CRIMINAL HOMICIDE
Murder Defined
Aforethought
Malice
Intent to Kill
Intent to Inflict Grievous (Serious) Bodily Harm (Injury)
Depraved Heart (Depraved Mind) - Extreme Recklessness
Felony Murder
Statutory Degrees of Murder
Manslaughter Defined
Voluntary Manslaughter
Involuntary Manslaughter
Criminally Negligent Homicide Defined
Defining "Death of a Human Being"for Purposes of Criminal Homicide

9/11 MURDERS AND THE HOMICIDAL AFTERMATH ABROAD
Mass Murders in New York and DC
Post 9/11 - The Politics of Fear and the Killings Fields of Iraq
Lack of Honor, Abuse of Executive Power by Men in High Places, and Erosion of the                                 Rule of Law - Innocent Blood on Our Hands
Is Half-a-Truth Better Than No Truth? No Skin Off Our Teeth - How Soon Does the American                       Public Forget Being Led Over the Cliff by Its Leaders?
Congress Takes a Pass on Impeachment of Bush2 for Despotism and/or Vandalizing                                     the Constitution - Was Impeachment a Good Idea of Ridiculous?
Murder Prosecution in an American Court Against Former President Bush - Ludicrous                                or Logical?
War Crimes Trials for Other Leaders for Violation of International Law
Voices in the Wilderness
The Victors Try the Vanquished with Orchestration by US Law Professors and                                              Lawyers - The Hanging of Saddam Hussein
Is Uncle Sam Hemorrhaging from War Wounds?
Can the US Solve the Problem of Sectarian Violence Between Religious Factions?
Back in the Homeland - the Supreme Court Is Faced with Fallout Legal Questions that                                Have Moral and Political Implications ["Dealing with 'Detainees' "]
Our Privacy and the US Government's Effort to Spy on Us - Threats to Civil Liberties
More Organized Killing - The Israeli - Palestinian Conflict - The Gaza War
Mutterings on War and Death
Homicide, War, and Texas



CRIMINAL  HOMICIDE (Also discussed in Bushrod I)

Homo homini lupus. - Man is a wolf to man.

Of man's first disobedience and the fruit of that forbidden tree,
whose mortal taste brought death into the world,
and all our woe, with loss of Eden.
John Milton, Paradise Lost

Homicide, the killing of one person by another, can be criminal or non-criminal. [It's the criminal ones that fascinate us. If you don't think so, take at look at FBI Famous Cases, Famous Trials, and the Crime Library. Take a look at Anatomy of a Murder,, an interactive web site that takes you through a murder case. How many of these does the average homo sapien see on the screen before cashing out?] Homicide crimes (1), (2) are the most common offenses in criminal law books and the most common crime included on law school exams in essay and objective questions. Your exam will involve one or more questions containing a criminal homicide. The reason is that homicide offenses contain all the classic elements of crime, e.g., mens rea, actus reus, causation and result. Homicides also may involve issues of provocation, justification and excuse. Suicide is not considered as equivalent to murder in American common law  and is not punishable as a crime in any American jurisdiction. At English common law, suicide was a felony equivalent to murder. Read  a good criminal law hornbook, e.g., Dressler's Understanding Criminal Law, 5th to get the full view. Also, Title 18 USC, Part I, Chapter 51 - Homicide, the federal criminal code, if we can bend to call it a "code," covers the crime of federal criminal homicide. Take a peek at it. Here are a few tips that will be of use to you as you study the doctrine of criminal homicide.

The first issue to determine in a possible homicide vis a vis feticide is whether the victim was a human being. See the Discussion at Defining Death of a Human Being below. When does a person become a person for purposes of the criminal homicide statutes? At common law, a fetus not born alive is not considered a human being; if it is born alive, it is a human being. The MPC takes a similar view in  and so did Texas (Take special note of this change in Texas Penal Code.) until September of 2003 when the definition in Section 1.07 (26) TPC of "individual" was amended to mean "a human being who is alive, including an unborn child at every state of gestation from fertilization until birth." "Death" is now defined in Section 1.07 (49) TPC, thusly, "Death includes, for an individual who is an unborn child, the failure to be born alive."  Section 19.06 (1) and (2) TPC seems to make it clear that the provisions of Chapter 19 - Criminal Homicide regarding the death of an unborn child do not apply if the conduct charged is "conduct committed by the mother of the unborn child" and " a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure." In addition, Chapter 19 does not apply to the death of an unborn child if the conduct charged was " a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102 Family Code" or " the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law." Thus, Texas has gone dramatically beyond the growing list of jurisdictions with feticide statutes. The Texas statute clearly treats the fetus - defined in Webster's dictionary as "a developing human, usually three months after conception to birth," as  as an individual. But it also treats the embryo, defined by Webster's as "the developing human individual from the time of implantation to the end of the eighth week after conception," as an individual for purposes of the criminal homicide statutes. In fact, the fertilized egg traveling down the fallopian tubes prior to implantation in the wall of the uterus would seem to be viewed as an individual protected by Chapter 19. However, destroying embryos that have not ever been implanted into the mother would not be criminal homicide because Art. 38.40 CCP provides, "In a prosecution for the death of or injury to an individual who is an unborn child, the prosecution shall provide medical or other evidence that the mother of the individual was pregnant at the time of the offense." One can visualize scenarios in which embryos that are negligently, recklessly, knowingly, or intentionally destroyed.  What happens if an embryo was created in a petri dish during an effort to assist reproduction for a married couple, but prior to implantation the male donor (father) requests that the embryo be destroyed but the female donor (mother) wants to have the embryo implanted. One thing is for sure, if the embryo is destroyed before being transplanted into the woman, there can be no prosecution for criminal homicide or injury to a child because they will be no proof that the female was pregnant with the embryo sat the time for the destruction. Things can get sticky in the civil arena. Suppose there is a written agreement between the husband and the wife that specifies that the frozen embryo is to be destroyed in the event of divorce. A divorce occurs.  Who owns the embryo?  See Roman v. Roman, 193 S.W.3d 40 (Tex. App. - Houston [1st Dist.] 2006, pet filed).

Re whether the victim was a person, the more accepted view at c/l was that if a fetus was born alive but died as a result of injuries suffered en utero, it was a person for purposes of the criminal homicide law. See Williams v. State, 561 A.2d 216 (Md. 1989). Some states define murder to include "feticide." See People v. Davis, 872 P.2d 591 (CA. 1994). With extremely broad defintion of an "individual," Texas homicide protects the fertilized egg.  For example, it would now appear that responsibility for the strict liability offense of intoxication manslaughter, a second degree felony under Section 49.08 TPC, could apply in cases where a one-day-old embryo miscarried as a result of the intoxication of motor vehicle driver who loses control of his car due to drunkeness. Ahh, but what if it is a one car accident and the mother is the drunken driver? See Section 19.06 TPC.

The next issue to determine in a homicide case is the voluntary act issue, i.e., was the killing the result of a voluntary act?

Next, ask yourself, "Was the killing an omission, i.e., was there a failure to stop  the death from occurring?" Did the omission (failure to act) violate a legal duty of action?"

Next, consider the issue : When is a person dead? (1 - Unit 8) This can be a very important issue as to causation. At c/l , when a person stopped breathing and his heart stopped, he was dead; in more modern days, many statutes (including those of Texas) provide for "brain death" of the whole brain  (a flat encephalogram or brain wave pattern) as the definition of death of a person who is on a respirator or other artificial life support. Be careful to know that the person at the end of life was alive when the actus reus occurred, e.g., when the doctor turns off the life support of a "brain dead" person (s)he is not guilty of murder in Texas because of our definition of death. But under the common law definition of death, the doctor would be guilty of causing the death of a person who had a cardiac and respiratory function because that individual would still be considered a person for purposes of criminal homicide.

Dates of injury and death may be important in cases of suspected common law criminal homicide. The common law year and a day rule of causation in homicide cases said that a death that occurred more than a year and a day after the assaultive act that caused the death could not be a criminal homicide. (1), (2) This was an arbitrary rule of causation and in many modern jurisdictions the rule has been abandoned/abolished (Texas & MPC) or expanded to a larger number of years.


MURDER DEFINED   (There were 15,854 murders and nonnegligent manslaughters the US in 2006.)

Mens rea of murder -  At common law, the definition of the crime of murder (1), (2), (3)  required that one person kill another with "malice aforethought." [Note: The MPC, See Article 210, Section 210.2 MPC, and Texas, See Chapter 19, Section 19.02 TPC,  do not expressly define murder in terms of "malice aforethought"; the descriptive state of mind "malice aforethought" is not used in either body of law. The MPC defines murder in terms of acting purposely or knowingly or recklessly with extreme indifference to the value of human life; the extreme recklessness form of MPC murder might be compared to the concept of common law "depraved heart/mind" murder. Texas defines murder in terms of acting intentionally or knowingly or intentionally inflicting serious bodily injury which causes death. Also, both the MPC and the TPC contain modified felony-murder rules, each of which differs from the other and from the common law F/M rule.] At common law, there were no degrees of murder. All murder carried the same penalty, death.

"Aforethought" -  In terms of modern American law, the word "aforethought" is a superfluous modifier. It just means that the malice has come before the killing and not after the killing was accomplished. In early common law it briefly had a meaning somewhat similar to premeditation, but that connotation was abandoned as the law of murder evolved.

"Malice" - In the modern context, this is a somewhat complex technical legal term that encompasses four (4) states of human endangering culpable mental attitudes, namely:

  • Intent to kill, including what we consider as acting knowingly under the TPC and MPC.

  • Intent to inflict grievous bodily injury (What we in Texas call "serious" bodily injury.) that causes the injured person's death. [Jurisdictions differ in the way they define grievous bodily injury. See Texas' definitions of  "bodily injury" and "serious bodily injury" in Section 1.07 (46) TPC.] In these scenarios, there may be causation issues when you have intervening medical neglect, e.g., a doctor or nurse negligently or recklessly treats the seriously injured victim in a manner that plays a part in the death.

  • Depraved heart (abandoned and malicious heart, depraved mind) is a culpable state of mind characterized by an "I don't give a flip, throw all caution and concern for human safety to the wind, screw it" attitude of extreme (or gross or aggravated) recklessness in which one acts in utter disregard of human life, e.g., firing a gun into a crowded room to see the people panic, talking on a cell phone to one's coke supplier while going 110 mph in a drag race through a school zone crosswalk as tiny children leave the school, dropping a 50 lbs. concrete block from an overpass onto oncoming freeway traffic to watch the cars pile up, shooting an arrow straight up over a crowded beach to see where it will land, driving a motorboat at full speed through a group of swimmers as a shortcut to get a refreshing beer at a lakeside tavern, shooting into a passing passenger train to scare the passengers, etc.  The concept of a depraved heart or mind, indifferent to the value of human life, is not always an easy one for a modern jury to comprehend. This form of malice aforethought doesn't connote the existence of any clinical mental disorder The aggravating element that distinguishes depraved heart malice aforethought from ordinary recklessness is defined in some depraved heart jurisdictions as the existence of circumstances which evince utter disregard for human life, i.e., complete lack of concern. Note that Section 210.2 (1) (b) MPC provides that criminal homicide constitutes murder when "it is committed recklessly under circumstances manifesting extreme indifference to the value of human life." Note that Texas has no "depraved heart" or "extreme indifference to the value of human life" murder. See Section 19.02 TPC. Finally, on the question of whether depraved heart is unconstitutionally vague, recall that the USSC in Arave v. Creech, 507 U.S. 463 (1993), rejected a challenge to the Idaho capital punishment statute that uses "utter disregard for human life" as an aggravating factor.   

  • Felony murder - The felony murder rule (FM) in its pure form says that it is murder if a person is committing a felony and someone dies during the attempt to commit or commission of the felony, irrespective of whether the death is foreseeable or not. Immediate flight or escape from commission of the felony is treated as part of the felony. It makes no difference whether the death is caused accidentally, negligently, recklessly, purposefully, or intentionally. This is an example of strict liability in its most extreme form insofar as severity of punishment is concerned. (Note: Think of the first assignment's Faulkner case involving the seaman who sets fire to the boat while committing the c/l felony of larceny of rum, and simply add to it the additional fact that someone is burned to death by the ensuing fire; the death of that someone would be a good example of c/l felony murder.) The MPC version of felony murder is found in Section 210.2 (1)(b), providing a rebuttable presumption of recklessness manifesting extreme indifference to the value of human life (one type of MPC mens rea for murder) from the fact that the actor is engaged in or is an accomplice (complicity) in the commission of, or an attempt to commit, or flight after committing or attempting to commit one of seven named felonies, i.e., robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. One big question in felony murder cases is: "Why hold the felon guilty of murder when the death occurs in a completely fortuitous or accidental way?" The reason sometimes given is that the FM rule is designed to encourage felons to commit their felonies without unnecessary violence that increases the risk to human life, i.e., the felon who wishes to avoid the FM  rule will commit her felonies is a safe manner. Many law school teachers believe that this doesn't work and that to treat such a person as a murderer is disproportionate punishment. So, we see a history of some courts limiting the scope of the FM rule. The two most important limitations of the FM rule are probably: (1) In many jurisdictions, the felony must be a "dangerous" or "atrocious" felony. It depends on how one defines "dangerous" or ""atrocious." The word dangerous might mean a felony that carries a substantial likelihood (high probability) of death or serious bodily injury. In determining this issue, a court could look at the crime in the abstract or it might decide that it is better to look at the crime applied in the particular case; [Note re Texas FM: The Texas FM rule, Section 19.02(b)(3) TPC, applies to all felonies, but the actor has to commit an act that is "clearly dangerous to human life." This may be a far better rule than one that is limited to "dangerous" felonies that then have to be parsed as to whether they are dangerous in the abstract or as applied. Texas focuses on the presence or absence of conduct clearly dangerous to human life in the carrying out of the felony rather than the characteristics of the particular felony.] (2) Merger or the "Independent Felony Doctrine" is a way of limiting the FM rule. Suppose the underlying felony is a crime of violence, e.g., as assault. If the underlying crime is a crime of violence such as assault, the merger theory is that that felony cannot be the underlying felony for purposes of the FM rule because it, the underlying felony, merges into the completed crime, i.e., the unlawful killing. The idea is that the purpose of the FM rule is to deter felons from acting in a way that creates violent harm. To illustrate the concept of merger, one might ask whether robbery would be an independent felony that would merge into the killing. Robbery is a crime that involves as element of assault in the sense that it involves a robber who relies on force or threat of force to obtain property. However, robbery would not merge into the killing; it would be an independent felony because it has an independent felonious purpose, i.e., to deprive an individual victim of his property, separate and apart from its violent assault aspect. [Note re Texas FM: Texas has an extremely liberal (almost nothing merges) FM rule insofar as merger is concerned. See Johnson v. State, 4 S.W.3d 254 (Tex. Crim. App.1999) holding that only manslaughter, a felony in Texas, and lesser included offense of it merge; Lawson v. State, 64 S.W.3d 396 (Tex. Crim. App. 2001) holding that an intentional and knowing aggravated assault was not a lesser offense of manslaughter and, therefore, could serve as a predicate offense for felony murder.] Only a few states refuse to acknowledge the merger or independent felony doctrine; most hold that an underlying felony assault would merge. It's probably wishful thinking to expect that the Texas Legislature might eventually wise up and restrict what will qualify as the underlying predicate felony for purposes of the felony murder rule.] HYPO: Suppose that A commits an armed robbery and, during the commission of the robbery, the person being robbed, V, is accidentally killed. Could this be FM in Texas? Could this be capital murder in Texas? Under what circumstances? Could this be FM under the MPC? The c/l? Could this be a first degree murder in jurisdictions like CA that recognize degrees of murder? You will find an excellent discussion of FM in Cole, Killings During Crime: Toward A Discriminating Theory of Strict Liability, 28 American Criminal Law Review 73 (1991).

Important: Each of the previous four types of states of mind qualifies as "malice aforethought" under the common law which defined murder as the killing of one person by another with malice aforethought!

Statutory Degrees of Murder - Remember, at common law there were no degrees of murder. The same might also be said in a technical way for Texas and the Model Penal Code, but each of them do recognize the existence of a type of a special aggravated murder, e.g., capital murder, Section 19.03 TPC. in Texas, that alone is deserving of the death penalty. In Texas, capital murder is not assigned a degree. It's simply capital murder and carries either life or death depending on whether the prosecution is seeking the death penalty and how the jury answers the special issues under Article 37.071 CCP. The highest non-capital felony degree range of punishment in Texas is the first degree felony which carries imprisonment from 5 to 99 or life plus a possible fine of up to $10,000.

Many states recognized long ago that the old common law way of dealing with murder, i.e., death for all convicted murderers, was too harsh. So some states, beginning with Pennsylvania, divided murder into two and sometimes more (I believe PA. presently has three or more degrees of murder.) separate degrees of the crime of murder. Each of these separate statutory degrees of murder is a separate crime with its own definitional structure. In the degrees of murder jurisdictions, first degree murder (1) typically carries life or death as the only possible punishments (much like Texas capital murder). Every state with degrees of murder has its own particular statutes to define the various degrees of murder. So, you have to go to the particular statutes to determine the elementary composition of the crime. We can do this by looking at the text of one typical degrees of murder statute, that of California which is contained in Section 189 of the antiquated California  Penal Code:
  • Section 189. Murder; Degrees All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking or any act punishable under Section 206, 286, 288, 288a or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree; and all other kinds of murders are of the second degree. As used in this section, ‘‘destructive device’’ shall mean any destructive device as defined in Section 12301, and ‘‘explosive’’ shall mean any explosive as defined in Section 12000 of the Health and Safety Code. As used in this section,"weapon of mass destruction" means any item defined in Section 11417. To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act. (Emphasis added)
Note the difference between first and second degree murder in California. First degree murders are defined and all other murders are classified as second degree murder. Most state statutes typically incorporate three aggravating categories of homicide that constitute first degree murder. Here they are: (1) homicides committed by a particular manner or means such as lying-in-wait (assassination), poison (the way we kill killers) or torture (the skin 'em alive method would qualify); (2) homicides committed during the commission of certain named and potentially violent felonies; and/or (3) homicides committed with deliberate premeditation.

