Holding the Rogues in Washington Accountable: It Can and Must be Done

A deeply held belief in the U.S. is that no one, not even the president, is above the law. But what happens when sovereign immunity – a legal doctrine that shields government officials from lawsuits under certain circumstances – becomes sovereign impunity, a phenomenon in which government officials at all levels boldly evade the rule of law without consequence, regardless of extenuating circumstances? This was the theme that ran through a panel at New York’s Left Forum on June 3rd titled “Fighting Back: Breakthroughs and Challenges in Holding the Powerful Accountable.” Organized and introduced by Toward Freedom publisher Robin Lloyd, three women panelists from different parts of the country described their experiences fighting against impunity at the highest levels of government.

On hearing about a panel on high-level accountability, one male conference-goer responded with deep skepticism: “That’s a tall order!” Perhaps not coincidentally, all three panelists who took their place at the podium were unusually tall women who spoke with determined self-confidence, only later admitting to moments of self-doubt and, yes, fear.

“Actions for accountability won’t happen overnight,” said Stacy Bannerman, author of Homefront 911: How Families of Veterans are Wounded by Our Wars. She spoke passionately about losing “my beloved,” – her former husband – to extreme PTSD after serving two tours with the National Guard in the Iraq war. He became a crystal meth addict, and on one particularly horrifying episode nearly choked her to death. Once she discovered that she was not alone in her suffering, she began to network with other veterans’ families, becoming intimately aware of the frightening rash of suicides, murders and domestic violence in their homes. The suicides of family members alone, the Pentagon said, were simply “too many to track.” These and other shocking stories, accompanied by poor media coverage, ignorance and the resulting indifference to the vets’ inadequate care, and the total absence of care for the families who are wounded as well compelled her to find a way to improve their treatment while holding the Bush administration accountable for starting a war “based on lies” in Iraq.

Bannerman had protested the war since before it even began, and was a charter Board member of Military Families Speak Out (MFSO). In September of 2016, she saw a legal opening after learning that survivors and families of the 911 attacks had been cleared to sue the government of Saudi Arabia for failing to prevent terrorism under the Justice Against Sponsors of Terrorism Act (JASTA). She wondered: what would happen if a similar class action suit were to be launched by hundreds of thousands of families of veterans killed or injured in Iraq against the Bush administration for failing to prevent the 911 attacks, which were the excuse for invading Afghanistan and Iraq? Predictably, she bumped up against immunity laws like the Feres Doctrine which prohibits servicemembers and their families from suing the government for injuries they sustained while on duty. And JASTA only permits suits against foreign governments. But the law, like freedom, does evolve over time when new circumstances require justice and new angles are litigated. For example, a crack in the Feres Doctrine developed in 2015 when the Supreme Court ruled that soldiers could sue private contractors for injuries they sustained (e.g. electrocution in a shower due to faulty electrical service) during their service in the Iraq war.

Bannerman first considered exploring the possibility of a class action suit while testifying last December at an Iraq War Tribunal in Washington DC organized by the anti-war group CodePink. At the time, everyone was fretting over how Donald Trump could have gotten himself elected, rendering George W. Bush to the background – even looking good by comparison. Trump’s election should not have come as a surprise, Bannerman warned, “in an increasingly careless, narcissistic, no-accountability nation…We lowered the political bar to the point where even Trump could clear it when we allowed Bush, Cheney & Co. to instigate an illegal war in Iraq.”

She continues to remain focused on Bush. “We won’t get a quick fix,” she told her New York audience, “We’re in it for the long game.” She is currently in discussions with a major class action law firm pursuing a novel 911 approach to holding Bush accountable. “Accountability actions require courage and commitment,” she said, her voice cracking as she recognized the enormity of the task before her, and the audience responded with cheers.

Journalist and documentary filmmaker Kristina Borjesson knows the long game only too well. She spent 17 years gathering evidence and chronicling the truth about what really happened to TWA flight 800 when it exploded in mid-air shortly after takeoff in 1996 from New York’s JFK International Airport, killing all 232 passengers on board. Borjesson was an Emmy-winning producer for CBS when the network assigned her to look into the crash. Soon she found herself being visited at work by the FBI after she received a piece of evidence from inside the official investigation. When she began questioning the official story, she was fired. After that, she was hired to work on a segment about the crash investigation for a pilot program being produced for ABC Network. There too, her work was shut down.

Ever since, she explained, “I’ve been blowing the whistle on corruption in American journalism and the government as well as advocating for whistleblowers.” Borjesson wrote two books: Into the Buzzsaw: Leading Journalists Expose the Myth of a Free Press (Prometheus, 2003) and Feet to the Fire: The Media after 9/11, Top Journalists Speak Out (Prometheus, 2005). Throughout this period she continued to probe the TWA crash, and eventually produced and directed her tour de force, a documentary featuring investigators-turned-whistleblowers who participated in the government’s official investigation into the crash. In TWA Flight 800 (Epix, July 2013) she interviewed these “regular Americans, virtually all of them conservative Republicans,” driven by conscience to take on the powerful National Transportation Safety Board (NTSB), the CIA and the FBI for covering up crucial evidence. The film features Henry Hughes, a retired senior National Transportation Safety Board accident investigator, James Speer, who investigated the crash for the Air Line Pilots Association, and Bob Young, TWA’s senior accident investigator. As a team, they officially petitioned the NTSB leadership to address serious malfeasance that took place during the investigation. The NTSB rejected their petition. But they persisted, along with Borjesson and her co-producer, physicist Tom Stalcup, in piecing together irrefutable evidence showing that the crash did not result from an exploding fuel tank, as officially explained.

