06/15/2009 05:12 am ET | Updated May 25, 2011

Bush Ringleaders Could Face Citizen Arrests for Torture

I have mixed emotions about the verbal lambasting heaped on Donald Rumsfeld outside the May 9 White House Correspondents' Dinner in Washington DC. On one hand, I like the public to hold our leaders accountable. On the other hand, the first of two Code Pink protesters who loudly repudiated Rumsfeld looks a bit crazed. I'm not sure it helps the cause to reinforce the false notion that only a fringe minority believes war crimes were committed by high-level members of the Bush administration.

So let's get serious. I have an idea.

Those who say Bush, Cheney, et al. should be prosecuted for authorizing torture, might want to start by identifying the laws that have been violated. I suggest focusing on conspiracy to commit torture, which is a felony under 18 U.S.C. 2340A of the U.S. Code.

In California, a citizen may make an arrest for a felony - even if he or she didn't witness it. In other words, "actual restraint of the person" is perfectly legal if the apprehender reasonably believes a crime has been committed. Surprisingly, it's even legal for a private person to "break open the door or window of the house in which the person to be arrested is..." The arrestee must then be turned over to the police or a judge, and there's no guarantee the incident will lead to a prosecution. But if the encounter with Rumsfeld had occurred in California, the protesters (or anyone) would have been entitled to arrest him for real, not just political theater.

What's potentially most unnerving to the accused is that there's no limit to how many times a person may be arrested for the same alleged offense. That means if, say, John Yoo were arrested by a citizen at 10:00 in the morning, and released by the police at 10:20, Yoo could again be lawfully arrested by a citizen right on the spot, or later in the day, or on subsequent days.

I don't know if alleged war criminals are similarly vulnerable in other states, but in at least California (where Code Pink is headquartered, and Yoo teaches law), citizens have the power to transform rhetoric into action. How about it, my fellow Americans?

Jeff Norman blogs at