On the issue of premeditation (1), (2), (3) and the wisdom of using the amorphous term as a factor that single-handedly raises a second degree murder to a first degree murder, there is considerable disagreement. In many states that do use premeditation as an aggravating circumstance, the true meaning of premeditation as planning or reflecting over a considerable period of time has been perverted or abandoned. In these states, the courts say that premeditation occurs if the actor simply thought about doing the killing before doing it. Thus, in these states an emotional killing done on the spur of the moment typically qualifies as a premeditated killing (first degree) killing. Some of these states construe "premeditation" as a mental state that can occur momentarily and almost instantaneously with the intent to kill, thus turning every intent to kill murder into a first degree murder. See State v. Davis, 905 S.W.2d 921 (MO. 1995). On the other hand, some states require actual reflection over a period of time.  Notice that Texas and the MPC totally eschew the premeditation construct and do not utilize the concept of premeditation as an aggravating circumstance that will raise ordinary murder to capital murder. See Section 19.03 TPC.

You may wonder what is normally considered to be a second degree killing in a degrees of murder jurisdiction. Typically, all murders that do not qualify as first degree murders are lumped together as second degree murders. See the California statute above. Since the common law did not recognize degrees of murder and/or premeditation, you should know what constitutes murder at common law in order to recognize what usually constitutes second degree murder in a degrees of murder jurisdiction.

[Mass murderers: As a matter of interest, we are told that mass murderers often display some of the following characteristics - they are typically male, reclusive, loners, aloof; from 30 -50 years of age, psychotic at the time of their homicidal conduct, with personality disorders, e,g,, narcissistic, paranoid, sociopathic, and/or schizoid; they often have aspirations that greatly exceed their grasp and tend to blame others (often inflicting the violence on their perceived nemeses) for their own individual failures; the homicides are premeditated and planned killings that display a conscious objective to kill and are usually precipitated by a perceived affront or insult; often the killings come without warning in that there is no antecedent violence or threat. In workplace killings, researchers tell us that the killer is often sullen, angry, depressed, inflexible, intimidating,and paranoid; the killer may be on a personal crusade, brittle at criticism, have a workplace grievance pending, discuss weapons, and/or feel mired in a hopeless situation. Note that murders of more than one person during the same criminal transaction or during different criminal transactions but pursuant to the same scheme or course of conduct are treated as capital murder in Texas. See Section 19.03 (a) (7) TPC.]

[Federal law re criminal homicide:   Federal Homicide (18 USC Sections 1111-1122); Presidential and Presidential Staff Assassinations, Kidnappings and Assault (18 USC Section 1751-1752); Congressional, Cabinet and Supreme Court Assassination, Kidnapping, and Assault (18 USC Sections 1831-1839); the federal crime of Genocide.


MANSLAUGHTER DEFINED

At common law manslaughter was an unlawful killing without malice aforethought; it was not separated into voluntary and involuntary manslaughter. Eventually, manslaughter morphed into three separate offenses, i.e., voluntary manslaughter (1), involuntary manslaughter (1), and unlawful act (misdemeanor)-manslaughter (1). Here are various definitions of manslaughter: (1 - Webster),  (2), (3), (4), (5), (6), (7)

Voluntary Manslaughter

What is the human but a bundle of passion? Voluntary manslaughter was an intentional killing with adequate provocation (1 - Ok jury instruction) that was committed in a sudden heat of passion (1) before there had been enough passage of time for the passion to subside (cool down). The sort of provocation that would be considered adequate was the sort of provocation that would trigger sudden passion (anger or emotion) in an ordinary man. The  categories of adequate provocation that were recognized by the common law were few and narrow. What were the categories constituted adequate provocation at common law to reduce an intentional killing to voluntary manslaughter? They included: (1) a man observing his wife in an act of adultery; (2) a non-trivial battery where the person in the grip of sudden passion has been struck by the victim of the killing; (3) an illegal arrest where the person illegally arrested resists arrest with deadly force and kills the arresting party; (4) certain injuries to relatives, e.g., where one observes the seduction of one's young daughter; (5) mutual combat or affray where persons agree to fight one another. With reference to adultery, at common law a confession (words) of adultery by a party to it was not considered legally sufficient to constitute adequate provocation. Concerning the subsiding of the heat of passion, the intentional killing had to take place in the heat of passion, which required proof that not only was the accused in the grip of passion but that a reasonable person would not have "cooled down," i.e., that there had not been enough time for passion to subside in a reasonable person. If an intentional killing didn't qualify for voluntary manslaughter, it would typically be murder of the intent to kill variety of malice aforethought.

Today, many states, e.g., TX, CA,  allow words to raise the issue of adequate provocation and let the case go to the jury with both murder and manslaughter instructions. These states trust the trial judge to winnow out cases where the evidence simply doesn't raise the issue, but primarily entrusts the jury with the power and discretion to sort the provocation evidence out and decide whether to convict of manslaughter or murder. Can you imagine a situation where a confession of adultery with taunting might be more likely to engender rage, anger and resentment than actually observing the clandestine act of en flagrante delicto intercourse?

The Texas Penal Code treats sudden passion procedurally as what may be best described as "mitigated murder." Rather than creating the crime of voluntary manslaughter, the TPC allows the defense at a murder trial to raise the issue of sudden passion arising from adequate cause at the punishment stage of the murder trial after the accused has been found guilty of murder. If the defense proves sudden passion arising from an adequate cause by a preponderance of the evidence, the punishment range for pen time is reduced from a first degree felony (a range anywhere from 5 years to 99 or life) to a second degree felony (a range anywhere from 2 years to 20 years). See Sections 19.01 and 19.02 TPC  Thus, Texas does not have a crime known as voluntary manslaughter, though we accomplish the same purpose with our mitigated murder approach. Ask yourself, is the TPC approach, making this a punishment issue,  more sophisticated than the c/l approach that creates the separate offense of voluntary manslaughter? Notice that the sudden passion procedure may also apply to attempted murder. See Mims v. State, 3 S.W.3d 923 (Tex. Crim. App. 1999) resulting in punishment for a third degree felony.

The MPC concept of sudden passion is broader and, perhaps, more sophisticated than the c/l or Texas concept; one way that one can commit the crime of manslaughter (there is no crime of voluntary manslaughter) under the MPC is to commit murder while the defendant subjectively is under an "extreme emotional disturbance for which there is a reasonable explanation or excuse" (EED). Notice that the word "provocation" is not found in the MPC manslaughter statute. See Section 210.3 (1) (b) MPC. Notice, also, that there is no set time limit or cooling off period. Brooders are not excluded from the EED claim under the MPC. The triggering event is not limited to a laundry list. There is no requirement of an act of provocation. Words or taunts may be sufficient. The objective standard of reasonableness is decided from the subjective viewpoint of the accused.

Suppose a person, who is in the grip of a lawfully recognized heat of passion or extreme emotion disturbance (EED), kills someone other than the source of the provocation. Suppose that the victim is an innocent party, as when A, adequately provoked by B, kills C, an innocent bystander. Will A be allowed to raise the issue of adequate provocation? This issue is known as third party provocation. The early c/l held that the provocation had to come form the person killed, but the later c/l allowed it to come from a third party. The MPC does not limit the source of the extreme emotional disturbance. However, TPC Section 19.02(a)(2), indicates that the provocation must come from the person killed or someone acting with that person.

In a few states, there is a version of diminished mental capacity that reduces murder to voluntary manslaughter even though there is not any sudden emotional passion arising from an adequate cause, but rather a mental disturbance. You will see from your casebook reading that California recognized this aspect of diminished capacity at one time, but it no longer does. The MPC recognizes this form of diminished capacity for manslaughter in criminal homicide cases when it uses the words "extreme mental ...disturbance" (EMD) in Section 210.3 (1) (b) MPC.

Note: With regard to sudden passion or extreme emotional disturbance (EED), it is only in the case of killings that we reduce or mitigate the killer's responsibility. If A, adequately provoked by B, breaks B's arm, provocation or EED is legally irrelevant in charging A with assault.

Hint: Provocation or EED as mitigating factors are often seen in real life cases as fall-back or backup positions from a claim of self-defense.

Involuntary Manslaughter

At common law, involuntary and voluntary manslaughter were punished the same. But, today all states that have voluntary and involuntary manslaughter punish involuntary manslaughter with a lesser punishment range than voluntary manslaughter. There are two kinds of involuntary manslaughter at common law, namely: (1) Killings that occur as a result of gross criminal  negligence, and (2) Misdemeanor - Manslaughter killings which occur when an unintended homicide takes place during an unlawful act not amounting to a felony.[Note that the TPC and MPC do not recognize the misdemeanor-manslaughter rule.]

Note: The MPC, Section 210.3,  and TPC, Section 19.04,  have a single crime known as manslaughter. Under either statute, a reckless culpable mental state suffices for manslaughter. For recklessness, one needs to have a subjective perception and a consequent disregard of a known substantial and unjustifiable risk. Under the MPC, remember that when the subjective disregard of the substantial risk reflects extreme indifference to the value of human life, (what you might think of as a sort of MPC version of c/l "depraved heart") you will be dealing with murder not reckless manslaughter.

Texas, like a number of other states also has a strict liability crime known as intoxication manslaughter in Section 49.08 TPC for drunk drivers who by reason of their intoxication kill another person. In Texas, the intoxication must be shown to be a legal cause of the death. In other jurisdictions, the statute may require proof only that the defendant was intoxicated when the vehicle he was driving caused the death of another, i.e., the defendant may be liable even though his intoxication has little if anything to do with the death. Some jurisdictions may call this offense vehicular manslaughter (1) or vehicular homicide.


CRIMINALLY NEGLIGENT HOMICIDE Defined (1)

Concerning negligence, both the MPC, Section 210.4 ["Criminal homicide constitutes negligent homicide when it is committed negligently" as negligence is defined in Section 2.02 (2)(d) MPC.], and the TPC, Section 19.05, ["A person commits an offense if he causes the death of an individual by criminal negligence" based on the definition of criminal negligence as defined in Section 6.03(d) TPC.], contain an additional homicide crime labeled respectively as "negligent homicide" (MPC) and "criminally negligent homicide" (TPC).  The crimes require proof that the defendant "should" (MPC) or "ought to" (TPC) have been aware of a substantial and unjustifiable risk that the result, i.e., death of "another human being" (MPC) or "individual" (TPC) would occur as a consequence of the defendant's conduct. In this sense, the mens rea, negligence as a basis of criminal liability for homicide, is objective, being based on what the accused ought to have been aware of, rather than what s/he subjectively was aware of. The crimes require that the defendant cause the death by "negligence" (MPC) or "criminal negligence" (TPC). Note that the concept of negligence under the MPC and the TPC embraces only gross negligence. More on that in the next paragraph. Note also that the punishment for this offense is at a lower level, e.g., MPC felony of the third degree, TPC state jail felony, than the other forms of criminal homicide, e.g., capital murder, murder, and manslaughter. See Chapter 19 TPC.

In both homicide crimes the culpable mental state is gross (as opposed to "ordinary" civil tort negligence based on a mere deviation from the ordinary standard of care) negligence. So in cases where there is a failure to perceive the substantial and unjustifiable risk of death from the defendant's conduct, there must be gross negligence in the sense of a gross deviation from the standard of care that "a reasonable person would observe in the actor's situation" (MPC) or "an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." (TPC) The TPC and MPC both require a showing of gross negligence for proof of negligent homicide; in fact, neither recognizes ordinary negligence, i.e., a deviation from the ordinary standard of care, in the short list of culpable mental states. [Note: It's rare that a state utilizes the standard of ordinary tort negligence rather than gross negligence as the operative culpable mental state for a criminal homicide. At one time Washington State did so. See State v. Williams, 484 P.2d 1167 (Wash. 1971) a case of the young American Indian boy who died of the gangrenous mouth infection and whose father was convicted of manslaughter for ordinary tort negligence, as opposed to gross negligence; the Washington law was later changed to require criminal negligence as the operative mens rea.]

Note: If you are a 1L (first year law student), you are probably getting used to the idea that many areas of law, in addition to  the law of crimes and defenses, are governed by codes. See Then and Now for the history of codes. As a lawyer, you will spend a lot of time in the next 40 years with your nose in a code of one sort or another. Since you are required in this course to spend considerable time in the Texas Penal Code (TPC), it may of some solace to know that a study of  the penal codes of every state in the union to determine the "five best" and "five worst" found that (drum roll) the Texas Penal Code was the best in the nation. If you have a bit of spare time, skim this excellent article by Professor Paul Robinson, U. Penn. Law School, one of the top criminal law professors in the world.  It explains the purpose and function of a penal code, and it will provide you with greater appreciation of our dandy TPC, notwithstanding the amendment savaging it typically takes from lugnuts when the Texas legislature is in session. .

DEFINING "DEATH OF A HUMAN BEING" - A REQUIRED RESULT IN CRIMINAL HOMICIDE CASES & A POLICY QUESTION

When does life begin and end? When does a human being first become a person subject to being killed, and when does a human being cease being a person for purposes of the homicide statutes? One can see that the legal description of terms like "human being" or "individual" within the law of crimes is more than a simple Webster's definition. In many instances, the legal definition of a term is a reflection of core policy that has significant social implications and consequences.

The issue of when life begins and ends involves philosophical and religious questions which are beyond the scope of a forty-five hour basic criminal law course. As some cases demonstrate, courts and juries occasionally have to decide these questions in the absence of specific legislation. More often, in modern times our legislatures will give us definitions.

When does life begin? Let's look at the definition of human being (person or individual) in determining when life begins for purposes of the penal law.

  • Common Law: A "person" for purposes of the homicide crimes was one who was born alive. The killing of an unborn child is not regarded as homicide for the reason that the fetus is not viewed by the common law as a person. See Hughes v. State, 868 P.2d 730 (OK. Crim. App.1994); Hollis v. Commonwealth, 652 S.W.2d 61 (KY. 1983). The traditional approach of the common law did allow conviction for criminal homicide if a fetus was injured en ventre sa mere (in the mother's womb) or en utero (in the uterus) and was born alive and then died as a result of the en utero injury. Feticide was not a common law crime. [Note: At common law, abortion was a misdemeanor defined as causing miscarriage after the fetus had quickened, unless it was necessary or reasonably believed to be necessary to save the life of the mother.]

  • Model Penal Code: Section 210.0(1) defines "human being" as a person who has been born and is alive and does not recognize the possibility of a homicide of one not born alive. See Homicide based on killing of unborn child, 40 A.L.R. 3d 444 (1971). Feticide is not a crime under the Model Penal Code.

  • Texas: Until September 1, 2003, Texas followed the common law and Model Penal Code in its definition of an individual. On that date, the Texas Legislature did a drastic about face with regard to fetal rights, changing the definition of an individual in Section 1.07(26) TPC to "a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth." Death was also redefined to include "for an individual who is an unborn child, the failure to be born alive." This new definition goes beyond a feticide statute. It goes way beyond a feticide statute based on viability. Current science teaches us that the very edge of fetus "viability" is twenty-four weeks. There is virtually no chance of survival at twenty-two weeks and only about an eight percent chance at twenty-three weeks. This makes no difference to the Texas Legislature which has defined an individual to include a fertilized egg (zygote). As to consensual abortion, Section 19.06 TPC makes it clear that the Chapter 19 criminal homicide statutes do not apply to the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child or a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure or a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102 of the Family Code or the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law. [Note: Texas has no criminal abortion statute. There is, however, a crime of performing an abortion on a minor without following the parental notification requirement. See Section 33.001 Texas Family Code.]

Query: What do you think about embryonic and fetal rights? Does the stage of fetal development matter? Do you favor a law such at Texas' that labels a fertilized embryo as an "individual" for purposes of the penal law including criminal homicide? If you wouldn't go that far, would you be in favor of a feticide crime that protects a fetus from criminal homicide? If so, would you limit the feticide crime to "viable fetuses." See Homicide based on killing of unborn child, 40 ALR3d 444. See State v. Black, 526 N.W. 2d 132 (WI. 1994). If you favor protecting the unborn, should the intentional killing of the unborn be a lesser crime than killing the born? How about a statute that said, "The killing of an unborn child by an injury to the mother of the child which would be murder if it resulted in the death of the mother shall be involuntary manslaughter." See Henry, Feticide: Time to End Ohio's Blind Imitation of the Past, 17 Ohio N. U. L. Rev. 659 (1991).

Bioethical Issues: High tech creates some enormous bioethical issues for the future of criminal homicide. During recent years, laboratories in Bath, England and the University of Texas have succeeded in crating headless mice by deleting the gene that tells the embryo to produce the head. Having no way to breathe, the headless mice died instantly at birth. Factoring forward, if may be possible in the not to  distant future to produce headless humans for their organs - fully formed, perfectly useful, ripe for harvesting. Better yet, it might be possible to produce human bodies without a forebrain. These human bodies could be kept alive as a source of organs. [This assumes that some women would be willing to carry brainless fetuses or that science can eventually create an artificial womb.] In light of what science may be able to achieve, what bioethical issues impact our penal code definition of what constitutes a human being or fetus that will be protected by criminal homicide and/or feticide statutes? Do you see anything right or wrong with producing headless fetuses or zombies for organ harvesting? With cloning, it may well be possible to produce and exact genetic replica of yourself sans forebrain. Thus, it may be scientifically possible to have a ready source of body spare parts. Would you support penal law that makes deliberate creation of headless humans or zombies  a serious crime?

When does life end? When is a person dead? The first requirement of causation in criminal homicide cases is that the defendant's conduct must be a factual (but for) and legal (proximate) cause of death.  This issue can come into play when organs are harvested from a human body and there is a dispute as to whether the donor was legally dead. See People v. Bonilla, 467 N.Y.S. 2d 599 (NY 1983). Death has been described by humorists as, "Just nature's way of telling you, 'Hey, you're not alive anymore.'" But there are significant legal implications that arise from our definition of death in criminal homicide cases, particularly in light of the considerable amount of organ harvesting that goes on in our current American society. When are we "dead" so that harvesting vital organs from a donor for transplantation is not murder? See State v. Shaffer, 574 P.2d 205 (KS. 1978). People v. Bonilla, 467 N.Y.S.2d 599 (NY 1983). A medical definition of death might include: (1) complete unreceptability and unresponsitivity, (2) no movement or breathing, (3) no reflexes, and (4) a flat electroencephalogram.

