Senators Dick Durbin, Russ Feingold, and Patrick Leahy have introduced a bill in the United States Senate (S. 1346) that would allow the prosecution of George W. Bush and his subordinates for the invasion of Iraq. Before concluding that the Spirit of Justice has risen from the flames, a few caveats: First, none of these senators intends the bill for this purpose, and they would all vehemently and honestly deny that they had any such thing in mind. Second, the bill still has to pass both houses and be signed into law. Third, it has to be signed without a signing statement completely altering it. Fourth, the same Department of Justice that won't prosecute torturers would have to prosecute those who attacked Baghdad. Nonetheless, the possibilities are worth considering.
The legislation, S. 1346, is called "A bill to penalize crimes against humanity and for other purposes." Human Rights First has praised it in a press release that makes clear the bill's purpose: to allow the prosecution of foreigners who commit crimes abroad and then come to the United States to live:
"Crimes Against Humanity Bill Would Close Loophole in U.S. Law
"Human Rights First Urges Passage of Legislation Criminalizing These Heinous Acts, Granting Prosecutors Expanded Powers to Prosecute
"Human Rights First is urging Congress to swiftly pass the Crimes Against Humanity Act of 2009, legislation that would close a loophole in U.S. law that currently allows perpetrators of some heinous international crimes to avoid accountability in U.S. courts. The organization welcomed the bill, introduced today by Senator Richard Durbin, noting that it would expand existing prosecutorial powers beyond genocide, strengthening America's ability to bring to justice those who commit horrific and pervasive crimes against humanity. . . .
"The Crimes Against Humanity Act of 2009 covers some of the most atrocious crimes committed in recent history, such as the campaigns of mutilations and murders of civilians in Sierra Leone and Uganda, the systematic rape of women in Burma and in the Democratic Republic of the Congo, and the ethnic cleansing in Bosnia and Kosovo. Because these crimes are not considered to be genocide, under existing U.S. law prosecutors do not have the ability to hold the perpetrators accountable. Crimes against humanity is a distinct category of crime and a separate statute is needed to provide United States courts with jurisdiction to indict those who commit these acts if they are ever present in the United States. . . .
"Though U.S. law prohibits grave human rights violations such as genocide and torture, alleged perpetrators of crimes against humanity may escape accountability due not to their innocence of unforgivable acts but to loopholes in the U.S. criminal code. The Crimes Against Humanity Act of 2009 would close this illogical gap in U.S. law. Just as they may pursue those who have committed related and similarly horrific crimes, U.S. prosecutors would have the authority to ensure that those in the United States who have committed crimes against humanity may not evade accountability merely by fleeing to our country."
But the bill, as written (See http://thomas.loc.gov ), would allow the prosecution of Americans for crimes against humanity wherever committed. Here is the section of the bill listing the punishable offenses (emphasis mine):
"(a) Offense- It shall be unlawful for any person to commit or engage in, as part of a widespread and systematic attack directed against any civilian population, and with knowledge of the attack--
1) conduct that, if it occurred in the United States, would violate--
A) section 1111 of this title (relating to murder);
B) section 1581(a) of this title (relating to peonage);
C) section 1583(a)(1) of this title (relating to kidnapping or carrying away individuals for involuntary servitude or slavery);
D) section 1584(a) of this title (relating to sale into involuntary servitude);
E) section 1589(a) of this title (relating to forced labor); or
F) section 1590(a) of this title (relating to trafficking with respect to peonage, slavery, involuntary servitude, or forced labor);
2) conduct that, if it occurred in the special maritime and territorial jurisdiction of the United States, would violate--
A) section 1591(a) of this title (relating to sex trafficking of children or by force, fraud, or coercion);
B) section 2241(a) of this title (relating to aggravated sexual abuse by force or threat); or
C) section 2242 of this title (relating to sexual abuse);
3) conduct that, if it occurred in the special maritime and territorial jurisdiction of the United States, and without regard to whether the offender is the parent of the victim, would violate section 1201(a) of this title (relating to kidnapping);
4) conduct that, if it occurred in the United States, would violate section 1203(a) of this title (relating to hostage taking), notwithstanding any exception under subsection (b) of section 1203;
5) conduct that would violate section 2340A of this title (relating to torture);
7) national, ethnic, racial, or religious cleansing;
8) arbitrary detention; or
9) imposed measures intended to prevent births.
b) Penalty- Any person who violates subsection (a), or attempts or conspires to violate subsection (a)--
1) shall be fined under this title, imprisoned not more than 20 years, or both; and
2) if the death of any person results from the violation of subsection (a), shall be fined under this title and imprisoned for any term of years or for life."
If George W. Bush did not conspire as part of a widespread and systematic attack directed against a civilian population to murder, arbitrarily detain, and torture (and probably a few more offenses), then nobody ever has. Now it's true that Bush is not from Sierra Leone, Uganda, or Burma. He's American and he committed his crimes in the United States, giving orders for crimes to be committed abroad. But wait until you read the section of the bill on jurisdiction:
"Jurisdiction- There is jurisdiction over a violation of subsection (a), and any attempt or conspiracy to commit a violation of subsection (a), if--
1) the alleged offender is a national of the United States or an alien lawfully admitted for permanent residence;
2) the alleged offender is a stateless person whose habitual residence is in the United States;
3) the alleged offender is present in the United States, regardless of the nationality of the alleged offender; or
4) the offense is committed in whole or in part within the United States."
Oops. The authors of the bill apparently neglected to consider the possibility of the existence of the most glaring incident in the past decade of our nation's existence. How can you fail to imagine what has just occurred in front of you? I'm not sure. I think a lot of humming and averting of the gaze must be involved. In any case, I do not see how this bill can fail to accidentally criminalize in the US Code what we agreed was a crime, if not the gravest crime of them all, when we agreed to the U.N. Charter, namely aggressive war. Of course, there are a million and one ways out, beginning with simple inaction and including all sorts of legalistic sophistry, such as claiming that the bombing of Baghdad was not directed at civilians but at Saddam Hussein. However, should honesty and decency ever gain the upper hand, I would prefer to have this law on the books and available.
There is one concern I would take seriously, and that is that we not punish crimes that occur prior to the creation of laws. However, doing so seems to be the clear intent of this bill as regards foreigners, the crimes of George W. Bush and gang were already widely known crimes under the UN Charter and Article VI of our Constitution, the War Crimes Act, the Anti-Torture Act, and other laws at the time committed, and as long as we are retroactively granting immunity for warrantless spying, refusing to prosecute torture, and permitting the widespread prosecution of local elected officials for political purposes, a little retroactive criminalization of the murder of a million human beings seems to me a move in the right direction.