McNamara came out in his book In Retrospect and basically said:Yes, I lied to the American people about Vietnam out of loyalty to President Johnson. We never held any of them accountable. McNamara and Kissinger are still running around today on the lecture circuit. We have to make an attempt here and now to hold Bush, Cheney, Rice, and Rumsfeld accountable for what they have done in murdering United States armed forces and if we do not the death and destruction is going to continue.
MECKLOSKY: Alright. Wasn’t there an attempt to hold Kissinger responsible for crimes against humanity, for example what happened in Chile, and doesn’t he have difficulty when he leaves the country? Aren’t there warrants out there for him in foreign countries?
BOYLE: That is correct. But not here in the United States. I did work with some people up in Canada trying to get Kissinger prosecuted up in Canada. We were not able to do it. They did try to get him in Paris and he got out of the country. I believe they are trying to get him in Spain for what he did in Chile. But again the problem is that we Americans cannot be relying on foreign courts and foreign countries to pull our chestnuts out of the fire. These are our leaders and we have to hold them accountable. Now what happened in Vietnam is a terrible tragedy. I had friends who were murdered over there, others whose lives were ruined, but you know that was a generation ago. Iraq is today and we have to stop this.
We have to hold these leaders criminally accountable to stop it and to make sure it doesn’t happen again because otherwise it will happen again and it very well could happen in Iran. If Cheney and Bush attack Iran, as we discussed this before, they will set off a regional war over there that I shudder to think could degenerate into a Third World War given the current arrangement of great powers and what everyone has said. Even Bush has threatened World War III over Iran. After President Putin went to Iran and said he didn’t think that Iran was really moving towards nuclear weapons, Bush gave a speech basically threatening World War III over Iran. That threat was not directed at Iran, it was directed at Putin. Then Putin responded later on over these planned U.S. missiles in the Czech Republic and Poland by raising the spectre of another Cuban missile crisis, that this could be a Cuban missile crisis in reverse. I lived through the Cuban missile crisis. If you studied what actually happened there, we came a hairbreath’s away from nuclear Armageddon. This is a very dangerous situation here and again if you read Gareth Porter this morning on Antiwar.com you know Cheney is still chomping on the bit to attack Iran knowing full well it will escalate into a major war.
MECKLOSKY: Alright. I agree that we shouldn’t count on other countries to do our work for us in bringing these people to justice. They did try that with Rumsfeld in Germany.
BOYLE: Mike Ratner tried twice over there and the Germans gave two different excuses. Right. But the point is as you correctly pointed out, Mort, we have to prosecute our own criminals over here. With all due respect to Mike Ratner, I have been involved in efforts to hold our government officials accountable in foreign countries, but if we can’t do it here then what’s the point? We have to do it here, we are American citizens. These people were elected by us; we have to hold them accountable; they murdered our own troops.
MECKLOSKY: I think what it takes is how do we convince our neighbors that what you are saying is not only true but something we have to do. I think that’s a problem most people don’t want to get involved in these things.
BOYLE: Basically, we need a spark plug in each community. I’ve heard from several over the last few weeks, I’ve been working on this and there are people calling me up saying: what should I do, how do I get involved, and where do I go from here? I think that is the importance of this interview with you.
BOYLE: As has happened in any type of grassroots democratic movement, Mort, in my lifetime going back to civil rights for Black people, straight on through, you need just common, ordinary, everyday leaders from the community. Someone to say I can make a difference and I’m going to do it. Then as for the technical aspect of it, it’s all there in Bugliosi’s book. Get a copy for the district attorney too, set up the meeting, demand the indictment.
MECKLOSKY: Alright. For groups of people that would be available, for a number of us throughout the country, have a meeting and protesting the war from before the war began and it’s through that core of people that perhaps would move to go to find out who the authorities are, the district attorneys in order to do this. Sometime ago I tried to contact a former student of mine to get some town meetings together where people can discuss the war and what we can do about it. I would think announcements should be made that there will be town meetings if we can get them where the public is invited to participate in this problem. You don’t want them to wait as we did, I’m remembering studying for an exam during the Cuban missile crisis and I put the book down and said: why I’m studying for the world can come to an end?
BOYLE: That’s right. I remember myself during the Cuban missile crisis saying: hey I’m only twelve years old and the whole world is about to blow up, I can do a better job than this. That’s what sparked my interest in international relations. So I think you are right; we have to have town meetings.
MECKLOSKY: Right, and there are towns in the country that are doing that. I mentioned that Bugliosi said that up in Vermont some towns and communities have given their police departments the order to arrest Bush should he be in the area.
