There's a good reason why the heads of organized criminal enterprises are typically charged with and convicted on tax evasion charges, rather the murders and extortions and corruption they supervise. Our legal system is not only set up to deal with events after they occur, but is generally focused on the individuals who actually carry out an act. And then, to complicate matters even more, the criminal law presumes that the perpetrator of an act derived or meant to derive some personal benefit. Following orders to avoid dire consequences for oneself can, in the event of a successful prosecution, serve to mitigate the perpetrators guilt. Which is why we have that revolving door conservatives complain about so much.
Which is also why the law has been amended to make conspiracy a crime--to prosecute both the instigators and perpetrators of criminal acts. But, there's still that assumption of personal benefit which is going to be hard to quantify when the perpetrator or conspirator already has all the power he could possibly want. Or so one would think.
It seems that one of the things we are going to have to consider is that, for the power-addicted, no amount of power is ever enough. Which would account for the Bush/Cheney phenomenon, while providing no answers what to do about it.
The Bush/Cheney phenomenon presents us with another conundrum in that the role of intent (criminal or otherwise), which usually only comes into play during the penalty phase of a judicial proceeding, has been elevated, via all sorts of (admittedly flaky) legal opinions, to justify not only the abuse of power, but the dereliction of official duties by the occupants of the Bush/Cheney administration. More specifically, the intent to "protect the nation" has been used as a cover for doing more than the laws permit and not doing what the laws demand. Indeed, the intent of any act has been proffered to define the morality of that act. As a result, for example, the murder of a million of Iraq's people has been touted as a moral good because the intent was to save them from tyranny. (Of course, we are already familiar with that logic from the destruction of Vietnamese villages in order to "save them," and have still to develop an effective strategy to avoid a repetition).
Of course, we all know that intent is not a valid justification for mayhem and murder and didn't really need more evidence for why "the road to hell is paved with good intentions," but have not been able to deny its validity sufficiently to halt the behavior it spawns--i.e. Bush/Cheney have not been impeached and removed from office in response to their malfeasance. And that's largely a consequence of the fact that the personal benefit which motivated their corrupt behavior is hard to quantify. Moreover, like any head of a criminal enterprise, they don't actually do anything themselves. Proving a conspiracy is hard.
But the lynch pin, it seems to me, is that the basic rationale--that the intent is to protect the nation--hasn't been challenged. The nation has accepted an argument--that the executive and the commander-in-chief is charged with protecting the nation--for which there is no legal basis. At the same time, what the executive is charged with--protecting the Constitution and executing the laws (which does not mean eviscerating them)--has been negated in the act. Indeed, almost every one of the signing statements the administration has issued to announce that the laws will NOT be complied with represents a blatant disregard of the duties of the positions Bush/Cheney hold--and continue to be paid to carry out. Not only is there no provision in the Constitution for a stealth veto (crossing one's fingers should not be tolerated in the White House), but, if "follow the money" is good advice, then it might be worth considering a charge of fraud against people who accept payment for work they don't carry out.
It may be a novel idea, but perhaps we could test it some of those Cabinet officials and Justice Department minions, who have been permitted to resign without apparent penalty for failing to carry out the responsibilities with which they were tasked and which they freely committed to carry out. Perhaps it's time to take the demise of the principle of "sovereign immunity" one step further and, instead of just making public officials liable to a civil suit for compensation by people who might have suffered injury because of an official act that was negligently or imprudently carried out, and let the public, whose assets are being wasted by the official failure to perform assigned tasks, demand some recompense.
There's little or no incentive to perform well, if public officials can perform poorly and then, like the unjust steward in the bible, retire with a hefty pension.
Though it hasn't gotten much coverage in the national press, there's actually a judicial process going forward which seeks to hold derelict public officials (and the entity that employed them, the United States government) to account for the injuries their actions inflicted on the South Korean civilian population. Just this week it was reported that,
Seoul commission finds U.S. forces killed South Korean civilians during Korean War
Nine years ago, the world learned of a hidden chapter of the Korean War — the killing of refugees at a place called No Gun Ri. Now investigators are shedding...
By CHARLES J. HANLEY and JAE-SOON CHANG
The AssociatedPress
SEOUL, South Korea — South Korean investigators, matching once-secret documents to eyewitness accounts, are concluding the U.S. military indiscriminately killed large groups of refugees and other civilians early in the Korean War.
A half-century later, the Seoul government's Truth and Reconciliation Commission has more than 200 such alleged wartime cases on its docket, based on hundreds of citizens' petitions recounting bombing and strafing runs on South Korean refugees in 1950-51.
Concluding its first investigations, the 2 ½-year-old commission is urging the government to seek U.S. compensation for victims.
Presumably, the survivors could make a claim under the Alien Tort Claims Act, which has been the law of the land since 1778. The Federal Tort Claims Act of 1946then extended the same right to U.S. residents and ever since, any number of judgments have affirmed it.
Charles J. Hanley, whom readers might remember for his reports on the fixed Air Force bases the U.S. has been building in Iraq, has been following this story for almost a decade.
The citizen petitions have accumulated since 1999, when the AP confirmed the 1950 refugee killings at No Gun Ri, where survivors estimate 400 died at U.S. hands, mostly women and children.
The National Assembly established the 15-member panel in December 2005 to investigate long-hidden Korean War incidents and postwar human-rights violations by the Seoul government.
News reports hinted at such killings after North Korea invaded the south in June 1950, but the extent wasn't known. Commission member Kim Dong-choon, in charge of investigating civilian mass killings, says there were large numbers of dead — 50 to 400 — in many incidents.
As at No Gun Ri, some involved U.S. ground troops, such as the reported killing of 82 civilians huddled in a village shrine outside the southern city of Masan in August 1950. But most were air attacks.
In one of three initial findings, the commission held that a surprise U.S. air attack on east Wolmi island on Sept. 10, 1950, five days before the U.S. amphibious landing at nearby Incheon, was unjustified. Survivors estimate 100 or more South Korean civilians were killed.
The particulars have an eerily familiar ring. Indeed, there's an area in far western Al Anbar Province, referred to as Korean Village, which was targeted for bombing in the early days of the 2003 invasion, presumably to destroy the water pumping and distribution facilities which were, in fact, destroyed and left 3 million sheep without water, according to a UN aid mission account. Who knows what happened to the people Saddam Hussein seems to have imported to build a rail line to Jordan?
Given the Bush/Cheney fixation on immunity and tort reform, one is tempted to conclude that civil action is their top concern. Though, if the victims have to wait over fifty years for justice, as is happening in South Korea, a criminal prosecution might provide more satisfaction in the short run. And, there's no doubt there was a conspiracy to employ U.S. military forces to invade and occupy and claim a big chunk of real estate in another nation.
Was it permitted? That's the big question. Given that so much of the military and intelligence budget has been kept secret from the people's representatives, having consented to be kept in the dark is not equivalent to sending the military to kill another country's civilian population. I suppose, in the end, it will depend on whether or not the Iraqis complain.