How do we define death? (1- philosophical), (2) In these days, when many grievously injured patients are placed on life support , e.g., respirators that do the breathing for the patient, we look at the brain functions to determine whether the patient is brain dead. See Homicide by causing victim's brain-dead condition, 42 A.L.R.4th 741. Texas has a medically based statutory definition of "death" in Title 8, Section 671.001 of the Texas Health and Safety Code which defines death as follows:

  • Standard Used in Determining Death
     (a) A person is dead when according to ordinary standards of medical practice, there is irreversible cessation of the person's spontaneous respiratory and circulatory functions.
(b) If artificial means of support preclude a determination that a person's spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease.
(c) a registered nurse or physician assistant may determine and pronounce a person dead in situations other than those described by Subsection (b) if permitted by written policies of a licensed health care facility, institution, or entity providing services to that person. Those policies must include physician assistants who are credentialed or otherwise permitted to practice at the facility, institution, or entity. If the facility, institution,or entity has an organized nursing staff and an organized medical staff or medical consultant, the nursing staff and medical staff or consultant shall jointly develop and approve those policies. The board shall adopt rules to govern policies for facilities, institutions, or entities that do not have organized nursing staffs and organized medical staffs or medical consultants.

Query: What does it mean when a doctor declares a person "brain dead"? If a victim of violence is brain dead but still has respiration and circulation due to life support, can the prosecutor still convict a person of a criminal homicide, e.g., murder, while the victim is still on life support or does the brain dead victim have to be taken off of life support and quit breathing and have his heart stop pumping before a defendant can be convicted of murdering the victim? If the victim has to be taken off of life support and expire before a murder conviction can be obtained, could a parent who inflicted a brain death injury on a child keep the child on life support and avoid a charge of some type of criminal homicide until the life support was removed? 



THE 9/11 MURDERS AND THE HOMICIDAL AFTERMATH ABROAD

Every good and excellent thing in the world stands moment by moment
on the razor edge of danger and must be fought for.
  Thornton Wilder

The murder of one citizen of the United States by another is a serious crime, but the murder of thousands
of innocent citizens of another country in an unjust war is "collateral damage."

If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.
James Madison

[Note: I suspect that only a few in this politically illiterate society will read the following. Most students in theIr 20's will not agree with what they read. Yet I  felt compelled to write it because I wanted a timeline to remind myself that horrendous acts of political treachery can be committed
on a gullible (gullable) public by the executive branch of our government. It happened as set forth below.]

MASS MURDERS IN NEW YORK & DC ON SEPTEMBER 11, 2001 - WHAT WE DO IF WE CATCH SOME CO-CONSPIRATORS

(Historical Note) Some contents of this single paragraph are derived in part from Bushrod's notes of  9/13/01 - THOUGH THE SUBJECT WAS NOT SUPPOSED TO BE CRIMINAL HOMICIDE AND WAR, THE PROF OPENED THE CLASS TALKING ABOUT THE +2900 MURDERS OF 9/11 PERPETRATED BY NINETEEN TERRORISTS, FIFTEEN OF WHOM WERE SAUDIS. THESE AIRPLANE HIJACKERS, ARMED WITH BOXCUTTERS, STRUCK AT THE ICONS OF WALL STREET AND THE MONEYED CORPORATE INTERESTS (THE TWIN TOWERS OF THE WORLD TRADE CENTER) AND AT THE HEART OF THE U.S. MILITARY COMPLEX, THE PENTAGON. THE PROF SEEMED TO WANT TO GET US TO DISCUSS WHETHER THESE TERRORISTIC ACTS SHOULD BE HANDLED AS A CRIME WITH EXTRADITION TO THE U.S. OF CO-CONSPIRATORS WHO ARE HIDING IN FOREIGN COUNTRIES OR AS AN ACT OF WAR WHERE YOU SIMPLY GO AFTER YOUR ENEMY AND KILL HIM ON SIGHT OR MAYBE SOMETHING IN-BETWEEN. ONE STUDENT REPLIED TO THIS INVITATION FOR DISCUSSION; SHE SUGGESTED THAT THE INTERNATIONAL CRIMINAL COURT  (1 - FIRST SENTENCE IN 2012) WOULD BE A POSSIBILITY. PERSONALLY, THAT SOUNDED LIKE A FAIRLY GOOD IDEA, EXCEPT THAT THE U.S., ALONG WITH ISRAEL AND SUDAN, HAS NOT AGREED TO BE A PARTY IN THE INTERNATIONAL COURT OF CRIMINAL JUSTICE. THE PROF SAID HE THOUGHT THE AD HOC INTERNATIONAL CRIMINAL TRIBUNAL FOR  THE FORMER YUGOSLAVIA, SET UP BY THE U.N. IN THE HAGUE IN 1993, HAS, THUSFAR, BEEN SOMETHING OF A FIASCO BECAUSE IT HAS DONE LITTLE TO NOTHING, EXCEPT SPEND MANY MANY  MILLIONS OF DOLLARS TO TRY A FEW LOW LEVEL SERBS FOR ALLEGED WAR CRIME ATROCITIES. HE GAVE AN EXAMPLE OF ONE ALLEGED "WAR CRIMINAL" WHO GOT FIFTEEN YEARS AFTER A LONG, PROTRACTED, EXPENSIVE TRIAL. THIS IS A DROP-IN-THE-BUCKET  SENTENCE IN LIGHT OF DRACONIAN SENTENCES THAT OUR LOCAL HARRIS COUNTY COURTS METE OUT TO SERIOUS CRIMINALS EVERY DAY, EACH FOR A FEW HUNDRED DOLLARS IN COSTS. [NOTE: WE DO KNOW WHAT HAPPENED WHEN THE US COURTS TRIED A WOULD BE SUICIDE BOMBER WHO WAS LATE TO THE CAPER. SEE ZACARIAS MOUSSAOUI. WE ALSO KNOW THAT ON MAY 2, 2011, AN UNARMED MULTI-MILLIONAIRE OSAMA BIN LADEN WAS KILLED WITH  A SHOT TO THE HEAD AND SEVERAL TO HIS TWITCHING BODY BY US NAVY SEALS IN A COVERT OPERATION AT A SHABBY, UNGUARDED COMPOUND IN ABBOTTABAD, PAKISTAN, WHERE HE HAD LIVED WITH HIS WIVES AND CHILDREN FOR FIVE YEARS. THE OFFICIAL OBAMA ADMINISTRATION DESCRIPTION OF THE KILLING DIFFERS FROM WHAT THE SEALS SAY HAPPENED. (1) THE SEALS' CONDUCT, WHICH INCLUDED SHOOTING BIN LADEN'S WIFE, WAS AUTHORIZED BY PRESIDENT BARRACK OBAMA. THE SEALS WRECKED ONE OF THEIR TWO $60M STEALTH HELICOPTERS, BUT ESCAPED WITH BIN LADEN'S BODY IN THE OTHER. THE NAVY DEPOSITED THE BODY INTO THE OCEAN AT AN UNDISCLOSED LOCATION. THE INFORMATION THAT IDENTIFIED THE BIN LADEN'S HIDING SPOT WAS NOT THE PRODUCT OF BUSH ADMINISTRATION TORTURE ("ENHANCED INTERROGATION") UTILIZED ON DETAINEES. THOSE WHO BELIEVE IN THE RULE OF LAW ARE LEFT TO WONDER WHAT A TRIAL OF BIN LADEN AS A 911 CONSPIRATOR OR ACCOMPLICE WOULD HAVE DISCLOSED - IF THE SEALS HAD ELECTED TO BRING HIM OUT ALIVE INSTEAD OF FEEDING HIM TO THE FISHES. THE IDEA MAY BE TO DISHONOR AND SILENCE YOUR EMEMY NOT JUST DEFEAT HIM.]

AS TO THE FIRST PERMANENT INTERNATIONAL CRIMINAL COURT (ICC) (1 - VIDEOS) FORMED IN 2002, THERE ARE THOSE WHO THINKS IT'S A CAPITAL IDEA , E.G.,  A PRO-ICC WEBSITE SPONSORED BY ICC FANS. YET SOME ARE SKEPTICAL OF ITS USEFULNESS, E.G.,  ANTI-ICC WEBSITE. IN 2002, UPON THE 60TH RATIFICATION OF THE ROME STATUTE CREATING THE ICC, THE COURT HAS BEEN AUTHORIZED. THERE ARE STILL QUESTIONS ABOUT ITS PROCEDURES, E.G., LENGTHY PRETRIAL DETENTION, USE OF AFFIDAVITS AND TRANSCRIPTS RATHER THAN LIVE TESTIMONY FROM WITNESSES, NO JURIES, THE RIGHT OF THE PROSECUTION TO APPEAL, ETC. THE ICC IS SUPPOSED TO TRY VIOLATORS OF INTERNATIONAL CRIMINAL LAW, E.G., CRIMES AGAINST HUMANITY, GENOCIDE, WAR CRIMES, AGGRESSION,  AS DEFINED IN THE TREATY THAT  ESTABLISHES IT. [NOTE: THE FIRST ICC TRIAL, OF CONGOLESE THOMAS LUBANGA DYILO, BEGAN ON 1-26-09 - 14-YEAR SENTENCE IN 2012; ON 7-12-10, SUDANESE PRESIDENT AL-BASHIR BECAME THE FIRST-EVER CHARGED BY THE ICC WITH GENOCIDE.] THE PROF SAYS HIS OPINION IS THAT THE U.S.A. PROBABLY WON'T GIVE UP ITS SOVEREIGNTY TO SUCH A GROUP BY RATIFYING THE ROME STATUTE THAT ESTABLISHES THE ICC. THE US VOTED AGAINST IT AND REFUSED TO SIGN THE TREATY THAT WOULD SET IT UP. THE PROF. SUGGESTED THAT IF THE US RATIFIED THE TREATY, THE INTERNATIONAL COURT WOULD THEN HAVE THE POTENTIAL JURISDICTIONAL POWER TO TRY AMERICAN POLITICIANS, E.G., GEORGE W. BUSH (1), RICHARD "DICK" CHENEY, DONALD RUMSFELD (1), BILL CLINTON (1), HENRY KISSINGER, ETC., FOR ANY PERCEIVED WAR CRIMES. (SUPPOSE THE INTERNATIONAL COURT DOESN'T AGREE WITH BUSH2'S AUTHORIZATION AND IMPLEMENTING TORTURE, EUPHEMISTICALLY LABELED "ENHANCED INTERROGATION," TECHNIQUES ON THOSE THOUGHT TO BE CONNECTED TO THE UNDEFINED "WAR ON TERROR."). THE PROF SUGGESTED THAT, EVEN THOUGH GREAT BRITIAIN, CANADA AND AUSTRALIA ARE AMONG THE SOME 120 MEMBER COUNTRIES, UNLESS THE U.S.A. BECOMES A PARTY THE SO-CALLED INTERNATIONAL CRIMINAL COURT MAY BE DOOMED TO BE NOTHING MORE THAN A PAPER TIGER PURSUING DEPOSED THIRD-WORLD DICTATORS. THE PROF GAVE US A CITE TO AN ARTICLE ON THE SUBJECT. I READ IT AND, I HAVE TO ADMIT,  IT WAS GOOD IN CLARIFYING THE LEGAL QUANDRY WE FACE IN TAKING ACTION AGAINST TERRORISTS. I DID A LITTLE RESEARCH AND FOUND ADDITIONAL INFO ON THE ICC AND INTERNATIONAL CRIMINAL LAW AT ANOTHER SITE. SEE ALSO, HATCHELL, CLOSING THE GAPS IN UNITED STATES LAW AND IMPLEMENTING THE ROME STATUTE; A COMPARATIVE APPROACH, 12 ILSA J. INT'L & COMP. L. 183 (2005). WILL ANY SURVIVING TERRORISTS GET A FAIR TRIAL HERE IS THE US? WOULD ANY CAPABLE CRIMINAL DEFENSE LAWYER REPRESENT THEM? WHAT WOULD HAPPEN TO A LAWYER WHO DID (GOOGLE LAWYER "LYNNE STEWART" DEFENDED BY SUPER-LAWYER MICHAEL TIGAR)? DO LAWYERS HAVE TO TAKE A CASE IF THE JUDGE APPOINTS THEM? WOULD WE WANT TO RELY ON OUR OWN HAND-PICKED FEDERAL PROSECUTORS TO HANDLE THE CASES OR COULD WE TRUST PEOPLE HIRED BY THE ICC COURT TO VIGOROUSLY PROSECUTE TERRORISTS?  [NOTE: AS IT TURNED OUT, SOME SPLENDID DEFENDERS DID STEP UP TO DEFEND SOME OF THE "TERRORISTS" HELD BY THE BUSH2 ADMINISTRATION. SEE BELOW.]

POST 9/11 - THE POLITICS OF FEAR AND THE KILLING FIELDS OF IRAQ -THE BUSH2 DECISION TO LET LOOSE THE KILLING MACHINE AND PREEMPTIVELY INVADE A SOVEREIGN COUNTRY ON FALSE PREMISES - NOT ONLY THE WORST DECISION IN THE HISTORY OF AMERICAN FOREIGN POLICY BUT ONE THAT SOME LABEL AS A MURDEROUS S ONE - WAR & HOMICIDE - SEE CHARLES FERGUSON'S NO END IN SIGHT FOR A TASTE OF THIS DISASTER

All murderers are punished unless they kill in large numbers and to the sound of trumpets.
                                                                                                                                   ~Voltaire

LACK OF HONOR, ABUSE OF AUTHORITY BY MEN IN HIGH PLACES, AND EROSION OF THE RULE OF LAW -  INNOCENT BLOOD ON OUR HANDS? - ON MARCH 19, 2003, THE MOST WARLIKE COUNTRY ON THE PLANET, THE UNITED STATES - US, SENT OUR YOUNG MEN AND WOMEN TO PREEMPTIVELY KILL (AS IN HOMICIDE) THE PEOPLE OF A COUNTRY THAT HAS NOT TO THIS DAY ATTACKED US, AND, IN THE PROCESS, BE KILLED (AS IN HOMICIDE) BY THOSE WE WERE AGGRESSING. AFTER 9/11, THE UNITED STATES UNDER THE LEADERSHIP OF THEN PRESIDENT BUSH2  ATTACKED AND MADE WAR AGAINST THE SOVEREIGN STATES OF AFGHANISTAN AND IRAQ, CAUSING THE DEATHS OF HUNDREDS OF THOUSANDS OF HUMAN BEINGS. IN THE PROCESS OF PROPAGANDIZING THE AMERICAN CITIZENRY, TRUTH WAS THE FIRST AMERICAN CASUALTY; BUSH2 FIRED THAT SHOT. IN JUNE OF 2008, WITH THE IRAQ WAR ENTERING ITS SIXTH YEAR, BUSH2'S FORMER PRESS SECRETARY SCOTT MCCLELLAN PEELED BACK A BIT OF THE THIN PUBLIC VENEER OF OUR NATION'S FORMER LEADER, DESCRIBING BUSH2 AS DRIVEN BY PROPAGANDA RATHER THAN THE TRUTH, AN INTELLECTUALLY IDLE MAN WHO "CONVINCES HIMSELF TO BELIEVE WHAT SUITS HIS NEEDS AT THE MOMENT." HERE'S WHAT MAY BE A TINY EXAMPLE OF THE STUPEFYING INEPTITUDE OF W'S MIND: (1) (2). IN THE COURTROOM, HOW WOULD YOU DEAL WITH A WITNESS WHO TESTIFIES TO IMPOSSIBLE FACTS? [NOTE; IN 2011, THE WATSON INSTITUTE OF INTERNATIONAL STUDIES AT BROWN UNIVERSITY DETERMINED THAT THE COST  OF THE WARS IN IRAQ, AFGHANISTAN, AND PAKISTAN WILL TOTAL FROM $3.7 TO $4.4 TRILLION DOLLARS. SOME 224,000 TO 258,000 PEOPLE HAVE DIED DIRECTLY FROM WARFARE, INCLUDING 125,000 CIVILIANS IN IRAQ. MANY MORE DIED INDIRECTLY FROM THE LOSS OF CLEAN DRINKING WATER, HEALTHCARE, AND NUTRITION. AN ADDITIONAL 365,000 HAVE BEEN WOUNDED, AND 7.8 MILLION PEOPLE HAVE BEEN DISPLACED. (1)]

IS HALF-A-TRUTH BETTER THAN NO TRUTH AT ALL?  - HOW SOON DOES THE AMERICAN PUBLIC FORGET BEING LED OVER THE CLIFF BY ITS LEADERS? : AS IT'S CASUS BELLI (AN ACT JUSTIFYING WAR) THE PREEMPTIVE OR MORE PROPERLY "PREVENTIVE" ATTACK AGAINST THE COUNTRY OF IRAQ WAS SOLD TO THE AMERICAN PUBLIC BASED ON BOGUS PREWAR CLAIMS (SOME SAY "PROPAGANDA"; ARISTOTLE MIGHT CALL IT "SOPHISTRY.") BY THE BUSH2 "ASSEMBLE THE ARMY" ADMINISTRATION THAT THE GOVERNMENT OF SADDAM HUSSEIN POSSESSED WEAPONS OF MASS DESTRUCTION (DISTRACTION?) AND HAD LINKS TO AL QAEDA, AN INTERNATIONAL ORGANIZATION DEVOTED TO TERORISM. WE AMERICANS LAPPED UP PRESIDENT BUSH'S PABLUM. OF COURSE, WE NOW KNOW THAT BOTH CLAIMS BY BUSH AND HIS SECRETARY OF DEFENSE (DONALD RUMSFELD) AND STATE (COLIN POWELL) WERE SPURIOUS, SPECIOUS FALSEHOODS. RUMSFELD CLAIMED IN 2002 THAT THE U.S. HAD BULLETPROOF EVIDENCE OF COOPERATION BETWEEN SADDAM AND AL QUEDA; POWELL CITED LINKAGE BETWEEN SADDAM AND ALQUEDA IN URGING THE UNITED NATIONS TO SUPPORT INVASION OF IRAQ. DESPITE GARGANTUAN SEARCH EFFORTS, NOT ONE SINGLE WMD HAS EVER BEEN FOUND; NUMEROUS STUDIES HAVE DISCOUNTED THE ALLEGED LINK BETWEEN SADDAM HUSSEIN'S ADMINISTRATION AND AL QAEDA (QAIDA), E.G., A 2007 PENTAGON STUDY OF 600,000 IRAQI DOCUMENTS, RELEASED IN MARCH OF 2008, FOUND NO LINK BETWEEN THE TWO; PREVIOUS REPORTS BY THE 9/11 COMMISSION AND THE PENTAGON'S INSPECTOR GENERAL REACHED THE SAME CONCLUSION.