When reporters tried to go after their credibility, “we rebutted them on every point,” Borjesson explained. All evidence indicated that a missile brought down the ill-fated plane. The government has yet to come clean on why, or who was responsible, but Borjesson takes comfort in having successfully debunked the official explanations and having “taken this huge crash out of the conspiracy theory bin.” The film has received widespread attention, she believes, “because you can’t blow off whistleblowers.” The full panoply of their evidence can be viewed on the website, flight800doc.com. More recently, Borjesson has been working with bank whistleblowers on their efforts to publicly examine and reform bank regulations while keeping an eye on deregulation efforts in Washington that could set the stage for another even more devastating crash. Bankers, she points out, are particularly prone to impunity.

Pulitzer Prizewinner Glenn Greenwald once wrote, “When the elites think they are no longer subject to the rule of law, it’s a huge shift. Once we remove the punishment aspect for their violations, we remove their incentive to abide by the law.” When it was my turn to speak as a member of the panel, I expanded the discussion on moving forward with the prosecution of George W. Bush. I mentioned my book, The People v Bush: One Lawyer’s Campaign to Bring the President to Justice (Chelsea Green, 2010), in which I had warned that “if we don’t do everything in our power to reverse this trend we will forever abandon democracy in this country.” I recounted how in September 2008, I combined my roles as investigative journalist and attorney to run for attorney general of Vermont on a platform that included prosecuting President Bush. I was taking up a challenge legendary prosecutor Vincent Bugliosi had made to attorneys general all over the country. His recently published book, The Prosecution of George W. Bush for Murder, provided them with a roadmap for indictment, but no one was biting—except me.

I was cautiously optimistic about being elected attorney general in a state so openly hostile to Bush that he never dared to set foot in it. It turned out to be an exciting (albeit quixotic) two-month campaign, run out of Robin Lloyd’s home with Borjesson acting as communications director. Vincent Bugliosi, my erstwhile special prosecutor (were I to be elected) frequently accompanied me on the campaign trail. Despite garnering support from all over the country and a highly publicized first press conference in Burlington, a subsequent media shut-out doomed the effort. Nonetheless, I was heartened by the national clamor to prosecute Bush as “the most incompetent, dishonest and dangerous president in U.S. history.” It became the number one wish on President Elect Obama’s website, but then quickly disappeared after Obama made his famous “We must look forward instead of backward” speech following his inauguration. The nationwide accountability movement described in The People v Bush seemed to stall, which I felt paved the way for an even more perilous future. I expressed my concern in the opening paragraph of my book. My words, unfortunately, were all too prescient:

Many Americans consider it common knowledge that we have just lived through eight years of a rogue presidency. The question is: Have we set the stage for another rogue presidency in the future? Many believe the answer is yes. One way to prevent that is by prosecuting high level officials for crimes committed in office… The Republican right wing is inflaming discontent. Dark times could happen again, and they could be worse.

Vincent Bugliosi was spared seeing Donald Trump become president. He passed away in 2015, but his mission lives on. In recent months citizens from different parts of the country have contacted me, still determined to hold Bush accountable for the war in Iraq. With today’s national obsession over Donald Trump’s lies, possible collusion with Russia to defeat Hillary Clinton, erratic behavior, and war mongering, Bush’s grave responsibility for the deaths of 4,000 American soldiers and more than 100,000 Iraqis has been eclipsed, but not forgotten. As the wars in Iraq and Afghanistan drag on, renewed inquiries to prosecutors in states around the country are being made regarding the feasibility of Bugliosi’s legal approach to prosecute Bush for murder in a state court. Fortunately, there is no statute of limitation for murder. If President Trump makes good on his decision to send at least 3,000 more American troops back to Afghanistan, Bush’s pretext for the 2001 invasion of Afghanistan will surely come under renewed scrutiny. Perhaps then, the time will be right for prosecution.

All participants on this panel agreed that the accountability movement is likely to survive because it is based on principles upon which most Americans agree: the need to preserve democracy, protect the sanctity of the Constitution, and make sure that no one is above the law. These are the principles that unite, rather than divide, the American people. If acted upon on in the coming months and years, the age of impunity will likely give way to a more perfect union.

Charlotte Dennett is an attorney, investigative journalist and the co-author with Gerard Colby of Thy Will be Done. The Conquest of the Amazon: Nelson Rockefeller and Evangelism in the Age of Oil (HarperCollins, 1995). She is also the author of The People v Bush (Chelsea Green, 2010), an account of her 2008 race for Attorney General in Vermont on a pledge to prosecute George W. Bush if elected.