Crime

Many a heart is aflutter over speculation that Special Prosecutor Patrick Fitzgerald may be journeying into the heart of darkness, past the mere trading outpost of l'affaire Plame to the very conspiracy that gave us the Iraq war. As Nostradamus, Jean Dixon and Thomas Friedman all prove, one need not lose credibility for making false predictions, so I'll go ahead and say that I can't see the criminal investigation going significantly beyond unauthorized disclosure of classified information and some ancillary perjury and conspiracy to obstruct justice. That certainly shouldn't disappoint anyone, but the speculation about busting the gang for conspiracy to commit war points to a larger truth.

The Iraq war is, of course, a crime, and its architects and perpetrators -- who are at the summit of power in the world -- are criminal conspirators. We can label the crimes mass murder, the theft of billions of dollars, treason, and they've even thrown in sexual assault and rape to make it a complete package. But those are only crimes in a certain vernacular sense. No doubt the right prosecutor, judge and jury could find the defendants guilty of various provisions of the criminal law along the way, but that will never happen. For a president to order U.S. troops to kill innocent foreigners, no matter how false the pretenses, will never be construed as a crime, so long as the U.S. political structure remains intact.

Richard Nixon was impeached and removed from office for, in essence, conspiracy after the fact in a burglary. Some members of Congress moved to include an indictment for the secret bombing of Cambodia, but they failed. Lyndon Johnson used false pretenses to get authorization for massive escalation of the Vietnam war, but it never occurred to anyone to prosecute him. Ronald Reagan and his Vice President George Bush the First sold sophisticated weapons to Iran's ayatollahs and donated the proceeds to Nicaraguan terrorists. The price they paid was some inconsequential congressional hearings which converted bag man Oliver North into a hero. Bush the First and Donald Rumsfeld conspired with Saddam Hussein to bring about the slaughter of millions in a pointless war with Iran, but that was just the conduct of foreign policy. I could go on for pages but you get the idea.

Some relatively trivial conduct of Rove and Libby may get them into some fairly minor trouble, though one would hope at substantial political cost. But that is the worst the law will do in this matter.

It is indeed necessary that people with very heavy burdens of command have some immunity from judgment in hindsight. Any military action, after all, would be criminal in a different context. It is the job of soldiers to kill, and it is the job of presidents, at times, to order them to do so. Pacifists may wish it were otherwise, but so it is. Sometimes those orders will be based on erroneous beliefs, or bad judgment. We cannot ordinarily define such mistakes as crimes, no matter how awful the consequences. Power to make consequential decisions is a burden that magnifies human frailty, but still must be wielded by humans. Turning to my own field of expertise, consider physicians. Every single one of them has made mistakes that have hurt or even killed people, but they are not criminals, or bad people, just mortals.

Yet there has to be a limit. George W. Bush is a murderer.