FORMER PRESIDENT BUSH2, A MAN WHO NEVER SERVED IN COMBAT [BUT LOOKED SO "TOP GUN" WHEN HE APPEARED IN A COD-PIECE FLIGHT SUIT ON THE DECK AN AIRCRAFT CARRIER UNDER A BANNER PROCLAIMING "MISSION ACCOMPLISHED" (9/11 - VIDEO), (2 - ARROGANCE, 3 - SELF SACRIFICE] AND WHO SOME OF HIS CRITICS VIEW AS A SHALLOW, PETULANT, WAR MONGER FRONTING FOR THE CORPORATE, MILITARY, INDUSTRIAL COMPLEX, SUMMED UP HIS PHILOSOPHY OF WAR WITH STATEMENTS LIKE, "I JUST WANT YOU TO KNOW THAT, WHEN WE TALK ABOUT WAR, WE'RE REALLY TALKING ABOUT PEACE," AND "WHEN I DO TAKE ACTION, I'M NOT GOING TO FIRE A $2 MILLION MISSILE AT A $10 TENT AND HIT A CAMEL IN THE BUTT. IT'S GOING TO BE DECISIVE." THE U.S. PRESIDENT ADMITTEDLY HAD A PERSONAL GRUDGE AGAINST HUSSEIN SINCE "HE TRIED TO KILL MY FATHER," REFERRING TO AN ALLEGED IRAQI POST-GULF WAR I PLOT TO KILL FORMER PRESIDENT BUSH1, AN ABLE PRESIDENT AND POLITICIAN. SUFFICE IT TO SAY THAT MANY BELIEVE THE WAR IN IRAQ REFLECTS MISSTEPS AND MISJUDGMENTS OF A TRAGICALLY FLAWED, "DIE FOR A LIE," SCANDAL-PLAGUED (1) EXECUTIVE BRANCH, COUPLED WITH COWARDLY DEFAULTS BY THE U.S. CONGRESS AND A COMPLACENT, THUMBSUCKING, FAWNING, APPLE-POLISHING, SYCOPHANTIC AMERICAN MEDIA, E.G., THE NEW YORK TIMES, THE WASHINGTON POST, THE NEW REPUBLIC, CNN, FOX NEWS, ALL THE WAY DOWN TO VANITY FAIR, THAT MISLED THE AMERICAN PEOPLE BY FAILING TO ASK AND SEEK ANSWERS TO THE RIGHT QUESTIONS. ONE NOTABLE EXCEPTION WAS THE REPORTING BY THE KNIGHT, RIDDER REPORTING AGENCY WHOSE JOURNALISTS BY ALL ACCOUNTS GAVE ITS READERS AROUND THE COUNTRY ACCURATE INFORMATION, COURAGEOUSLY NEGATING THE VALIDITY OF THE ADMINISTRATION'S CLAIMS THAT INVASION OF IRAQ WAS A WAR OF "NECESSITY" RATHER THAN "OPPORTUNITY." [WASN'T IT GEORGE ORWELL WHO SAID, "THE PEOPLE WILL BELIEVE WHAT THE MEDIA TELLS THEM THEY BELIEVE."]

CONGRESS TAKES A PASS ON IMPEACHMENT OF (FORMER) PRESIDENT BUSH2 FOR EXECTIVE DESPOTISM AND/OR VANDALIZING THE CONSTITUTION - WAS IMPEACHMENT A GOOD IDEA OR RIDICULOUS? - THERE WERE INTELLIGENT VOICES CALLING OUT FOR BUSH2'S IMPEACHMENT, BUT CONGRESS PASSED ON THE IDEA. ELIZABETH HOLTZMAN, RESPECTED FORMER CONGRESS WOMAN AND FORMER DISTRICT ATTORNEY OF BROOKLYN, NEW YORK, PRESENTED A CASE FOR IMPEACHMENT IN HER 2006 PAPERBACK BOOK THE IMPEACHMENT OF GEORGE BUSH : A PRACTICAL GUIDE FOR CONCERNED CITIZENS. HERE IS AN ARTICLE IN THE NATION AND A 2006 RADIO INTERVIEW. SEE ALSO ANN FAGAN GINGER'S, UNDOING THE BUSH-CHANEY LEGACY: A TOOL KIT FOR CONGRESS AND ACTIVISTS (2008) CONTAINING STEP-BY-STEP SUGGESTION FOR RECLAIMING DEMOCRACY. THE UNITED STATES CONGRESS DID NOTHING.

MURDER PROSECUTION VS. FORMER PRESIDENT BUSH2 - LUDICROUS OR LOGICAL ?? -OTHERS, E.G., REPUBLICAN BRUCE FEIN AND FORMER JUDGE ANDREW NAPOLITANO,  HAD CALLED FOR PROSECUTION OF BUSH AS A WAR CRIMINAL. BUT IN JUNE OF 2008, FAMED PROSECUTOR VINCENT BUGLIOSI URGED THAT GEORGE W. BUSH BE PROSECUTED FOR MURDER IN CIVILIAN COURTS OF THE US FOR EACH OF THE + 4,000 DEATHS OF AMERICAN TROOPS IN IRAQ. HE'S DEAD SERIOUS. BUGLIOSI'S BOOK THE PROSECUTION OF GEORGE W. BUSH FOR MURDER LAYS OUT THE EVIDENTIARY CASE FOR A SUCCESSFUL DOMESTIC MURDER PROSECUTION AGAINST BUSH2 IN EACH OF THE RESIDENT COUNTIES OF DEAD US IRAQ WAR CASUALITES. IN CHAPTER FOUR OF HIS BOOK, HE MAKES THE CASE FOR A CONSPIRACY TO COMMIT MURDER CHARGE AGAINST MR. BUSH, BASING IT ON THE THEORY THAT BUSH AND CO-CONSPIRATORS, E.G, DICK CHENEY, ETC., AGREED TO START THE WAR IN IRAQ BASED ON WHITE HOUSE LIES AND FALSE PRETENSES, KNOWING THAT AMERICAN TROOPS WOULD BE KILLED. BUGLIOSI THEN ARGUES FOR VICARIOUS LIABILITY FOR THE SUBSTANTIVE CRIME OF MURDER BASED ON THE ACCOMPLICE LIABILITD Y THEORY OF COMPLICITY. HE SAYS THAT BUSH2 WAS AN AIDER AND ABETTOR OF THE MURDER OF THE THOUSANDS OF AMERICAN SERVICEMEN AND WOMEN WHO HAVE BEEN KILLED IN THE CONFLICT. HIS ARGUMENT FOR MENS REA (A CULPABLE MENTAL STATE) IS GROUNDED ON BUSH2'S LIES AND MISREPRESENTATIONS RE NONEXISTENT WMD'S AND THE FANCIFUL LINK BETWEEN AL KAEDA AND SADDAM, ALL DONE WITH WITH THE INTENT AND PURPOSE OF STARTING A WAR WITH IRAQ, AND WITH ACTUAL KNOWLEDGE (BEING AWARE THAT IT WAS REASONABLY CERTAIN) THAT DEATHS OF AMERICAN TROOPS WOULD BE AN INEVITABLE CONSEQUENCE. AS ALTERNATIVES TO THE INTENT TO KILL MENS REA, HE ARGUES THAT THE PRESIDENT'S STATE OF MIND RELECTED RECKLESSNESS MANIFESTING EXTREME INDIFFERENCE TO THE VALUE OF THE LIVES (WHAT THE COMMON LAW CALLED DEPRAVED HEART MALICE) OF THESE THOUSANDS OF DEAD AMERICAN SERVICEMEN. RE ACTUS REUS (CONDUCT) AND LEGAL CAUSATION, BUGLIOSI ARGUES THAT, THOUGH BUSH2 DID NOT PERSONALLY KILL ANY OF THE TROOPS, HE IS VICARIOUSLY LIABLE FOR THE CONDUCT OF IRAQI RESISTANCE WHO DID DO SO; BUGLIOSI'S LEGAL THEORY IS THAT BUSH USED THE IRAQI RESISTANCE AS AN INNOCENT INSTRUMENTALITY TO DO THE ACTUAL KILLING OF US TROOPS. HE SAYS THAT CONGRESS WAS NOT COMPLICITOUS, BUT RATHER A VICTIM OF THE BUSH2 LIES AND DELIBERATE MISREPRESENTATIONS. [QUERY: AS STUDENTS OF CRIMINAL LAW, WHEN CONSIDERING THE CRIMINAL LIABILTY OF GEORGE BUSH2, DICK CHENEY, PAUL WOLFOWITZ, AND DONALD RUMSFELD, SHOULD WE ASK OURSELVES THIS QUESTION: HOW MANY TENS OF THOUSANDS OF INNOCENT WOMEN, MEN AND CHILDREN DOES ONE NEED TO KILL IN ORDER TO BE CONSIDERED A MASS MURDERER?] DO YOURSELF A FAVOR AND WATCH: NO END  IN SIGHT.

BUGLIOSI HAS VOLUNTEERED HIS WHOLE-HEARTED ASSISTANCE IN ANY SUCH PROSECUTION, EITHER AS AN ADVISOR OR AS A SPECIAL PROSECUTOR. HE SUGGESTS IN A DEGREES OF MURDER JURISDICTIONS THAT THE CHARGE COULD BE FIRST-DEGREE MURDER, MAKING THE DEATH PENALTY WITHIN THE POSSIBLE RANGE OF PUNISHMENT. HE SAYS THAT HE WILL NOT REST UNTIL THE PRESIDENT FACES A JURY IN A MURDER TRIAL. AGREEING THAT A PROSECUTION COULD NOT COMMENCE UNTIL THE PRESIDENT LEAVES OFFICE ON 1-20-09, THE HIGHLY SUCCESSFUL PROSECUTOR, TURNED BEST-SELLING AUTHOR, NOTES THE TRADITIONAL RULE THAT THERE IS NO STATUTE OF LIMITATIONS ON THE CRIME OF MURDER. BUGLIOSI SAYS THAT THE IDEAL VENUE WOULD BE WASHINGTON, D.C. [QUERY: DO YOU THINK ANY PROSECUTOR IN THE STATES OR DISTRICT OF COLUMBIA WILL HAVE THE MORAL GUMPTION OR TEMERITY TO TAKE BUGLIOSI'S SUGGESTION?] [NOTE: THE BOOK LAYS OUT IN DETAIL THE LEGAL AND FACTUAL BASIS FOR A SUCCESSFUL MURDER PROSECUTION AND THE ARGUMENT FOR TERRITORIAL JURISDICTION IN ANY COUNTY FROM WHICH A DEAD SERVICEPERSON HAILS; IT'S ALSO CHOCK-FULL OF WHAT APPEARS TO BE WELL-RESEARCHED DOCUMENTARY PROOF; FOR $18, IT'S NOT A BAD READ EITHER FOR LAW STUDENTS STUDYING THE LAW OF CRIMES AND DEFENSES OR FOR PRACTICING PROSECUTORS SEEKING JUSTICE AGAINST "EVILDOERS."]

WAR CRIMES TRIALS FOR OTHER LEADERS WHO VIOLATED INTERNATIONAL LAW: AS A MATTER OF PRECEDENT, THE AD HOC TRIBUNAL (1), (2) FOR THE FORMER YUGOSLAVIA UNDERTOOK TO TRY THE FORMER HEAD OF STATE, SLOBODAN MILOSEVIC FOR COMMISSION OF WAR CRIMES. AFTER MORE THAN FOUR YEARS OF TESTIMONY, THE TRIAL ENDED WHEN MILOSEVIC SUFFERED A FATAL HEART ATTACK ON MARCH 11 OF 2006. EARLIER, HE HAD ASKED FOR MEDICAL ATTENTION AND HAD CLAIMED THAT HIS CAPTORS WERE POISONING HIM. SOME QUESTIONED WHETHER THE TRIAL BEFORE THE INTERNATIONAL CRIMINAL COURT WAS A TYPICAL SHOW OF POWER AND CONTROL OF THE VICTOR OVER THE VANQUISHED, PROMPTED BY THE U.S. PAYING SOME OF ITS BACK DUES TO THE UNITED NATIONS?  CLICK FOR MORE INFORMATION ABOUT INTERNATIONAL CRIMINAL TRIBUNALS. SEE SYMPOSIUM, MILOSEVIC & HUSSEIN ON TRIAL, 38 CORNELL L. REV. 649 (2005).

VOICES IN THE WILDERNESS - THANKS TO THE EXISTENCE OF EVENHANDED BLOGS AND THE TERRIFIC LINK TV, SOME UNFILTERED AND UNSANITIZED JOURNALISTIC EVIDENCE OF THE HANDIWORK OF THE "COALITION" INVASION AND OCCUPATION OF IRAQ AND THE INSURGENT'S RESISTANCE WAS AVAILABLE TO BE SEEN, E.G., THE HUNDREDS AND HUNDREDS OF GRAPHIC PHOTOS PUBLISHED BY INDEPENDENT JOURNALIST DAHR JAMAIL. (GOOGLE HIM ON YOUTUBE FOR SOME REVEALING SPEECHES; HE GREW UP IN HOUSTON.) ; ALSO SEE  THE WAR PHOTOGRAPHS OF ZORIAH MILLER (1). TO COUNTERBALANCE THE BUSH2 DOCTRINE OF WAR, THERE WERE ALWAYS A FEW VOICES IN THE WILDERNESS. SEE PRESIDENTIAL CANDIDATE  RALPH NADER (THE PERENNIAL VOX CLAMANTIS IN DESERTO) AND THE CENTER FOR RESPONSIVE LAW. SEE ALSO DEMOCRACY NOW - THE WAR AND PEACE REPORT WITH ITS INTREPID ANCHORESS, AMY GOODMAN, (AVAILABLE FOR TELEVISION VIEWING IN HOUSTON, TX, M-F AT 7 A.M. ON PUBLIC ACCESS TV - CHANNEL 17); IF YOU DON'T HAVE LINK TV (COMCAST CABLE DOES NOT CURRENTLY PROVIDE IT IN HOUSTON.) AND WANT UNVARNISHED NEWS OF THE WORLD, TRY THE STREAMING VIDEO AT LINK TV; WATCH BILL MOYERS' JOURNAL, WATCH FRONTLINE (THIS EDITION, WITH THE HELP OF A BRAVE CHAP NAMED JACK GOLDSMITH, DRAMATICALLY REVEALED HOW VP CHENEY AND DAVID ADDINGTON, THE MAN WHO REPLACED CONVICTED FELON SCOOTER LIBBY AS CHENEY'S CHIEF OF STAFF, UTILIZED THE ADVISORY SERVICES OF THE JUSTICE DEPARTMENT'S JOHN YOO (SOMETIMES CALLED BUSH2'S "DR. YES" (1) AND NOW A TENURED PROFESSOR AT THE UC BERKELEY SCHOOL OF LAW - BOALT HALL (1)) TO EXPAND THE PRESIDENT'S RIGHT TO FUNCTION OUTSIDE WHAT MANY MIGHT REGARD AS "THE RULE OF LAW" WITH THE INFAMOUS TORTURE MEMOS (1). READ CHENEY'S LAW. SEE ABU GHRAIB. READ ENGLISH BARRISTER AND LAW PROFESSOR PHILLIPE SANDS' TORTURE TEAM: RUMSFELD'S MEMO AND THE BETRAYAL OF AMERICAN VALUES (2008) REPORTING THE MORAL CORRUPTION SURROUNDING RUMSFELD'S SIGNING OF THE MEMO SENT BY WILLIAM HAYNES, GENERAL COUNSEL AT THE PENTAGON, REQUESTING APPROVAL OF SPECIFIC COERCIVE TECHNIQUES, MOST OF WHICH WERE PRACTICED ON MOHAMMED AL QAHTANI (1). FOR ADDITIONAL INSIGHT INTO THE AMERICAN INVOLVEMENT IN TORTURE OF DETAINEES IN IRAQ AND ELSEWHERE, SEE AMANN, ABU GHRAIB, 153 U. PA. L. REV. 2085 (2005); THIENAL, FOREIGN ACTS OF TORTURE AND THE ADMISSIBILITY OF EVIDENCE, 4 J. NT'L. CRIM. JUST. 401 (2006) AND MARK DANNER'S ARTICLES AND BOOK, TORTURE AND TRUTH: AMERICA, ABU GHRAIB AND THE WAR ON TERROR. ALSO READ THE NATION MAGAZINE, ENGLISH JOURNALIST ROBERT FISK, AND/OR NOAM CHOMSKY'S HEGEMONY OR SURVIVAL: AMERICA'S QUEST FOR GLOBAL DOMINANCE. WATCH SPYING ON THE HOME FRONT (THE GOVERNMENT SPYING ON YOU AND  ME). SEE TORTURE: AMERICA'S BRUTAL PRISONS. IF YOUR HEART IS IN THE RIGHT PLACE, BUT YOU HAVE THE LEGAL CURIOSITY OF A URINAL CAKE, HANG OUT ON THE DIXIE CHICK'S WEB SITE, PURCHASE THEIR TOP TEN 20O6 ALBUM "Taking the Long Way", OR BUY A TICKET TO ONE OF THEIR ENJOYABLE CONCERTS.

