Article: Not So Fast Convicting a Criminal Bush

Hardly a day goes by without someone writing an article citing all the crimes committed by President George W. Bush and his administration of miscreant neo-cons. Called for in all those articles are pleas for impeachment, trial, convictions and imprisonment for all involved.

There is no denying that Bush and his cronies have committed numerous crimes and anti-constitutional acts including revealing the identity of an undercover intelligence agent; lying under oath; ignoring congressional subpoenas; appointing officials on political and religious basis in violation of law and Constitution; libeling and slandering opponents; disregarding treaties that are "the supreme law of the land;" lying the nation into war, presenting false evidence to the United Nations and the American public; torture of "enemy combatants;" secret warrantless spying on Americans; suspension of habeas corpus for anyone Bush claims is an "enemy;" authorized abuse of civil and individual rights; kidnapping of foreign citizens in foreign nations and sending them to be tortured in other foreign nations' prisons; creating special courts to try "enemy combatants" even though creation of courts is Congress' authority under the Constitution; innocent people detained indefinitely in prison without charges, counsel or civil trial, subjected to abuse and or torture, and denied access to judicial review of their incarceration, not even being told the charges against them and withholding evidence from their legal representatives if they have legal representation; issuing signing statements that say the President can violate any law he chooses because he is the "Commander in Chief," and then disobeying any law he chooses.

And these acts do not include what crimes have been committed under international law nor do they include noncriminal acts that are sheer incompetence, such as ignoring numerous warnings of impending terrorist attacks, failure to act immediately after those attacks, ignoring a major US city devastated by a natural disaster, appointing incompetent persons to important posts, transgressing the wall between church and state, character assassination short of libel and slander; impugning the patriotism of anyone who disagrees, heavily editing or rewriting scientific reports to present false impressions that science agrees with Bush politics and shooting a lawyer in the face while hunting under the influence.

There is no question that criminal acts have been committed; the only question is "are they actionable through law for their illegality?"

The question of illegality is raised because of the 1918 Supreme Court decision of Schenck v. United States in which the court ruled that government can take actions during wartime that would be blatantly unconstitutional at any other time. The Schenck decision addressed freedom of speech that is a sacred right under the First Amendment, but the court held that speech could be punished with prison time because of the circumstances present during a major war that threatened the nation's survival. That decision interpreting the Constitution's war powers is still "the supreme law of the land."

Justice Oliver Wendell Holmes, writing for a unanimous court, said:

"When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right."

He also said:

"In many places and in ordinary times" the defendants would be within their constitutional rights, but, "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

This was a simple three-paragraph decision that upheld the conviction and jailing of Charles T. Schenck and other members of the Socialist Party of Philadelphia for speaking out against the military draft and urging young men to disregard their draft notices. It must be remembered that Justice Holmes could make one paragraph run for pages, if he wished, so he included many ideas in his three-paragraph presentation.

In the Schenck decision Holmes didn't elaborate. He didn't say that the extraconstitutional powers applied only during a war formerly declared in Congress. He didn't say that those extraordinary war powers were authorized only when a law was enacted according to constitutional procedures. He didn't say that an actual law had to be involved. He didn't say how those powers applied to the Commander in Chief or the military. He didn't say that only speech could be squelched. He didn't say that those powers would apply only to internal matters. We can assume that he thought those concerns would be no problem, but we can only assume.

We use Schenck in wars for good reason, and the Supreme Court knew and understood that well. We use it to operate a Selective Service System to man the armed forces needed to fight wars even though that is "involuntary servitude" prohibited by the 13th Amendment. We use it to censor the news, to restrict access to information, for rationing, curfews, blackouts, restrictions on mobility and travel, taking of private property for government use, detaining and questioning people without cause and other matters that would be illegal in peacetime. We even used it to incarcerate 120,000 persons of Japanese descent ~ most native-born Americans ~ during World War II without charge or evidence of any wrongdoing or threats to the nation's survival by a single individual.

The Schenck decision upheld the Espionage Act of 1917, so we can conclude the court was operating on the assumption the decision applied to enacted law, even though Holmes didn't say that. Subsequent court decisions, which Holmes opposed, made government war powers even more draconian.

