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 Iraq War.

Last week, 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 bomb. 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.

Indeed, 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 of aggression”?

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 rationales.

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 laws?

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 journal, The Independent Review.