THE VICTORS TRY THE VANQUISHED WITH "GUIDANCE" FROM U.S. LAWYERS AND LAW PROFESSORS : IN DECEMBER OF 2005, THE AMERICAN BACKED IRAQUI ADMINISTRATION PLACED A DEFIANT HUSSEIN, A THUGLIKE CHAP WHO RULED IRAQ FROM 1979 TO 2003 AND WHO IN CONNECTION WITH THE IRAQ-IRAN WAR (1980-88) APPEARS TO HAVE GASSED KURDISH VILLAGES IN 1988 WITH ORDNANCE, E.G., CHEMICAL AND BIOLOGICAL PRECURSORS, SATELLITE BATTLEFIELD SURVEILLANCE, "CROP-DUSTING" HELICOPTERS, ETC., ALLEGEDLY SUPPLIED IN PART BY AMERICA AND VARIOUS EUROPEAN COUNTRIES, ON TRIAL FOR HIS LIFE FOR AUTHORIZING REPRISAL KILLINGS IN 1982 AFTER A FAILED ASSASSINATION ATTEMPT ON HIS LIFE, BUT NOT BEFORE RIZAR AMIN, THE KURDISH ORIGINAL PRESIDING JUDGE OF "THE IRAQI HIGH TRIBUNAL," WAS REMOVED AFTER SHIITE COMPLAINTS THAT HE WAS TOO LENIENT AND TWO OF THE DEFENSE LAWYERS WERE MURDERED EARLY ON, WITH HUSSEIN'S THIRD DEFENDER BEING ABDUCTED AND MURDERED IN JUNE OF 2006, SIX WEEKS BEFORE THE TRIAL WAS COMPLETED. THROUGHOUT THE TRIAL, ALL OF THE JUDGES AND PROSECUTORS LIVED SECURELY IN THE HIGHLY FORTIFIED AMERICAN "GREEN ZONE," BUT THE BROTHER OF ONE WAS MURDERED IN HIS HOME IN THE AUTUMN OF 2006.

A CONSIDERABLE PORTION OF THE SHOW TRIAL WAS CONDUCTED IN THE ABSENCE OF HUSSEIN WHO WAS PERIODICALLY REMOVED BY THE NEW PRESIDING JUDGE FOR OBSTREPEROUS CONDUCT AND WHO WENT ON A HUNGER STRIKE IN PROTEST OF THE FAILURE TO PROVIDE BODYGUARDS FOR HIS LAWYERS. HUSSEIN BOYCOTTED THE FINAL ARGUMENT PHASE OF THE TRIAL. ARGUMENTS ON BEHALF OF HUSSEIN WERE DELIVERED BY A GROUP OF LAST MINUTE "COURT-APPOINTED" ATTORNEYS "TRAINED" BY AN ASSORTMENT OF LAWYERS FORMERLY ASSOCIATED WITH THE OUR MUCH MALIGNED JUSTICE DEPARTMENT AND SOME AMERICAN LAW PROFESSORS WHO COULDN'T RESIST THE ROLE OF PUPPET MASTER; THESE AMERICAN PROSECUTORS AND LAW PROFESSORS ALSO TOOK PART IN THE INVESTIGATION OF THE CHARGES THAT WERE LEVELED AGAINST HUSSEIN AND "TRAINED" THE JUDGES AND IRAQI PROSECUTORS.  AT THE CONCLUSION OF ARGUMENTS, TRIAL WAS RECESSED UNTIL OCTOBER FOR THE VERDICT OF THE COURT.  DOES ANYONE SMELL MACKERAL ROTTING IN THE MOONLIGHT? TO NOBODY'S SUPRISE, ON NOVEMBER 6, 2006, HUSSEIN WAS SENTENCED IN HIS FIRST TRIAL TO DEATH BY HANGING. AFTER HIS QUICKIE APPEAL WAS DENIED, U.S. FORCES TURNED SADDAM HUSSEIN OVER TO THE NEWLY INSTALLED IRAQI GOVERNMENT WHICH PROMPTLY HANGED HIM AT 10 P.M. E.T. ON DECEMBER 29, 2006, AT THE BEGINNING OF A SUNNI RELIGIOUS HOLIDAY. HUSSEIN, DESPITE BEING INSULTED BY HIS HANGMEN AND THE AUDIENCE OF SHOUTING SHIA ONLOOKERS BELOW, MAINTAINED HIS TOUGH-GUY COMPOSURE AND NEVER BROKE, WALKING TO THE GALLOWS, REFUSING A HOOD, AND PRAYING AS THE TRAP WAS SPRUNG.  (1 - SANITIZED VERSION FOR US CONSUMPTION)  IT WAS REPORTED THAT THE LAST WORD UPON HIS LIPS WAS "MOHAMMED." [NOTE: IN THE YEARS SINCE THE START OF THE IRAQ WAR, FAR MORE DEATH AND DESTRUCTION HAS BEEN VISITED ON THE IRAQI PEOPLE THAN DURING THE 30-YEAR DESPOTIC REIGN OF THE TYRANT HUSSEIN.] FOR THE VIEW THAT THE TRIAL OF THE TYRANNICAL STRONG-ARM DICTATOR WAS AN AMERICAN-MICRO-MANAGED SHOW TRIAL, TAKE A LOOK AT IRAQI-BORN, BRITISH BARRISTER DR. ABDUL-HAQ AL-ANI'S, THE TRIAL OF SADDAM HUSSEIN (2008) WHICH NOTES "WHILE THE TRIBUNAL WAS INTENDED TO PROMOTE THE IMAGE OF A TRIUMPHANT IRAQI DEMOCRACY, THE US WAS ACTUALLY IN CONTROL OF ALL STAGES OF THE TRIAL. THE US ADVISORS DRAFTED THE TRIBUNAL'S STATUTE; DETERMINED THE TRIAL VENUE AND WHAT CHARGES WOULD BE BROUGHT; RESEARCHED, COMPILED, STORED, AND PREVENTED ACCESS TO EVIDENCE AND DOCUMENTATION; SELECTED AND TRAINED THE JUDGES; AND MICRO-MANAGED THE PROCEEDINGS."

[NOTE: IN LIGHT OF THE STRONG AMERICAN INVOLVEMENT IN SADDAM HUSSEIN'S SHOW TRIAL, COUPLED WITH THE CONSTANT CLAIMS OF THE BUSH2 ADMINSTRATION THAT THE TYRANT WAS GUILTY OF THE MOST DESPICABLE ATROCITIES, E.G., "GASSING HIS OWN PEOPLE," DO YOU FIND IT UNUSUAL THAT THE BEST EXAMPLE OF HIS ATROCIOUS CONDUCT AND THE ONE THAT BROUGHT HIM DEATH BY HANGING WAS HIS ACTION IN INVESTIGATING THE ATTEMPT ON HIS LIFE AND AUTHORIZING THE EXECUTION OF 102 PERSONS WHO HAD BEEN CONVICTED IN IRAQI COURTS OF TRYING TO KILL HIM? WHAT DO YOU THINK WOULD HAVE HAPPENED TO LEE HARVEY OSWALD IF HE HAD BEEN CONVICTED OF KILLING JFK? DO WE RECALL WHAT HAPPENED TO THE CONSPIRATORS WHO DID KILL OUR PRESIDENT LINCOLN? ]

DEATHS AND DEFICITS - UNCLE SAM HEMORRHAGES FROM WAR WOUNDS? THE COST OF THE ONGOING WAR TO THE US HAS EXCEEDED A TRILLION ($1,000,000,000,000) OF TAXPAYER MONEY. NOBEL PRIZE WINNING ECONOMIST JOSEPH STIGLITZ SAYS IT WILL BE MUCH MORE. SEE THE THREE TRILLION DOLLAR WAR. THESE FIGURES REVEAL THAT THE WAR IN IRAQ WILL COST EACH MAN, WOMAN AND CHILD (ASSUME 350,000,000 PEOPLE) IN THE US $10,000. THAT'S $40,000 CASH FOR A FAMILY OF FOUR. AS THE AMERICAN ECONOMY SELF-DESTRUCTS INTO A RECESSION OF MORTGAGE DELINQUENCIES, PLUNGING VALUE OF THE DOLLAR, A FALLING STOCK MARKET, ETC., SOME $16,OOO,OOO AN HOUR AND $12 BILLION A MONTH GUSHES FROM THE COUNTRY'S TREASURY TO PAY FOR THE IRAQ WAR. [NOTE; FORTUNATELY THUS FAR, THE US HAS BEEN ABLE TO BORROW $2 BILLION A DAY FROM THE CHINESE, JAPANESE, AND OTHER FOREIGNERS WHO PURCHASE OUR TREASURY OBLIGATIONS. BUT WITH 9O-DAY TREASURY BILLS YIELDING 0.01% IN SPRING 2009, (YES, THAT'S IT, BASICALLY A ZERO YIELD), ONE WONDERS HOW LONG THE CHINESE WILL PAY FOR OUR WAR EFFORTS.]

CAN THE U.S. SOLVE THE SECTARIAN VIOLENCE BETWEEN RELIGIOUS FACTIONS? IN 2007 THE CONFLICT PRECIPITATED WHAT APPEARED TO MANY FAIR-MINDED OBSERVERS AS A VIOLENT CIVIL WAR BETWEEN SHI'ITES AND SUNNIS WITH THOUSANDS OF TORTURED AND MURDERED BODIES, POPPING UP LIKE MUSHROOMS IN THE DARK OF BAGHDAD. SUNNIS FAVORED BEHEADING AND SHITES AN ELECTRIC DRILL IN THE BRAIN. IN LIGHT OF THIS EXPLOSIVE CONFLICT AND THE INABILITY OF THE SURGING U.S. FORCES AND THE US-TRAINED IRAQI POLICE TO QUELL THE VIOLENCE, IT IS BAFFLING TO SOME HOW THE LATE HUSSEIN HELD THE FRACTURED AND EMBARGOED COUNTRY TOGETHER FOR SO MANY YEARS BEFORE THE INVASION AND HIS CAPTURE? AS FUTURE LAWYERS, WE MAY PONDER IF AND HOW A FAIR DOMESTIC TRIAL FOR THIS CAPTURED FORMER IRAQI PRESIDENT COULD HAVE EVER BEEN STRUCTURED IN AN AMERICAN OCCUPIED IRAQ? WOULD A TRIAL OF THE DEPOSED PRESIDENT HAVE BEEN BETTER DONE IN AN INTERNATIONAL SETTING, E.G., THE HAGUE? (1), (2 - 92 PAGE REPORT) THE ANSWER TO THAT QUESTION WILL ALWAYS REMAIN SPECULATIVE. DO KEEP IN MIND THAT A DEATH PENALTY WOULD NOT HAVE BEEN POSSIBLE IF HUSSEIN HAD BEEN PUT TO TRIAL BEFORE THE INTERNATIONAL COURT AT THE HAGUE.

BACK IN THE HOMELAND, THE SUPREME COURT IS FACED WITH FALLOUT LEGAL QUESTIONS THAT HAVE MORAL AND POLITICAL IMPLICATIONS: IN OUR OWN COUNTRY, ON THE ISSUE OF EROSION OR HIJACKING OF INDIVIDUAL RIGHTS OF AMERICANS TO FREEDOM FROM UNWARRANTED GOVERNMENT INTRUSION, WE HAVE SEEN THE EVENTS OF 9/11 GIVE RISE TO THE SO-CALLED "PATRIOT" ACT (1) (REAUTHORIZED ON 3-9-2006) SEE HILLARY & KUBASEK, THE REMAINING PERILS OF THE PATRIOT ACT: A PRIMER, 8 J. L. SOC'Y (NO. 2 2007). AS THE EXECUTIVE BRANCH, BACKED UP BY A STAINED JUSTICE DEPARMENT, FLEXED ITS AUTHORITY WITH THE PRESIDENT'S CLAIM TO HAVE POWER TO ARREST ANYONE ANY PLACE AND HOLD THAT PERSON INCOMMUNICADO, WE HAVE SEEN AMERICAN CITIZENS, E.G., JOSE PADILLA, SUSPECTED OF VAGUE TIES TO AL KAEDA HELD INCOMMUNICADO FOR OVER THREE YEARS IN THE BRIG OF A NAVAL VESSEL IN CHARLESTON HARBOR, NC. SEE RUMSFELD V. PADILLA, 542 U.S. 426 (2004). (NOTE: 0N 4-3-2006, THE USSC, WITH JUSTICES SOUTER, GINSBERG, AND BREYER DISSENTING, SIDESTEPPED A CHALLENGE TO THE BUSH ADMINISTRATION'S WARTIME DETENTION POWERS BY REFUSING TO HEAR CITIZEN PADILLA'S APPEAL OF HIS LENGTH OF HIS DETENTION AS AN "ENEMY COMBATANT" WITHOUT CHARGES AND WITHOUT ACCESS TO A LAWYER; THE USSC REFUSAL WAS APPARENTLY GROUNDED ON THE FACT THAT THE GOVERNMENT DID EVENTUALLY CHARGE PADILLA CRIMINALLY IN LATE 2005. IN JANUARY OF 2008, AFTER THE GOVERNMENT SPENT MANY MILLIONS OF TAXPAYER DOLLARS ON THE PADILLA CASE, JOSE WAS SENTENCED TO 17 YEARS AND 4 MONTHS, HARDLY REFLECTIVE OF THE "ARCH TERRORIST" THAT THE GOVERNMENT HAD TRIED TO PAINT.) WE HAVE SEEN OUR SUPREME COURT COURAGEOUSLY REPUDIATE BUSH2'S EFFORTS TO SET UP ILLEGAL MILITARY COMMISSIONS TO TRY GUANTANAMO BAY, CUBA, DETAINEES. SEE HAMDAN V. RUMSFELD, 548 U.S. 557 (2006), A 5-3 DECISION WITH JUSTICES ALITO, SCALIA, AND THOMAS BACKING BUSH2, HOLDING THAT SUCH EFFORTS BY THE EXECUTIVE BRANCH VIOLATED BOTH  US LAW AND THE GENEVA CONVENTIONS (INTERNATIONAL LAW) (1). SEE ALSO RASUL V. BUSH, 542 U.S. 466 (2004), AND HAMDI V. RUMSFELD, 542 U.S. 507 (2004) (1) HOLDING THAT DETAINEES HAVE THE RIGHT OF ACCESS TO COURTS AND COUNSEL.  [PLAINTIFF RUMSFELD IS THE FORMER SECRETARY OF DEFENSE. SOME MIGHT SAY "DEFENSE" IS A EUPHEMISM FOR "WAR," WHICH IS WHAT IT USED TO BE CALLED.] IN LATE 2006, THE CONGRESS ATTEMPTED TO RESPOND TO THE HAMDAN DECISION WITH THE LESS-THAN-COMPREHENSIVE MILITARY COMMISSIONS ACT OF 2006 (1 - MILITARY TRIBUNALS), (2 - QUIK GUIDE), (3 - NEWS), (4). UNDER THE ACT, THE PRISONERS WERE NOT ALLOWED TO HAVE LAWYERS AT THE MILITARY RUN HEARINGS AND COULD NOT SEE OR CHALLENGE MUCH OF THE EVIDENCE AGAINST THEM. IN BOUMEDIENE ET AL. V. BUSH, PRESIDENT OF THE UNITED STATES, 553 US 723(2008), (DECIDED 6-12-08), (1), SEE VIDEO IN SIDEBAR, THIS SYSTEM WAS CHALLEGED BY 37 OF THE GUANTANAMO BAY PRISONERS WHO HAVE BEEN HELD IN INDEFINITE ISOLATED DETENTION FOR OVER SIX YEARS; THE ISSUE FOR THE USSC WAS WHETHER THESE DETAINEES HAVE A CONSTITUTIONAL RIGHT TO SEEK COURT REVIEW OF THEIR DETENTION OR WHETHER THE MILITARY-RUN COMMISSION SYSTEM SET UP BY CONGRESS TO OVERSEE THEM PROVIDED A SUFFICIENT ALTERNATIVE. THE USSC IN A 5-4 DECISION (MAJORITY OPINION AUTHORED BY JUSTICE KENNEDY WITH THE BUSH APPOINTEES DISSENTING) RULED THAT THE FOREIGN TERRORISM SUSPECTS HELD IN GUANTANAMO WERE ENTITLED TO CHALLENGE THEIR CUSTODY IN US CIVILIAN COURTS BY WAY OF HABEAS CORPUS. WE NOW KNOW THAT BUSH2, FEARING THAT THE USSC WOULD ORDER THAT COUNSEL BE PROVIDED, WHISKED SOME SUSPECTED TERRORISTS OUT OF GITMO TO CIA "BLACK SITES" IN MOROCCO, POLAND AND ROMANIA WHERE THEY COULD BE SUBJECTED TO "ENHANCED INTERROGATION TECHNIQUES" WITHOUT SUPREME COURT INTERFERENCE (1). BY ITS RULING STRIKING DOWN THE EFFORTS OF PRESIDENT BUSH2 AND HIS REPUBLICAN DOMINATED CONGRESS TO DENY PETITIONERS THE CONSTITUTIONAL PRIVILEGE OF HABEAS CORPUS. A FEDERAL JUDGE LATER ORDERED BOUMEDIENE'S RELEASE. SEE VIDEO. [NOTE: THE PENTEGON HAS ALLOWED ITSELF TO BE THE FOIL OF THE BUSH ADMINISTRATION'S EFFORTS TO USE THE MILITARY COMMISSIONS TO PROSECUTE PEOPLE FOR OFFENSES NOT HISTORICALLY CONSIDERED TO BE WAR CRIMES AND/OR NOT COMMITTED IN THE COURSE OF WAR, I.E., COMMISSIONS SHOULD HAVE JURISDICTION ONLY WHEN WE ARE AT WAR AND WHEN THE OFFENDER HAS COMMITTED A WAR CRIME.  THE ONLY MILITARY HERO IN THE WHOLE AFFAIR IS AIR FORCE COLONEL MORRIS DAVIS, WHO SERVED AS CHIEF PROSECUTOR FOR THE OFFICE OF MILITARY COMMISSIONS FOR OVER TWO YEARS UNTIL SUBMITTING HIS RESIGNATION IN OCTOBER OF 2007. COLONEL DAVIS CAME FORWARD AND REVEALED THAT THE COMMISSION SYSTEM WAS POLITICALLY RIGGED TO ACHIEVE CONVICTIONS AT ALL COSTS; THIS COURAGEOUS OFFICER TESTIFIED AT THE HAMDAN TRIAL AS A DEFENSE WITNESS THAT THE SYSTEM IS BEING RUN BY POLITICALLY MOTIVATED BUSH ADMINISTRATION APPOINTEES WHO HAVE REPEATEDLY TRIED TO INTERFERE WITH THE PROFESSIONAL JUDGMENT OF THE CHIEF PROSECUTOR; HE ALSO CRITICIZED THE GOVERNMENT'S APPARENT WILLINGNESS TO RELY ON EVIDENCE OBTAINED BY TORTURE. GOVERNMENT REPRISALS WERE TAKEN AGAINST HIM FOR HIS CANDOR.] FOR AN INSIGHT INTO AMERICAN TORTURE OF PRISONERS, WATCH THE ACADEMY AWARD-WINNING DOCUMENTARY HBO FILM "TAXI TO THE DARK SIDE. (1) (2) BY ALEX GIBNEY. SEE ALSO RATNER, THE TRIAL OF DONALD RUMSFELD: A PROSECUTION BY BOOK (NEW PRESS 2008).