BOYLE: I’ve been working with people up in Vermont, Maine and Connecticut, North Carolina, right. I’ve been working with them and advising them and now we’re moving on to this next step.
MECKLOSKY: Great. There must a considerable number of D.A.’s, and at least one of them out there that will have the courage to say this is the right thing to do. We’re going to bring charges of murder against the President.
BOYLE: Right, there are hundreds of counties. The country at the grassroots basic level is organized by counties and there are hundreds of them out there and hundreds of D.A.’s. So we are hoping to get at least just one to start this ball rolling.
MECKLOSKY: The President and the politicians whether or not they know it violate all the rules for rational discourse and the public doesn’t want to get involved in thinking deeply about anything. They cannot process information that’s really painful so they go for the slogans and that’s why we’re in the condition we’re in. I had Marjorie Cohn on a couple of weeks ago and she is saying all we have to do is to educate the people. I had to tell her, Marjorie, they don’t want to know what you are telling them. They’ll shut it down. They don’t want to know the pain that’s in the message you’re giving them. They’d rather think we’re the greatest country in the world, we’re the good people in the world and you’re going to tell them things like telling a kid that his father is a hit man in organized crime.
BOYLE: I think the best way to deal with that is to bring along enough pictures of dead soldiers and let people contemplate dead soldiers in their community. We have several of them out here in the Champaign-Urbana area. I would say once a month I’m reading stories about dead soldiers in this community. I think if you were to bring blown up pictures of these young men and women and realize we’re talking here about human beings and fellow Americans who lived in our communities maybe that is going to drive it home. The New York Times has done a great service by periodically publishing all those pictures of all the U.S. troops murdered in Iraq by Bush, and maybe these pictures can bring this home.
MECKLOSKY: Alright, I appreciate again what you are doing. This time we have a group meeting on Saturdays protesting the counter-protesters and enough of them are veterans and it’s very difficult because you know veterans are difficult.
BOYLE: And even then we do have the Iraqi Veterans Against the War and that’s now headed by my former client Staff Sergeant Camilo Mejia who was the first Iraq war resistor. So you got to work with the Iraqi war veterans and tap into them to give you that type of creditability. And then second we still have the Vietnam Veterans Against the War going back to the Vietnam War and they are very active in resisting this war and get them involved as well, again to provide that type of creditability in dealing with the community and with the district attorney.
MECKLOSKY: Right, there’s still enough of the veterans out there who paid their price. They feel they never challenged the authority that sent them into the war that maybe they should have.
BOYLE: Bertrand Russell wrote a very famous book called Power in which he said that all governments basically work the same way: are run by a very small elite in their own interest. And that is true of western liberal democracies. The difference is that the western liberal democracies are far more effective at covering and masking elite control than dictatorships. As Russell saw it, the only time the veil falls in western liberal democracy is either an economic depression or a defeat in war. In those two cases then the people finally realize that they have been lied to by their rulers and that there is a small elite who have been governing all along.
MECKLOSKY: Are we going to have to really lose this war and be destroyed before we finally go after the ones who’ve brought us to this point and by the time it’s over, it’s too late?
BOYLE: That’s why I’m recommending we go after them now before there is a total disaster over there, to prevent a disaster because as you correctly point out if we wait until there is a disaster then it will be too late. We need a pre-emptive indictment now because I don’t think that if they set off a major war over there that there’s much we can do at that point.
MECKLOSKY: I’m thinking of the poor souls in pre-war Germany that were opposed to Hitler.
They died also as a consequence of his policy even though they opposed him. Those bombs we put upon Germany didn’t discriminate — everybody died. The consequences of a war, everything is going to happen and the United States, I don’t know if you have considered this as a positive, the consequences of the Bush administration, is it very nearly the demise of the U.S. as an empire.
BOYLE: You know Counterpunch has been making that point. The problem I have with that is that it’s just murdering too many people. I mean the human costs for me are just unacceptable and I personally just can’t stand by and see United States troops be used as cannon fodder and 1.2 million people killed in Iraq. As human beings whatever we think of the American Empire we have an obligation to stop this by whatever means we can.
MECLOSKY: OK, take care. You are listening to WUSB at Stony Brook. Those of you who are involved in the protest against the President’s policies against the U.S. Empire pay attention to the suggestions and those of us who meet on Saturdays to stop the war and stop U.S. aggression, perhaps we can meet this coming Saturday and talk about tracking down a D.A. who can bring charges against the President.