Happy Mortal

This life, well-lived.

Jailing Bush

STOPBUSH Lawyers debated the finer points of punishing heads of state this morning on NPR. After I stopped cussing at the radio, I settled down enough to ask myself this question. If heads of state break the law, do we prosecute, pardon, or just plain ignore them?

There are several things that deserve careful consideration here: political stability, the rule of law, the power of the office, the will of the people, the power of the courts. Personally, I’d like to see congress and the courts find a way to uphold the constitution in the face of the neo-con onslaught. That may mean prosecuting the Bush administration, it may not. I’d also like to see our country find some meaningful middle ground after eight years of strict polarization. Throwing a president and cabinet in prison is probably not the best way to rebuild America.

But then there is the rule of law. If an administration can simply ignore congress, the will of the people, and the constitution when it sees fit, their actions call into question what any of those things are worth in the first place. Does the constitution guarantee our inalienable rights of life, liberty, and the pursuit of happiness? Or is it simply a facade to pacify the masses? Does habeas corpus give us the right to our bodies? Or is that right granted to us only when it’s convenient for the government to do so?

Presidents have been impeached, they have testified before the courts, but they have never been prosecuted for their crimes. There is clearly no simple answer to the question of prosecuting heads of state. I suppose the big question I have is: what line would have to be crossed for us to do so?


  1. I wonder if the public would more readily prosecute a head of state if the crime committed was more accessible to/attainable by us. For example, because of the level of resources and responsibility a president has, many of the types of crimes a president has access to/is able to commit are beyond the level of crime a common citizen could commit. This, of course, should mean we hold heads of state to a higher level of accountability, but I wonder if it actually ends up meaning the public is more willing to give leniency regarding situations in which we won’t ever find ourselves, and decisions we won’t ever have the opportunity to make. If a president was caught shoplifting, talking on his cell phone while driving, or physically assaulting someone and got off scott free, it’s possible that more people would object. After all, we all have to pay our speeding tickets.

  2. Great questions. I think we missed the boat by not impeaching Bush. This at least would have sent (us) the message that we will not stand for an administration that so blatantly violates the constitution. In this way, I agree when you say that congress and the courts should find a way to “uphold the constitution in the face of the neo-con onslaught.”

    Jailing a head of state gets tricky. I am reminded of Lacan’s idea of the masculine paradigm. (Since Lacan was so sexist I prefer to call it the excepting paradigm). This is simply a system that is based on a constitutive exception. A classic example is a religious system, which is founded on an unprovable belief in a deity. The whole religious system hangs from the idea of this deity (or master signifier). Without the master signifier the system falls apart.

    I don’t know what the master signifier would be for the U.S. (perhaps it is different for different folks). However, I do know that we associate the figure of the president with the founding of our country (our system). George Washington embodies this ideal. Perhaps in some people’s minds, the president is connected to the master signifier of the U.S., as a psychological system. Perhaps they sense that if they mess with this constituting exception, the whole system will fall apart. (Perhaps for others the constitution is the constituting exception).

  3. Window, I think you’re right about us being comfortable with the exception; Americans love a good conspiracy theory. What is so troubling about the last eight years is that there was so little conspiracy, almost no cover up, everything was brought into the open. The exception ceased being the exception and became the rule.

    Is it enough to elect Obama? Does that let us believe that the constitution still guarantees a government by the people? Or is everything different now?

    To put it another way, if all the pastors and priests admit there’s no god, is there any reason to keep going to church? Maybe we’ve forgotten that the constitution is a facade, that every government is a facade. What does that mean? It means that people cannot be governed, not really. It means that we haven’t come up with another way for pack animals to survive in herds. Except to pretend.

    But now the pretend has become the real. We live in herds whether or not we’re pack animals. Which of course begs the question, is government for the people, or is its purpose to convince us that we are ‘people.’

  4. It is definitely disconcerting that the obscene side of governing has been exposed. That which we knew was the price of running a nation-state, but didn’t want to acknowledge (e.g. torture), has been carried out in the light.