NOTE: THE FIRST "SHOW TRIAL" UNDER THE COMMISSIONS ACT TOOK PLACE IN SUMMER 2008. SALIM AHMED HAMDAM, A 4TH GRADE EDUCATED, $200 A MONTH DRIVER FOR OSAMA BIN LADEN WAS TRIED BY A SIX-OFFICER MILITARY PANEL FOR A SLOUGH OF "TERRORISTIC OFFENSES." (FOR PROCEDURE, SEE UNIFORM CODE OF MILITARY JUSTICE AND MILITARY COMMISSION.) SURPRISINGLY, THIS GROUP OF MILITARY OFFICERS ACQUITTED HAMDAN OF SEVERAL OFFENSES, INCLUDING CONSPIRACY IN THE 911 ATTACK AND SEVERAL COUNTS OF TERRORISM; HE WAS CONVICTED ON 5 COUNTS OF AIDING TERRORISM. EVEN MORE SURPRISINGLY TO MANY WHO RECKONED THAT THE FIX WAS IN FOR A DRACONIAN SENTENCE, ON 8-7-08, HAMDAN WAS SENTENCED TO A TOTAL OF 5 AND 1/2 YEARS WITH CREDIT FOR 5 YEARS AND 1 MONTH THAT HE HAD SPENT IN GOVERNMENT CUSTODY WHILE WAITING TRIAL. THERE ARE STILL QUESTIONS REGARDING THE PROCEDURE FOLLOWED BY THE COMMISSION IN HAMDAN'S TRIAL, EG., HEARSAY AND SECRET TESTIMONY WAS ALLOWED, NO MIRANDA WARNINGS OF RIGHTS WERE REQUIRED, AND INTERROGATORS WERE PERMITTED TO USE COERCION SUCH AS SLEEP DEPRIVATION AND SOLITARY CONFINEMENT TO FORCE THE ACCUSED TO TALK. THE JUDGE AND JURY WERE A GROUP OF OFFICER SOLDIERS, ALL EMPLOYED BY THE GOVERNMENT THAT PROSECUTED HAMDAN. A UNANIMOUS VERDICT WAS NOT REQUIRED, 2/3RD BEING ENOUGH. YET, IT APPEARS THAT THESE MILITARY OFFICERS DID THEMSELVES AND THE SERVICE PROUD BY SHUNNING THE PENTAGON PROSECUTORS' REQUEST FOR A SENTENCE OF THIRTY YEARS TO LIFE, PERHAPS RISKING THEIR HOPES FOR FUTURE ADVANCEMENT IN THE HIGHLY AUTHORITARIAN AND POLITICAL US MILITARY HIERARCHY. SEMPER FI. COMPARE THE TRIAL OF CONVICTED AMERICAN CITIZEN/TERRORIST AHMED OMAR ABU ALI IN THE CIVILIAN CRIMINAL COURT.
 
INTERESTING ASIDE FOR THOSE WITH LAW LICENSES: AS A POTENTIAL WARNING TO OVERLY ZEALOUS LAWYERS, WE ALSO SAW LAWYER LYNN STEWART FOR SHEIKH ABDEL RAHMAN (THE SO-CALLED "BLIND SHEIKH" WHO WAS CONVICTED IN OCTOBER OF 1995 OF CONSPIRACY TO BOMB NEW YORK CITY LANDMARKS) CHARGED, TRIED, AND CONVICTED UNDER 18 U.S.C. 2339B WITH KNOWINGLY PROVIDING MATERIAL SUPPORT TO A FOREIGN TERRORIST ORGANIZATION. SEE UNITED STATES V. SATTAR, 272 F. SUPP. 2D 348 ( S.D.N.Y. 2003). STEWART'S PLIGHT AND HER EVENTUAL RAW JUSTICE 10-YEAR SENTENCE MAY HAVE A CHILLING INFLUENCE ON THE RIGHT TO COUNSEL.

OUR PRIVACY AND THE GOVERNMENT'S EFFORTS TO SPY ON US -THREAT TO CIVIL LIBERTIES? : IN THE BACKGROUND OF SOPHOMORIC, BEHIND-THE-FRONTLINE "BRING IT ON" AND "SMOKE 'EM OUT" BRAVADO, BUSH2, WHILE CALLING FOR A PERMANENT EXTENSION OF THE PATRIOT ACT, ADMITTED, IN DECEMBER OF 2005, THAT HE HAD AUTHORIZED NUMEROUS INSTANCES OF ELECTRONIC EAVESDROPPING (WARRANTLESS SPYING) ON AMERICANS WITHOUT ANY PRIOR JUDICIAL AUTHORIZATION AND WITHOUT THE PROTECTION OF THE FOURTH AMENDMENT PROBABLE CAUSE/WARRANT REQUIREMENT.AFTER BUSH2 LEFT OFFICE IT WAS DISCLOSED THAT THE ILLEGAL SPYING HAD BEEN WIDESPREAD, INCLUDING JOURNALISTS. THE PRESIDENTIAL RHETORIC OF BUSH2 SOMETIMES  EMPHASIZED THE VALUE OF  LIBERTY AND THE RULE OF LAW, BUT SOME HAVE POINTED OUT THAT SOME ACTIONS OF THE SOMETIMES PETULANT CHIEF EXECUTIVE'S ADMINISTRATION BELIED THE FUNDAMENTAL AMERICAN VALUES THAT ONCE MADE THE UNITED STATES A BEACON OF HOPE IN THE HISTORY OF MANKIND. [NOTE: HIDDEN IN THE 591-PAGE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL 2007 WERE SOME CHANGES WHICH MAKE IT EASIER FOR THE PRESIDENT TO DEPLOY THE MILITARY WITHIN THE UNITED STATES. (1) (2 - July- August ed.] EVEN MORE FRIGHTENING TO THOSE WHO ARE MORE CONCERNED WITH PROTECTING PRIVACY (1) AND CIVIL LIBERTIES IN THE FACE OF THE POLITICAL FEAR MONGERING, IN JULY OF 2008 THE UNPOPULAR, LAME DUCK PRESIDENT SIGNED THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA), AN ACT PASSED BY A DEMOCRAT-RULED CONGRESS, AUTHORIZING SECRET GOVERNMENT EAVESDROPPING AND ELECTRONIC SURVEILLANCE BOTH WITH AND WITHOUT PRIOR JUDICIAL AUTHORIZATION FROM THE SPECIAL FISA COURT HOUSED IN THE JUSTICE DEPARTMENT [NOTE: IN A COURAGEOUS ACT, FORMER DOJ FISA COURT ATTORNEY THOMAS TAMM REVEALED THAT THE BUSH ADMINSTRATION CONDUCTED ILLEGAL SURVEILLANCE WITHOUT SEEKING FISA COURT APPROVAL.]; THE ACT ALSO GRANTS IMMUNITY TO TELECOMMUNICATIONS COMPANIES THAT HELP THE GOVERNMENT SPY ON AMERICANS.

SOME QUESTION WHETHER THE U.S. GOVERNMENT'S CURE HAS BEEN PERHAPS WORSE THAN THE THREAT. SEE THE ACLU PAPER: THE US - A SURVEILLANCE SOCIETY. CONCERNING THE DANGER OF TERRORISM AND THE DANGER OF LOSING PRECIOUS CIVIL LIBERTIES, WASN'T IT JAMES MADISON WHO SAID, " I BELIEVE THERE ARE MORE INSTANCES OF THE ABRIDGMENT OF THE RIGHTS OF THE PEOPLE BY THE GRADUAL AND SILENT ENCROACHMENTS OF THOSE IN POWER THAN BY VIOLENT AND SUDDEN USURPATIONS." I RECENTLY READ THIS DEFINITION OF A "SELF-FULFILLING PROPHECY" : "THE SELF-FULFILLING PROPHECY IS, IN THE BEGINNING, A FALSE DEFINITION OF THE SITUATION EVOKING A NEW BEHAVIOR WHICH MAKES THE ORIGINALLY FALSE CONCEPTION COME TRUE. THE SPECIOUS VALIDITY OF THE SELF-FULFILLING PROPHECY PERPETUATES A REIGN OF TERROR. FOR THE FALSE PROPHET WILL CITE THE ACTUAL COURSE OF EVENTS AS PROOF THAT HE WAS RIGHT FROM THE START." FOR MORE INFORMATION, SEE (1), (2), (3), (4), (5), (6 - DISTURBING BITS AND PIECES OF INFORMATION ABOUT THOSE DETAINED AT GITMO), (8 - WHITE HOUSE REPORT SUPPORTING PREEMPTIVE DEADLY FIRST STRIKES AGAINST PERCEIVED ENEMIES). FOR THOSE INTERESTED IN THE 9/11 REPORT RESULTING FROM AN INVESTIGATION PROMPTED BY FAMILIES OF 9/11 VICTIMS AND OPPOSED BY THE ADMINISTRATION, THIS SITE (1) CONTAINS A SUMMARY.  IF YOU DON'T LIKE TO READ, WATCH THE 2006 DOCUMENTARY "ON NATIVE SOIL" DETAILING OUR WORMY APPLE GOVERNMENT'S INCOMPETENCE IN REACTING TO THE THREAT OF 9/11 AND THE ACTUAL 9/11 ATTACK ITSELF. ALSO READ NAOMI KLEIN'S THE SHOCK DOCTRINE: THE RISE OF DISASTER CAPITAL (2007) (WATCH THIS VIDEO OF KLEIN'S 55- MINUTE LECTURE) (1) DOCUMENTING THE ACTIONS OF POLITICIANS IN ASSISTING CORPORATIONS TO TAKE OVER THE TREASURY OF OUR GOVERNMENT; A SELF-DESCRIBED SHORT, JEWISH GIRL, NAOMI WOLF, HAS ALSO PENNED A PROVOCATIVE BOOK, THE END OF AMERICA (WATCH WOLF'S 45-MINUTE VIDEO LECTURE), IN WHICH SHE POSITS TEN CLASSIC STEPS THAT DESPOTS EMPLOY TO CLOSE DOWN A DEMOCRACY - THE LAST STEP BEING ABOLITION OF THE RULE OF LAW. IF WAR PROFITEERING IS A CRIME AND YOU WANT A GLIMPSE OF HOW CRIME PAYS FOR AMERICIAN CONTRACTORS IN IRAQ, TAKE A PEEK AT THE TEN MINUTE TRAILER FOR THE POWERFUL DOCUMENTARY IRAQ'S MISSING BILLIONS . JULY OF 2010 BROUGHT NEWS THAT THE PENTAGON IS UNABLE TO ACCOUNT FOR $8.7 BILLION IN IRAQ OIL AND GAS MONEY THAT WAS SLATED TO BE USED FOR RECONSTRUCTION. MY QUESTION TO YOU AS AN AMERICAN CITIZEN WHO IS STUDYING LAW IS THIS: FROM THE LAWYER'S PERSPECTIVE, IS YOUR GENERATION WITNESSING A POWER EXPANDING EFFORT ON THE PART OF THE EXECUTIVE BRANCH OF GOVERNMENT THAT WILL TRANSFORM THE CITIZEN'S RELATIONSHIP TO THE STATE IN THIS COUNTRY FOR DECADES TO COME OR IS ALL OF THIS A TEMPORARY POWER-GRAB THAT CAN EASILY BE SET RIGHT BY A CONCERNED CITIZENRY?

[ASIDE RE MORE ORGANIZED KILLING - THE ISRAELI-PALESTINIAN CONFLICT: THE 2006 ATTACK ON LEBANON - IN AN ARGUABLY ANALAGOUS MOVE, WITH AT LEAST TACIT APPROVAL OF THE BUSH2 ADMINISTRATION, ISRAEL INVADED SOUTHERN LEBANON IN JULY OF 2006, AFTER BOMBING IT TO SMITHEREENS; THE PROPOSED CASUS BELLI FOR THE MASSIVE ISRAELI ATTACK - RETALIATION FOR AN OVER-THE-BORDER RAID BY HEZBOLLAH GUERILLAS IN WHICH TWO ISRAELI SOLDIERS WERE CAPTURED AND EIGHT WERE KILLED. DURING THE FIRST WEEKS OF THE WAR, THE REPORTED KILL RATIO WAS 10:1 IN FAVOR OF THE AMERICAN-ARMED ISRAELIS, WITH 80% OF THE LEBANESE CASUALTIES BEING NON-COMBATANT CIVILIANS; ALMOST A MILLION FLEEING LEBANESE BECAME REFUGEES. WHEN THE LEBANESE, INCLUDING HEZBOLLAH, GATHERED THEMSELVES, FOUGHT BACK, AND GAINED THE UPPER HAND, THE ISRAELIS HASTILY WITHDREW; BUT AS A LEGACY THEY AIR CARPETED SOUTHERN LEBANON WITH HUNDREDS OF THOUSANDS OF US MADE CLUSTER BOMBS. FOR SOME INSIGHT INTO THIS AGE-OLD CONFLICT, READ, JIMMY CARTER'S, PALESTINE: PEACE NOT APARTHEID (2006); STRANGE ABOUT JIMMY CARTER - HE BECAME, BEYOND A REASONABLE DOUBT, THE MOST ADMIRABLE PRESIDENT OF THE TWENTIETH CENTURY AFTER HE LEFT OFFICE. CICERO TAUGHT "NOT TO KNOW WHAT HAPPENED BEFORE ONE WAS BORN IS TO ALWAYS REMAIN A CHILD."  IF YOU WOULD LIKE TO THINK LIKE A GROWN-UP, READ CARTER'S HISTORY OF THE PALESTINIAN-ISRAELI CONFLICT. IT MAY SURPRISE YOU. UPDATE TO ASIDE: THE ATTACK ON GAZA - DECEMBER 08-JANUARY 09 - ISRAEL CONTINUED ITS MASSIVELY DESTRUCTIVE AGGRESSION AGAINST THE BELEAGUERED PALESTINIAN RESIDENTS OF BLOCKADED GAZA (1), DROPPING 100 TONS (200,000 LBS.) OF BOMBS (SOME OF THEM OUTLAWED WHITE PHOSPHORUS THAT KEEPS ON BURNING ITS VICTIMS UNTIL DEPRIVED OF OXYGEN) ON GAZA (INCLUDING MOSQUES, PRIVATE HOMES, ORHANAGES, HOSPITALS, ETC.) IN A MIDDAY ATTACK WHEN HUGE PROPORTIONS OF THE 800,000 CHILDREN OF GAZA WERE ON THE STREETS; FACED WITH AN OVERWHELMINGLY SUPERIOR MILITARY FORCE AND TRAPPED WITH THE ISRAELI WALL ON TWO SIDES AND THE ISRAELI CONTROLLED MEDITERRANEAN OCEAN AND CLOSED EGYPTIAN BORDER ON THE OTHERS, AND WITH NO SHELTER AVAILABLE, AT LEAST ELEVEN-HUNDRED INNOCENT CIVILIANS (OVER 450 CHILDREN) WERE KILLED (MURDERED?) WITH AMERICAN-MADE MISSILES, COMBAT F16 FIGHTERS, AND APACHE HELIOCOPTER GUNSHIPS BOMBING FROM THE ISRAELI CONTROLLED AIRSPACE OVER GAZA; (QUERY: IS THE US A COMPLICITOR TO THESE DEATHS?); THE ISRAELI ARMY, SOME OF WHOM USED CHILDREN AS HUMAN SHIELDS, ACHIEVED AN OVER 100:1 KILL RATIO OF PALESTINIANS TO ISRAELIS. FOR INSIGHT ON THIS HUMAN CARNAGE FROM A GAZA RESIDENT, READ THE A-MOTHER- FROM-GAZA BLOG AND NORMAN FINKELSTEIN'S THIS TIME WE WENT TOO FAR. THE UN SECURITY COUNCIL CALLED FOR A CEASE FIRE, THE ONE ABSTENTION - THE UNITED STATES, WITH THE BUSH2 ADMINISTRATION CONTINUING ITS "ISRAEL CAN DO NO WRONG" POLICY. AFTER TWENTY-THREE DAYS OF BOMBARDMENT, ISRAEL CALLED A UNILATERAL CEASE-FIRE TO ITS AIR , LAND, AND SEA ATTACK, ONE DAY BEFORE PRESIDENT OBAMA WAS INAUGURATED. AFTERMATH TOTALS: 10 ISRAELI SOLDIERS DEAD, 40 LIGHTLY ARMED HAMAS FIGHTERS DEAD, AND 5,000 INNOCENT PALESTINIANS EITHER DEAD OR WOUNDED. WE HEAR MUCH OF THE ROCKET ATTACKS BY HAMAS ON ISRAEL; THE FACTS: DURING THE PAST 8 YEARS, 3 ISRAELIS (3 TOO MANY) HAVE BEEN KILLED WITH THE 5000 HOMEMADE ROCKETS SENT AGAINST THEM FROM GAZA; THE TINY GAZA STRIP (140 SQ. MILES) IS HOME TO 1.4 M; 900,000 ARE REFUGEES; 80% ARE UNEMPLOYED; GAZA IS BLOCKADED BY ISRAEL; THE UN PROVIDES FOOD , EDUCATION, AND HEALTH SERVICES TO OVER HALF THE GAZA POPULATION AT A COST OF 10 CENTS A DAY PER PERSON (4-4-2 CENTS); OVER 50% OF THE POPULATION ARE UNDER 18; AVERAGE AGE -15; LITERACY RATE OF THE POPULATION 92%, YES, 92%. FURTHER UPDATE: WAR CRIMES AND CRIMES AGAINST HUMANITY? IN OCTOBER 0F 2009, THE UN HUMAN RIGHTS COUNCIL ADOPTED A REPORT PRODUCED BY A MISSION LED BY JUDGE RICHARD GOLDSTONE, A JEW, ZIONIST, BOARD MEMBER OF THE HEBREW UNIVERSITY OF ISRAEL AND COURAGEOUS CHAP, CONCLUDING THAT ISRAEL WAS GUILTY OF WAR CRIMES AND POSSIBLE CRIMES AGAINST HUMANITY IN ITS 22-DAY ATTACK AGAINST GAZA. THE REPORT ALSO CONDEMNED HAMAS FOR FIRING NUMEROUS HOMEMADE ROCKETS INTO ISRAELI TERRITORY. (WATCH FRONTLINE - REPORT OF THE GOLDSTONE MISSION ) FOR MANY YEARS THE US TAXPAYERS HAVE PROVIDED THREE THOUSAND MILLION DOLLARS ($3B) IN DIRECT FOREIGN AID TO ISRAEL EVERY YEAR, INCLUDING $7,000,000 A DAY IN U.S. TAXPAYER AID FOR THE ISRAELI MILITARY; SOME WOULD SAY THAT THE STANDARD OF LIVING, INCLUDING UNIVERSAL HEALTHCARE, FOR CITIZENS OF ISRAEL IS SUBSTANTIALLY HIGHER THAN THAT OF THE US. ON MAY 30, 2010, ISRAELI COMMANDOS BOARDED A FLOTILLA OF UNARMED SHIPS IN INTERNATIONAL WATERS KILLING  PRIVATE CITIZENS WHO WERE PART OF A GROUP SEEKING TO DELIVER HUMANITARIAN AID, E.G., FOOD AND MEDICINE, TO GAZA. (1) SEE SIDEBAR VIDEO. (HISTORY - ISRAEL ATTACKS EGYPT TO START THE 6-DAY WAR IN 1967)

