Editor’s Note: Special prosecutor Patrick
Fitzgerald’s two–year investigation into the White House leak of a
covert CIA officer’s identity raised hope among many Americans that the
Bush administration might finally encounter some accountability over the
Washington was alive with rumors of multiple indictments and possibly an
expanded probe into the forged Niger letter that was the underpinning of
the claim that Iraq was seeking enriched uranium to build a nuclear
But there also
were skeptics who doubted that Fitzgerald would be that knight in
shining armor come to slay the dragon of White House deceit.
Though it’s still
unclear exactly where Fitzgerald’s investigation will end, so far he
hasn’t lived up to the hopes of his enthusiasts.
Fitzgerald made clear he had no intention of applying federal law in any
creative way to get at the underlying crimes. But it was the bigger
picture – of how George W. Bush and his advisers made a deceptive case
for war – that disturbed so many Americans, as the
U.S. death toll exceeded 2,000 and the number of
Iraqi dead was estimated in the tens of thousands.
To help sketch
that bigger picture, which Fitzgerald is refusing to draw, we are
publishing an essay by Robert Higgs, a senior fellow in political
economy at the Independent Institute.
Special Prosecutor Patrick J.
Fitzgerald has now relieved, for the moment at least, the suspense about
where his prosecutorial finger was going to point. At Fitzgerald’s
request, a grand jury has indicted Vice President Dick Cheney’s chief of
staff I. Lewis “Scooter” Libby on five counts: one count of obstruction
of justice, two counts of making false statements to FBI investigators,
and two counts of perjury.
The offenses for which Libby has been
indicted pertain to the Bush administration’s efforts to smear and
retaliate against its critics, in this case by exposing that one such
critic, former ambassador Joseph Wilson, was married to then-covert CIA
agent Valerie Plame. No indictment was handed up against the president’s
right-hand man Karl Rove, but Fitzgerald says that he will continue his
investigation, so Rove and others remain at risk of indictment later,
most likely for the same sorts of offenses.
Much has been made of these
proceedings; reporters and commentators have speculated for months about
what Fitzgerald might do and what the repercussions of his actions might
be. At this juncture, however, it seems that the elephant has labored
mightily and borne only a mouse.
Libby was not charged with violation
of the law that makes it a felony to knowingly expose the identity of a
covert CIA agent—it’s too difficult to prove that charge in court. The
charges against him are certainly not trivial—if convicted on all
counts, he can be sentenced to 30 years in prison and fined $1.25
million—yet in view of the much greater crimes in which he has long
played such an integral part, the present charges are the moral
equivalent of a parking ticket.
One almost suspects that such legal
proceedings are little more than the regime’s proven method of diverting
attention away from its greatest criminals and their greatest crimes.
After World War II, the U.S.
government joined the governments of the United Kingdom, the Soviet
Union, and France in establishing an International Military Tribunal to
bring to justice the leaders of the European Axis regimes. At a series
of trials at Nuremberg from 1945 to 1949, that tribunal tried more than
one hundred defendants for stipulated crimes against peace, war crimes,
and crimes against humanity.
The tribunal’s charter declared that
“leaders, organizers, instigators, and accomplices participating in the
formulation or execution of a Common Plan or Conspiracy to commit any of
the foregoing crimes are responsible for all acts performed by any
persons in execution of such plans.” At the most important of the
Nuremberg trials, the tribunal indicted 22 of the top surviving leaders
of Hitler’s government and found 19 of them to be guilty of one or more
of the counts against them. Twelve were sentenced to death by hanging
and seven to long prison terms. No appeals were permitted.
At Nuremberg, crimes against the peace
were defined to include the “planning, preparation, initiation or waging
of a war of aggression, or a war in violation of international
treaties.” In view of everything now known to the whole world, can
anyone deny that a large number of the leaders and important private
cheerleaders of the Bush administration constitute the “leaders,
organizers, instigators, and accomplices participating in the
formulation or execution of a Common Plan or Conspiracy to commit” a war
of aggression against Iraq?
Every official rationale for planning,
launching, and continuing this war has now been revealed as bogus. The
Bush cabal plainly wanted a war with
Iraq, schemed to carry out such a war, and did carry it out, notwithstanding
the absence of a shred of reliable evidence that
Iraq posed a serious threat to the United
States. Isn’t this sequence of actions precisely what is meant by a “war
If so, why is the same crime for which
German officials were indicted not an equally proper ground on which to
rest an indictment of U.S. officials? After all, the Germans too had excuses and public
The U.S. Constitution states in
Article VI, “This Constitution, and the laws of the United States which
shall be made in pursuance thereof, and all Treaties made, or which
shall be made, under the Authority of the United States, shall be the
supreme Law of the Land.” One such treaty is the Charter of the United
Nations, signed by representatives of the United States and ratified by
the Senate in 1945.
Among many other relevant provisions,
that charter pledges its signatories as follows: “All Members shall
settle their international disputes by peaceful means in such a manner
that international peace and security, and justice, are not endangered.”
Further, “all Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.”
The UN Charter recognizes each member
state’s right of self-defense “if an armed attack occurs against” that
state, but it explicitly condemns preventive wars, which the Bush
administration has made the centerpiece of its national security
strategy. In current official U.S. parlance, “the best defense is a good
offense.” As the president himself has declared, “America will act
against . . . emerging threats before they are fully formed.” Indeed,
before they even exist—can’t be too careful, it seems.
By violating the UN Charter, which the
U.S. Constitution makes part of the supreme law of the land, President
George W. Bush has violated that law. He has further violated his oath
to preserve, protect, and defend the Constitution by taking the armed
forces to war without a congressional declaration of war.
The failure of Congress to protest his
impudence is immaterial to this violation, in which Congress itself has
chosen, by funding the war, to serve as the president’s accomplice
rather than checking and balancing his exercise of unconstitutional
power as the Framers intended.
Inasmuch as President Bush has so
clearly violated his oath of office, exceeded his constitutional power,
and contravened the supreme law of the land, one wonders why he has not
been impeached for his high crimes. Can the answer be that we now live
in a lawless society, where the strong simply do as they please,
notwithstanding anything to the contrary in the Constitution or the
In Iraq, U.S. forces have brought
death to tens of thousands, most of them noncombatants, and physical
injuries to countless others. They have wreaked vast damages to property
by bombing, shelling, shooting, and other violent means. They have
brought about conditions of life for ordinary Iraqis marked by rampant
crime, unemployment, impoverishment, and extreme insecurity of life,
health, and property, as well as criminal looting by everyone from the
highest state officials to the lowest street thugs.
Such are the fruits of the U.S.
government’s war of aggression—war crimes and crimes against humanity
laid atop its crimes against the peace.
Yet, to date, all we have to show for
the legal process against top U.S. officials is an indictment for one
apparatchik’s workaday dirty tricks—the sort of thing countless
government flunkies do every day of the week.
Be grateful for small blessings, we
might tell ourselves. All right: so far, so good, Mr. Fitzgerald. You’ve
gone the first yard. Still, you have miles and miles ahead of you if
justice is to be served.
Robert Higgs is Senior Fellow in Political Economy at The
Independent Institute, author of
Against Leviathan and
Crisis and Leviathan, and editor of the scholarly quarterly
The Independent Review.