    In a way it makes sense that we do not take action. We know that for things to continue we need someone to get their hands dirty. Our silence is a way of trying to turn the lights off again. Perhaps we are desperately clinging to the role of the spouse who knows the partner is cheating but pretends not to know.

    Whatever the case, I do think that there is much ambiguity in the relationship between people and government, which cannot be reduced to a simple real scenario (we are pack animals) covered by a pretense (we pretend not to know that government is facade). The scenario, the scene, could just as well be that we are really pretense. In other words, we are entities that need to hypothesize that we are something real playing at pretense, in order to avoid the fact that we are facade.

    And isn’t facade one way to think subjectivity? In order to account for the gap between the body on the surgeon’s table and the phenomenal experience of an individual we reflexively posit a facade, an “I”.

  5. The line for me is breaking the most fundamental laws of the land. You should, at the least, be sentenced to jail time. And I believe that President George W. Bush has done so. His administrations Attorney Generals have cited, what the Senate called, ridiculous reasons for why he has not broken any laws (ie: Attorney General Gonzalez claiming the right to habeas corpus is not granted by the Constitution, only that the state cannot suspend it, and thus, if never granted it does not exist as a right), but I think that a case should be brought upon him by the government of the United States, along with several class action suits by people “not grated habeas corpus” during his administration’s time in office.

  6. I think it’s very hard to correct justice starting at the top and working our way down. Bush (and government in general) got away with some pretty shady things because we don’t have a legit system with which to judge them by.

    Our legal system is messed up. Children are being judged as adults, adults are being judged as mentally incompetent and the mentally ill are being ignored. Our justice system is broken. We talk ourselves in circles: first degree murder, second degree murder, murder with intent, murder while temporarily insane. Law allows lawyers, cops and csi to “determine” what and who happened and leaves it up to a jury of us (the peers of the the judged) to decide WHY they did it. If we’re truly peers than are we not capable of the same action ourselves? And is our why the same as the person who is being judged? Can we truly ever fairly judge someone based on why WE think they did something? Or is it always to be “simply” based on the what? The minute ONE discovered action determines how long you will be kept separate (jail, loony bins, juvy) from “normal” society then in that same minute we have broken something, perhaps society and humanity itself.

    The president is already separate from normal society. How are we to judge him and separate him any further? Who are his peers? And how can we know why he did what he did?

  7. Putting it in concrete terms actually sounds really good. Let’s do it (please?).

  8. I totally agree that our systems are broken. But I also think that the Bush administration crossed a line and that this deserves a specific response. I think coffeepostal may be on to something. The Bush admin significantly increased the power of the executive branch (Cheney you dog!), and it would be helpful to have the other branches bring back a little more balance.

  9. Seems that ‘political capital’ has become a phrase that refers to how much a politician can get away with. It begs the question, how much capital have we handed over? We allowed Bush to follow Nixon’s terrible precident: if the president does it, it’s not illegal.

    In response to pebble: I think you’re right, the president has become/is becoming a peerless entity in American culture. Many people I know are smarter and more charismatic than GW, but they’re lost in the masses. The president, by dint of office, is disseminated (or amplified) in ways that other citizens cannot be.

    Right or wrong, that is the way of it. If I can mis-quote Greenspan at this point: “we have over-estimated the ability of the president to act in the best interest of the citizens of America.”

    The jigs up. But now what? Do we keep pretending that there is fidelity in this relationship? Do we run and get our pitchforks and a barrel of tar?

    The branches of government are supposed to balance one another. This seems like an appropriate place to begin thinking toward a solution. But the larger problem seems to be the ever increasing hermetic seal that exists between the government and those it governs.

    I’ve said it before, maybe America is too big for its britches. Republics tend to break down when their territory is too large, its population too diverse, or its power too central. Solutions at this point tend to get messy. Either we centralize (yikes!). Or, we decentrilize. There are problems both directions.

    Discussions on the form of government aside, I think America needs to acknowledge its offenses. I think the citizens deserve that. I think the world community deserves that. What form that acknowledgement takes? I’m open to suggestions.