MUTTERINGS

DO YOU THINK ANY OF THE BUSH2 CROWD OF "ONLY A FOOL PLAYS BY THE RULES" POLITICIANS WENT TO SLEEP READING MACHIAVELLI? HERE'S A TIDBIT FROM NICCOLO THAT THEY SEEMED TO HAVE DIGESTED:

"OCCASIONALLY WORDS MUST SERVE TO VEIL THE FACTS. BUT THIS MUST HAPPEN IN
SUCH A WAY THAT NO ONE BECOMES AWARE OF IT; OR, IF IT SHOULD BE NOTICED,
EXCUSES MUST BE AT HAND, TO BE PRODUCED IMMEDIATELY."

WHILE PONDERING THE TRAGEDY OF THOUSANDS OF YOUNG AMERICANS WHO LOST LIFE AND LIMB ON THE GROUND IN IRAQ, I WONDERED HOW I WOULD FEEL ABOUT FOREIGN INVADERS WHO MIGHT COME AND OCCUPY MY HOMELAND AND TRY TO FORCE A FORM OF GOVERNMENT UPON ME AT THE MUZZLE OF AN ASSAULT RIFLE,  I RAN ACROSS THIS THOUGHT PROVOKING POEM ABOUT OLD MEN TALKING AND YOUNG MEN DYING. IT'S FROM AN EARLY TWENTIETH CENTURY SPORTSWRITER:

TWO SIDES OF WAR

All wars are planned by old men, in council rooms apart,
Who plan for greater armament and map the battle chart.
But out along the shattered fields, where golden dreams turn gray,
How very young their faces were, where all the dead men lay.

Portly and solemn in their pride, the elders cast their vote,
For this or that, or something else, that sounds the warlike note.
But where their sightless eyes stare out, beyond life's vanished joys,
I've noticed nearly all the dead were hardly more than boys.

  Grantland Rice

IT SEEMS LIKE MR. RICE IS SAYING THAT OLD SOLDIERS NEVER DIE, JUST YOUNG ONES. FROM WATCHING THE WEEKLY SUNDAY MORNING NEWS "IN MEMORIUM" LIST OF KIA AMERICAN SOLDIERS, IT STRIKES ME THAT MR. RICE GOT IT RIGHT WHEN HE SUGGESTS WHEN RICH OLD MEN WAGE WAR, IT'S THE POOR YOUNG ONES WHO DIE. SPEAKING OF OLD SOLDIERS, HOW ABOUT THIS THOUGHT FROM ONE OF OUR MOST REVERED GENERALS/PRESIDENTS ABOUT THE POLITICS OF FEAR:

We will bankrupt ourselves in the vain search for absolute security.
Dwight David Eisenhower

War

War is by definition the indiscriminate killing of huge numbers of people for ends that are uncertain. 
Think about means and ends, and apply it to war.  The means are horrible, certainly.  The ends, uncertain.
That alone should make you hesitate....We are smart in so many ways.  Surely we should be able
to understand that between war and passivity, there are a thousand possibilities.

Howard Zinn

FROM A GERMAN CORPORAL ON THE NATURE OF MANKIND:

What luck for rulers that men do not think.
Adolph Hitler
Crazy Austrian Housepainter
(Later German Chancellor & Fuhrer)
(Note: He and Napoleon had one testicle, each!)

PRINCIPAL AUTHOR OF THE DECLARATION OF INDEPENDENCE

No people can be both ignorant and free.
Third President of the United States

AND ON THE DANGER OF LOSING OUR TREASURED LIBERTY BY INCREMENTS:

The true danger is when liberty is nibbled away, for expedience, and by parts.
Edmund Burke
 
The greatest dangers to liberty lurk in insidious encroachments by men of zeal,
well-meaning, but without understanding.
Louis Brandeis  Olmstead v. U.S, 277 U.S. 438 (1928)

Nightfall doesn't come at once, neither does oppression. In both instances, there is a twilight
when everything remains seemingly unchanged, and it is in such twilight that we must all be
aware of change in the air - however slight - lest we become unwitting victims of the darkness.
W.O. Douglas

AND ON OUR NATIONAL PREDICAMENT:

Our craven rulers falter.
Our people drift and die.
The walls of gold entomb us.
The swords of scorn divide.
Take the thunder from us,
and banish our false pride.
From all that terror teaches,
From lies of tongue and pen,
From all the easy speeches
That come from cruel old men,
From sale and profanation
Of honor and the sword,
From apathy and damnation,
Deliver us, dear Lord.
Adapted from a poem by G.K. Chesterton

AND A PARODY OF OUR NEW ROLE IN THE WORLD:

Pissed off at your leaders? Ask us about our new "Regime Change" policy!
For no money down, we'll invade your country and destroy its infrastructure, leveling your homes and ensuring the death of several hundred thousand of your citizens in the process. While we are doing all that, we'll drain our own national treasury bone-dry "rebuilding" your society so that your living conditions will be worse than before we invaded you. Oh yeah, as a bonus we can almost guarantee a religious civil war that will last for years after we've reduced your culture to Iron Age shambles and departed, leaving only a small number of our crack troops at the permanent base we will build on
your land, along with a gaggle of highly-paid mercenary cowboys, to safeguard your liberated and democratized oil fields and pipelines.

AND ON WHAT WE SEE WHEN WE LOOK IN THE MIRROR:
National self-respect and honor,
when we desert these ideals, our decline begins.
Let's stop bragging that we are the greatest
country in the world and start acting like it.

CRITICIZING THE COMMANDER-IN-CHIEF
To announce that there must be no criticism of the president, or that we are to stand by the president,
right or wrong, is not only unpatriotic and servile, but  is morally treasonable to the American public.
Theodore Roosevelt

Of all the enemies of true liberty, war is, perhaps, the most to be dreaded…. In war…the discretionary power of the executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people…. No nation can preserve its freedom in the midst of continual warfare…. War is in fact the true nurse of executive aggrandizement. (1)

James Madison on War
                                                                                                                       "Political Observations”
April 20, 1795

Mark Twain pointed out, in words to this effect, that soldiers are people who by natural disposition or training have as their conscious objective and desire the goal of killing large numbers of other people to whom they have not been introduced.

War is an ugly thing, but not the ugliest of things.  The decayed and degraded state of moral and patriotic feeling that thinks that nothing is worth war is much worse.  The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself.
John Stuart Mill

AND, FINALLY, THE INDUCTIVE CONCLUSION THAT ONE MIGHT LOGICALLY
AND MORALLLY DRAW FROM THE EVIDENCE

Something may be worth a war, but not this!
Can it be morally argued that the next time we decide to kill off the population of another country and sacrifice the lives and limbs of thousands of young Americans,  it should be only because we have either been attacked by that country or are in danger of immediate attack. No more preemptive killing of people who have neither threatened nor used deadly force against us!

[Facts: The U.S. is the biggest arms dealer in the world.
We have far more weapons than any other country.
The War in Iraq began on March 19, 2003; on August 7, 2010, amid bombings in at least 13 Iraqi cities, control over all combat duties was handed over by the U.S. to Iraqi security forces , and the last U.S. "combat troops" were removed on August 18, 2010. Final U.S. troop withdrawal from Iraq was completed on December 18, 2011. As the troops exited, they left a country with feuding political parties that had been unable to organize a government, where 75% of the homes are without sewers, the electricity intermittent, and a portion, Kurdistan, semi-autonomous. The Iraq war exceeded the length of the U.S. Civil War (4 years), World War II  (3 years 8 months), the Korean War (3 years and 1 month), and World War I (2 years and 2 months).  

The war in Afghanistan, a sideshow to the American effort to obtain political dominance
with the Pakistani government, began on October 7, 2001, and is our longest war in history.
The Pentagon in 2010 said it spent $26,000,000,000 just in trying to train the ragtag "Afghan Army."
As to the $90 billion we spent "rebuilding" Afghanistan, read this 2013 article
In 2010, the U.S. had almost 300,000 military abroad and a defense budget over 4.5 % of GDP. There are over 500 U.S. military bases sprinkled over the planet.  The Pentagon accounts for 45% of the world's total military spending, e.g., we build $15B aircraft carriers that can be sunk by a $10M missile. Since 1941, the U.S. has been at war, in one form or another, in all but fourteen years, and, since 1989, all but two years. One might logically ask: "Is perpetual war a hallmark of our American democracy?"]

In March of 2011, without Congressional authorization and without a declaration of war under Article I, section 8, clause 11 of the Constitution (the war powers clause - Video), Obama launched a half-war "of choice" against Libya supporting the successful efforts of a group of unorganized rebels to overthrow the existing government and kill its president. Obama, like Bush2, claims that his war with Libya is justified by the inherent powers of the President under Article 2 of the Constitution coupled with a U.N. Security Council resolution. Libya posed no security threat to the U.S. or to NATO. The U.S. has relied primarily on killing people (including some of the late Muammar Gadhafi's children and grandchildren) from the air with fighter jets, missiles and predator drones. See Talbot v. Seeman, (1801); Smith v. United States, 27 F. Cas. 1192 (1806); Prize Cases, 67 U.S. 635 (1862).

What TIME magazine called the "thoughtless carnage of his tenure" is embedded in history, but he is gone! Ex-President George Bush2, still favoring water torture, now occupies a Dallas mansion and his country estate in Crawford. (He spent a third of his presidency vacationing in Crawford or at Camp David.) 
Let's hope all of his successors take the following words a little more to to heart.

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States,
and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
(These are the precise words of the presidential oath of office contained in the Constitution. see Video in Sidebar)
Article II, Section 1, United States Constitution."
 
ARE OUR WARS BLEEDING US DRY?
Query: Can a democracy exist in a country that is in a perpetual state of aggressive warfare?
For those unconcerned about democracy or the hundreds of thousands of gallons of human
blood that have been shed, consider the dollar cost to those here in the "homeland,"
a term used by the Germans in WWII and adopted by the Bush2 administration (1).
The asleep-at-the-wheel U.S. Congress and the Bush2 administration spent a trillion taxpayer dollars
on the current wars. A trillion dollars is equivalent to a million million dollars - $1,000,000,000,000,
roughly $3500 for every man, woman, and child in the U.S. [2013 update: The Congressional Budget
Office now estimates that the Iraq War cost the U.S. taxpayers approximately $1.9 trillion dollars.]
A substantial portion of this money went into the hands of unscrupulous, deceitful,
greedy war profiteers and Wall Street manipulators (1). And as to the $60 billion that
we spent "rebuilding" Iraq, read this 2013 report.  As long as war is profitable,
expect that there is going to be more of it. The bank is still open.


HOMICIDE, WAR AND TEXAS

Finally, since war is all about human beings killing each other, i.e., homicide, we should ask, "Does our own little Texas Penal Code say anything about killing other people in lawful conduct of war?" Yes, it does. See Section 9.21 - Public Duty. Apparently, use of deadly force in the lawful conduct of war is a form of justifiable homicide. There's no duty to retreat. Danger is assumed. You can kill everyone in the vicinity with missiles and rockets. With your rifles and handguns, you can kill on sight. Killing by lying in wait (assassination) is very popular. Baiting and sniping those who might pick up your bait is preferred because there is no imminent danger to the shooter. But what if a war isn't lawful? What about a war founded on lies from our rulers against a country that has not attacked us and poses no substantial danger to our safety? Are we allowed to use deadly force in a so-called "preventive manner" against those who might conceivably attack us sometime in the far distant future? Do we understand that life lived in fear is life half-lived? Do we understand how fear can be used as propaganda to manipulate us to the point that we approve attacking and killing or maiming, mutilating, and/or dismembering those who originally meant us no harm? Do we understand how those we attack without moral justification may learn to hate and despise us? Do we understand that the hatred our government has sown in the Third World may well come back to haunt us in the form of terrorism? Do we believe in self-government of our country, and when our elected politicians abuse their authority and power to kill in our name and move the national treasury into corporate hands, do we have the gumption to hold them accountable? If all good things stand from moment to moment on the razor edge of danger and have to be fought for - doesn't that include good government? Is Rome burning? Do you have a nose for smoke? In the right world, people shouldn't have to fear their government, it should be the opposite. Is it ever too late to do the right thing? Maybe it's a good idea to remember the words of author, essayist and proud curmudgeon Edward Abbey - A patriot must always be ready to defend his country against his government. See Video.]

[SO MUCH FOR BUSHROD'S PHILOSOPHICAL MUSINGS AND RHETORIC ABOUT WAR AND PEACE. HERE'S THE OFFICIAL SPRINGWATER RATIONALE IN A NUTSHELL: IF WARRING FOR PEACE IS LIKE SNOGGING OR SHAGGING FOR VIRGINITY, BUSHROD MAY HAVE TO REASSESS HIS SKEPTICAL AND, PERHAPS, QUIXOTIC SENTIMENTS ABOUT THE LOGICAL EFFICACY OF UNPROVOKED MASS INTENTIONAL KILLING OF HUMANS AND WHOLESALE DESTRUCTION OF THEIR PROPERTY AND WAY OF LIFE, I.E., WAR FOR BOGUS AND FALLACIOUS REASONS.]