Those cases involved Pierce v. United States in which "clear and present danger" was replaced with a "bad tendency" doctrine that made convictions much easier to obtain. In Abrams v. United States the court upheld the more-severe Espionage Act of 1918, which was used to jail opponents of the United States landing of troops in Russia following the Russian Revolution ~ even though that was not part of a declared war ~ an escapade that was partly responsible for the contentious relationship between the US and the USSR throughout the Cold War. In Korematsu v. United States the court approved of the incarceration of those Japanese-Americans in several concentration camps during World War II.

Because of lapses in clarity in Schenck and the more-draconian decisions, the Bush administration has run wild in using the war-powers principles at all times, in all situations and in all parts of the world, even if they run counter to international law, which isn't impacted by the Schenck decision. Holmes had arguably one of the finest minds that helped shape our America, but this decision also led to a situation where his reasoning and logic would be twisted and distorted by some of the nation's worst minds to justify nefarious actions. In defense of Holmes, it must be remembered that because he was such a decent man he probably had no idea of what sort of indecent men might some day control the powers the Constitution provides.

Of all the Bush administration's misdeeds, the ones presently drawing the most attention seems to be memos written by Justice Department advisor John Yoo that basically allowed torture of all sorts inflicted on prisoners held in Bush's "War on Terror." Yoo, who left the administration to rejoin the University of California at Berkeley as a tenured professor of law, has come under fire by those who plead with the university to fire him for advocating and embracing torture. While Yoo may or may not be the despicable person many people think his memos portray him as being, what he said in the memos doesn't run counter to the perimeters of Schenck. Other memos by Yoo suggest that the president's power during wartime is virtually unlimited and the president can ignore any law or congressional activity. That is questionable because Holmes mentioned Congress's power in his decision and said government can operate without limits, not just the president. The Supreme Court did place some limitations in Youngstown Sheet & Tube v. Sawyer (1952) on the presidency when it ruled unconstitutional Harry Truman's seizure of steel mills during the Korean war to prevent disruption of the war effort by labor unrest. But it didn't say the prohibition applied to the entire government. Youngstown may be the reason Yoo said the commander in chief's powers were almost unlimited instead of totally limitless.

Schenck is one decision that had to be made under the circumstances of the time but has to be amended to specify when extraordinary powers are allowed, but the present composition of the
Supreme Court appears to be untrustworthy to do that amending should it ever hear a new case along the lines of Schenck. This court could remove any and all restrictions on the Commander in Chief because it displays an extraordinary love for government and corporate power over the rights of individuals, and that was the problem with Schenck.

Because of Schenck, it appears that prosecuting Bush and his cohorts by the United States for their wartime criminal behavior may be out of the question ~ not to mention that we could see a wholesale pardon just before Bush leaves office of everyone in his administration for any and all transgressions ~ but there is nothing that would prohibit prosecution by an international court for war crimes, which is where Bush and most of his administration belong. Nor is there anything that would shield Bush and his followers from state prosecution. There could be an outside chance that Bush and his enablers could be tried for crimes committed prior to the war, if pardons
are not given by Bush.

Bush and his supporters constantly refer to him as the Commander in Chief rather than the Chief Executive to underscore the unlimited powers he supposedly has under the Schenck decision. Even the media get into the act, constantly calling Bush Commander in Chief, even when reporting about him in situations that have nothing to do the the military, such as overseeing an Easter egg roll on the White House lawn or delivering a speech on the economy or climate change.

The phrase "War on Terror" appears to be coined to cast Bush in the role of Commander in Chief but was inadequate. He therefore began a real war in Iraq to be a true Commander in Chief.

The War on Terror as a war is a fraud . All civilizations have had a "War on Homicide" ever since Cain whacked Abel just this side of Eden. That War on Homicide will never end just as the War on Terror will never end, but Bush would continue to call himself the Commander in Chief in the War of Terror as long as that war existed; that is, forever.

Even the three hopefuls campaigning to replace Bush are constantly promoting themselves as the best qualified to be the next Commander in Chief and are subjected by the media to the question of "who would be the best Commander in Chief" for the nation? That is the wrong question to be directed at Barack Obama, John McCain and Hillary Clinton because we need to know who would be the best Chief Executive, the primary job of a president.