WHAT IS MAN? WHY IS HE HERE? DOES ANYTHING MATTER? - AFTER ALL'S SAID AND DONE, IS MAN ANYTHING MORE THAN AN AGRESSIVE, SELFISH PREDATOR, DOOMED TO DESTROY HIMSELF AND ALL AROUND HIM? DOES ANYTHING MATTER?  (WITH DUE APOLOGY TO CREATIONISTS OR ADVOCATES OF INTELLIGENT DESIGN OR UNKNOWN GOATHERDERS OF THE PAST WHO MAY PUT THE BEGINNING OF THE UNIVERSE AT CLOSER TO 6,000 YEARS AGO, E.G., SUNDAY, OCTOBER 7, 4000 B.C.) IF WE CONSIDER THE HUMAN ARM AS EQUIVALENT TO THE EXISTENCE OF THE EARTH (PLUS OR MINUS FOUR AND ONE-HALF BILLION YEARS), ALL HUMAN HISTORY WOULD DISAPPEAR WITH ONE STROKE OF AN EMERY BOARD ON THE THE TIP OF THE MIDDLE FINGERNAIL. IF THE ENTIRE KNOWN UNIVERSE, ESTIMATED EXISTENCE 13,700,000,000 YEARS (1), IS BUT ONE BUBBLE IN THE FOAM, DOES IT REALLY MATTER IN THE VAST SCHEME IF THE ANIMAL KINGDOM'S MOST REFINED PREDATOR (WITH A 3-POUND BRAIN* CAPABLE OF PERCEIVING OUR UNIVERSE AND UNLOCKING A TINY PORTION OF ITS SECRETS) GOES POSTAL AND RETURNS THE SURFACE OF THIS LITTLE PLANET TO THE STATUS OF PLUTO? STEPPED UP WARRING, ONE OF AMERICA'S FAVORITE PASTTIMES, MAY BE INEVITABLE WITH THE HEAT AND CONSEQUENT FOOD AND WATER SHORTAGES THAT FUTURE GENERATIONS WILL CERTAINLY FACE AS A RESULT OF GLOBAL WARMING OF PLANET EARTH FROM THE HEAVY CONCENTRATIONS OF ATMOSPHERIC CARBON DIOXIDE (CO2) AND METHANE (CH4) THAT WE'VE PUT UP THERE DURING THE PAST 200 YEARS. IF YOU ARE CURIOUS, READ BILL McKIBBEN'S EAARTH (2010) AND WATCH THIS VERY SHORT BUT PROPHETIC CARL SAGAN VIDEO: THAT PALE BLUE DOT. (NOTE: THERE ARE SOME GOOD CLIPS OF THE LATE SAGAN ON YOUTUBE. (1 - SAGAN & HAWKING),(2 - SAGAN'S LAST INTERVIEW; PART 2; PART 3), (3 - SAGAN INTERVIEWED BY TED TURNER - 5 PARTS), (4 - SAGAN ON OUR PLACE IN THE UNIVERSE), (5 - SAGAN ON EVOLUTION), (6 - SAGAN ON THE 4TH DIMENSION; PART 2), (7 - THE MANY WONDERFUL "COSMOS" TV PROGRAMS)

CONSIDER THIS. IT WAS ONLY A LITTLE OVER 400 YEARS PAST (CIRCA 1609) THAT AN ITALIAN MATHEMATICIAN NAMED GALILEO GALILEI BUILT A TINY REFRACTOR TELESCOPE, A TUBE WITH GLASS LENSES THAT MAGNIFIED 20X. (1) AFTER SELLING IT TO THE MILITARY, HE LOOKED TO THE SKY. FROM THE SKY, GALILEO DISCOVERED THAT THE EARTH WAS IN ORBIT AROUND THE SUN. AS A CONSEQUENCE OF THIS DISCOVERY, GALILEO GOT INTO BIG TROUBLE WITH THE CATHOLIC CHURCH THAT HAD TO REVISE ITS "WE ARE THE CENTER OF EVERYTHING" CREDO. THE ROMAN INQUISITION SENTENCED HIM TO HOUSE ARREST FOR LIFE. NEXT IN LINE WAS ICONIC SIR ISAAC NEWTON WHOSE RESEARCH IN OPTICS LED HIM IN 1668 TO DESIGN THE REFLECTOR TELESCOPE, USING MIRRORS RATHER THAN GLASS LENSES. THE TORCH WAS PASSED TO THE REMARKABLE WILLIAM HERSCHEL, A MUSICIAN TURNED ASTRONOMER, WHO REFINED NEWTON'S DESIGN AND BUILT THE MOST ADVANCED REFLECTOR TELESCOPE OF ITS TIME, DISCOVERING THE PLANET URANUS  IN 1781. UNTIL HERSCHEL, WE DID NOT KNOW WE LIVED IN A GALAXY (THE MILKY WAY).  AT THE DAWN OF THE 2OTH CENTURY, THE MILKY WAY GALAXY, WITH ITS HUNDRED BILLION STARS, WAS THE ENTIRE KNOWN UNIVERSE. LATER, BASED ON THE WORK OF PEOPLE LIKE THE ASTRONOMER EDWIN HUBBLE, THE UNITED STATES BUILT THE HUBBLE SPACE TELESCOPE, NAMED IN HIS HONOR. JUST 400 YEARS AFTER GALILEO LOOKED UP AT THE SKY, WE KNOW THAT WE SHARE THE UNIVERSE WITH MORE THAN A HUNDRED BILLION OTHER GALAXIES EACH WITH ITS OWN COMPLEMENT OF STARS. [Put a galaxy on your computer.]

*THAT 3-POUND BRAIN OF OURS, WITH ITS CAPACITY TO MURDER HUGE NUMBERS  OF OUR OWN KIND, HAS ALSO ALLOWED OUR SPECIES TO UNIQUELY RECKON THAT THE KNOWN UNIVERSE IS ALMOST 100 BILLION LIGHT YEARS ACROSS. ( A LIGHT YEAR BEING THE DISTANCE LIGHT TRAVELS IN A YEAR, ABOUT 6 TRILLION MILES). IN COMPARISON, IT TAKES 8.5 MINUTES FOR LIGHT TO GET FROM SUN TO EARTH. BY THE WAY, DO YOU HAPPEN TO KNOW THE SPEED OF LIGHT IN FEET PER SECOND? METERS PER SECOND? MILES PER SECOND? MPH? IF LIKE ME YOU COME UP EMPTY ON MOST OF THOSE, ALL THE MORE REASON TO BE IN LAW SCHOOL. ANSWERS: 983,571,056 - 299,792,458 - 186,282 - 670,616,629

Only the dead have seen the end of war. - Plato

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This is the last Silver Bullet. Thank you for reading them and ...

In the words of an old African tribal blessing,
May your fire burn brightly.
May your cooking pot be full.
May your roof shed the rain, and
May the lion stay away from your door.
































































BULLETS VII - CRIMINAL HOMICIDE
copyright © ray moses 2003
all rights reserved
9/11 WTC TRAGEDY
(ACCOMPLISHED BY 19 MEN WITH AIRLINE TICKETS AND BOXCUTTERS)
RADOVAN KARADZIC APPEARS BEFORE ICC
KARADZIC  FACES
ICC TRIAL FOR  WAR CRIMES , GENOCIDE, ETHNIC CLEANSING
MILOSEVIC TRIED FOR WAR CRIMES
BUSH GIVES UP GOLF
BUGLIOSI  RE BUSH
AS WAR CRIMINAL (1)
WAR CRIMES PROSECUTIONS AGAINST  BUSH2, CHENEY, ETC?
NADER ON IMPEACHMENT
FRONTLINE ON IMPEACHMENT
MAHER ON IRAQ
ABU GHRAIB WHISTLEBLOWER
BRITISH MP ON GAZA
DERSHOWITZ-CHOMSKY DEBATE RE ISRAEL/PALESTINE
COLBERT IN SUMMARY ON BUSH2
CHOMSKY ON GAZA
GAZA WAR CRIMES?

THE MENDACIOUS WORDS OF  PREVARICATORS
IN HIGH PLACES
Men of great power are not always men of wisdom.
Are these gentlemen
simply  naive?
Some might say they are simply following the 20th century U.S. practice of using its military power and that of its clandestine services to overthrow governments that refuse to protect  American corporate interests. The slick way of doing this is to cloak the intervention in the rhetoric of national security and liberation.


We have ways of making you talk!
THE BUSH ADMINISTRATION
TORTURE MEMOS
Four of the torture memos -    (1), (2), (3), (4) , EACH SIGNED BY BUSH2 DOJ LAWYER STEVEN G. BRADBURY, WERE RELEASED IN 2009 BY PRESIDENT OBAMA , A PRESIDENT WHO SAYS THAT  WATERBOARDING IS TORTURE AND THAT HE WILL FOLLOW THE RULE OF LAW. NOTE, HOWEVER, THAT THE CIA OPERATIVES WHO CONDUCTED THE TORTURE (EUPHEMISTICALLY DUBBED "ENHANCED INTERROGATION" BY THOSE WHO OKAYED IT AND DID IT) AND THE BUSH2 OFFICIALS WHO GAVE IT THEIR STAMP OF APPROVAL BY GENERATING THE MEMOS WILL NOT BE PROSECUTED BY THE OBAMA ADMINISTRATION.

QUERY: SHOULD THOSE MEMBERS OF THE EXECUTIVE BRANCH, CIA OPERATIVES, WHO TORTURED   (1) (2)  PRISONERS BE GIVEN EXECUTIVE IMMUNITY FROM PROSECUTION SIMPLY BECAUSE THEY RELIED ON CLEARLY FAULTY AND, PERHAPS, FRAUDULENT ADVICE FROM OTHER MEMBERS OF THE EXECUTIVE BRANCH? CLEARLY AN ACCUSED BANK ROBBER MAY NOT CLAIM A MISTAKE OF LAW,  BECAUSE HIS  LAWYER TOLD HIM BEFOREHAND THAT IT WAS LAWFUL TO ROB A BANK?  NOTE: WE LIMIT THE FOLLOWING MILITARY ORDERS FROM A SUPERIOR DEFENSE TO SOLDIERS WHO DO NOT KNOW THE ORDER TO BE UNLAWFUL? SEE MPC SECTION 2.10.

IS TORTURE AGINST U.S. LAW? YES - 18 USC 2340 ET SEQ.  SEE BROWN V. MISSISSIPPI, 297 U.S. 278 (1936). IS TORTURE OUTLAWED BY INTERNATIONAL LAW OR TREATY?  - YES. UNITED NATIONS CONVENTION AGAINST TORTURE.
IS MISTAKE OF LAW AN EXCUSE FOR THE CIA OPERATIVES WHO TORTURED PRISONERS AND WHO WOULD POINT TO THE TORTURE MEMOS AS A MISTAKE OF LAW EXCUSE FOR THEIR CONDUCT? FOR SOME  GUIDANCE ABOUT THE CONCEPT OF MISTAKE OF LAW, LOOK AT MPC SECTION 2.04(3)(b). SAYING THAT A BELIEF THAT CONDUCT DOES NOT LEGALLY CONSTITUTE AN OFFENSE IS A DEFENSE TO A PROSECUTION FOR THAT OFFENSE BASED UPON SUCH CONDUCT WHEN ONE ACTS IN REASONABLE RELIANCE UPON AN OFFICIAL STATEMENT OF LAW, AFTERWARD DETERMINED TO BE INVALID OR ERRONEOUS, CONTAINED IN (i) A STATUTE OR OTHER ENACTMENT; (ii) A JUDICIAL DECISION, OPINION OR JUDGMENT; (iii) AN ADMINISTRATIVE ORDER OR GRANT OF PERMISSION; OR (IV) AN OFFICIAL INTERPRETATION OF THE PULIC OFFICER OR BODY CHARGED BY LAW WITH RESPONSIBILITY FOR THE INTERPRETATION, ADMINISTRATION, OR ENFORCEMENT OF THE LAW DEFINING THE OFFENSE. UNDER THE MPC APPROACH, IT IS CLEAR THAT RELIANCE ON ADVICE FROM ONE'S LAWYER DOES NOT QUALIFY A  VALID EXCUSE. WHY? BECAUSE IT'S NOT AN OFFICIAL STATEMENT. WOULD THE TORTURE MEMOS BE VIEWED SIMPLY AS LAWYER ADVICE OR AS AN OFFICIAL INTERPRETATION  BY A PUBLIC OFFICER CHARGED BY LAW WITH RESPONSIBILITY FOR THE INTERPRETATION OR ENFORCEMENT OF THE OF THE LAWS AGAINST TORTURE? 

IS IT APPROPRIATE THAT THE OBAMA ADMINISTRATION IS GIVING THOSE WHO OKAYED THE TORTURE A PASS FROM POSSIBLE CRIMINAL PROSECUTION.
ONE AUTHOR OF THE 2002 TORTURE MEMOS, SEE BYBEE MEMO, WAS, JAY S. BYBEE,  DOJ LAWYER AND A MAN WITH TIES TO THE ADMINISTRATIONS OF BUSH1 AND BUSH2. UPON LEAVING THE BUSH2 ADMINISTRATION, BYBEE WAS LATER (2003) APPOINTED TO A 9TH CIRCUIT FEDERAL APPELLATE JUDGESHIP WITH LIFETIME TENURE. HE WAS PRAISED BY SENATOR ORREN HATCH AND CONFIRMED BY THE SEANTE. THIS WAS BEFORE THE EXISTENCE OF THE TORTURE MEMOS BECAME PUBLICLY KNOWN.
IF YOU NEED MORE INFORMATION RE THE BUSH2 ADMINISTRATION'S ALLEGED POLICY OF TORTURING PRISONERS, READ THIS ARTICLE AND JENNIFER HARBURY'S  Truth, Torture and the American Way; The History and Consequences of U.S. Involvement in Torture, Beacon Press (2005). SEE ALS0, THE UNITED NATIONS CONVENTION AGAINST TORTURE, THE FEDERAL LAW AGAINST TORTURE 18 USC SECTION 2340 ET. SEQ. SEE ALSO JOHN YOO AND DAVID ADDINGTON.

THE MAJORITY OF THE AMERICAN PUBLIC, ABOUT 67%, WANTS TO TURN THIS SORDID PAGE OF OUR HISTORY WITHOUT READING IT, I..E., NO INVESTIGATIONS AND NO CONSEQUENCES FOR THE TORTURERS OR THOSE WHO AUTHORIZED IT.
IF WE DON'T CONFRONT AND CONDEMN THE CRIMES, IF ANY, OF OUR LEADERS, DOES THIS HAVE THE EFFECT OF CONDONING THEM? IF SO, CAN THE WORLD RIGHTLY ACCUSE US OF BEING  A NATION OF TORTURERS?

Check the upcoming Harvard International Law Journal for Jens David Ohlin's The Torture Lawyers.

WATCH
TORTURING
DEMOCRACY


Sidebar
SUDANESE PREZ. OMAR HASSAN AL-BASHIR, INDICTED FOR TORTURE, MURDER, AND RAPE BY ICC IN MARCH '09
(ALSO 1 , 2 )

BOUMEDIENE SPEAKS OUT AFTER HIS RELEASE.
7 1/2 YEARS W/O CHARGES -
WAS HE TREATED FAIRLY BY THE  GOVT. OF THE USA?
WHEN  A JUDGE FINALLY HEARD HIS CASE AS A RESULT  OF THE  USSC OPINION, HE WAS ORDERED RELEASED DUE TO LACK OF ANY CREDIBLE EVIDENCE.
UNFORUNTATELY, THE LEGACY OF THIS CASE HAS NOT  RESULTED IN DETAINEE'S GETTING A FAIR BREAK IN US COURTS. SEE ESMAIL V. OBAMA, 639 F3D 1075 (D.C.CIR. 2011)
IT SEEMS THAT THE OBAMA WAY MAY BE TO ASSASSINATE SUSPECTED ENEMIES WITH DRONES RATHER THAN ARREST THEM.
Neda, a young Iranian woman is shot and killed on June 20, 2009, in Teheran by government police as she protested fraud in the presidential elections. Caution: This is graphic.
(1)
Note: In the US war against Iraq, the Iraqi citizenry suffered a 9/11 tragedy, 3,000 innocent deaths, every week for 6 years - this in a country less than 10% the size of the US and not linked in any way to 9/11.
Dr. Stiglitz on the true costs of the Bush war in Iraq.
It's all about death. Another day at the office as Apache helicopter gunships open fire and kill 12 innocent civilians including 2 journalists in 2007.  (1) There were 2 children in the rescue van.
(Explanation)
(Descriptive Video)
Wikileaks Documentary



Typical metropolitan gang war homicide in LA.
Disgruntled (the opposite of "gruntled") client shoots at his lawyer on courthouse grounds. If the lawyer dies, what crime? If the lawyer survives (as he did), what crime?
C-SPAN
Panel Discussion re Bush2 Lawyers and the Torture Memosavis)
Trained military killers having problems with homicidal urges upon return to life
in America
Frontline's
"The Wounded Platoon"

It's been said "If you can get people to believe that they are acting in the name of God, you can get them to do almost anything."

Would this apply to Muslims, Jews, Christians, Mormons, Hindus, Buddhists, and every other group that has been convinced they are God's chosen ones.
Picture 7 men who negligently release 40 tons of toxic gas that kills roughly 15,000 people. What  criminal charges should be brought against the men?
In India, it was "death by negligence." Twenty-six years after the deaths, each of the men received sentences of 2 years and a $2100 fine.
See Bhopal.

Should words alone constitute adequate provocation to reduce an intentional killing to voluntary manslaughter
WHITE  PHOSPHORUS -
IN JULY OF 2010 THE ISRAELIS SAID THEY WOULDN'T USE IT AGAIN.
Our greatest living
cosmologist -
Stephen Hawking (1),
opines that, since life appeared on Earth within a half a billion years after it had cooled, the probability of life appearing elsewhere in the known universe is high; however, due to the absence of radio waves coming from space, it is unlikely that there are any alien civilizations at our stage of development within a radius of a few hundred light years from planet Earth. (A hundred light years would be about 600 trillion miles.) Hawking reckons that our species has a good chance of surviving long enough to colonize the solar system; however, no other planet will substiute for Earth; if it becomes inhabitable, we would have to reach the stars to ensure long-term survival. Interview in Time, November 15, 2010.

Even if we should find another Eden, we would not be fit to enjoy it perfectly nor stay in it forever.
- Henry Van Dyke


A GREAT FILM CENTERING ON A MILITARY TRIAL
"BREAKER MORANT"
ABOUT
MORANT AND THE "OURS IS NOT TO WONDER WHY. OURS IS JUST TO DO AND DIE" PSYCHOLOGY OF SOLDIERS.

IF YOU ARE A YOUNG AMERICAN LAW STUDENT WHO CAN HANDLE THE TRUTH, YOU OWE IT TO YOURSELF TO WATCH THIS !

Lest we forget what Presiden Bush and his crew did to the country when they drew us into an unnecessary war -
please take time to watch this glimpse of wartime Iraq in the Charles Ferguson documentary:
"No End In Sight"






Assassination - Like mercy killing it's almost always premeditated. (1)(2)(3)
Would shooting a rifle into a passenger bus qualify as a depraved heart /extreme indifference to the value of human life mental state?
The younger of these shooters in Babel probably has an infancy/immaturity defense. And the woman would have to die for depraved indifference to be an issue.
No one could premeditate like Patrick Bateman in American Psycho.
Caution: Bateman's murders are well planned, but quite violent. This sample is no exception.
W
"Politcal language is designed to make lies sound truthful and murder respectable, and to give the appearance of solidity to true wind."
George Orwell
PROVOKED
How would you argue sudden passion based on adequate provocation here?
PREMEDITATED MURDER
OF SONNY CORDELEONE
COMMITTED IN A MOST FOUL AND DASTARDLY MANNER
CHOMSKY ON US~ISRAELI CRIMES VS. PALESTINE
The Iceman Confesssions
(2)
MISSION ACCOMPLISHED
(An excellent documentary detailing Bush2's failed war)
A few Soprano whackings;
Gerry;  Adriana; Richie;
Jimmy: Vito; Pussy ;
Philly; a waiter; Angelo;
Doc: Rusty
McCLELLAN TALKS