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    Is Bush A War Criminal?

    That question has troubled me for quite a while. The Hamdan decision certainly suggests that, by ignoring the Geneva Conventions even in Guantanamo (let alone in Iraq), a war crime has been committed. And in the military, the command structure insists that superiors are held accountable. I've been saying this for a long time now, and have watched aghast as the Bush administration has essentially dumped responsibility for war-crimes on the grunts at Abu Ghraib. The evidence already available proves that the president himself ordered torture and abuse and the violation of the Geneva Conventions. Now he has been shown to be required to act within the law, and according to the Constitution, his liability for war crimes therefore comes into focus. Money quote from a useful Cato Institute Hamdan summary:

    Both the majority and concurrence cite 18 U.S.C. § 2241, which Justice Kennedy stresses makes violation of Common Article 3 of the Geneva Convention a war crime punishable as a federal offense, enforceable in federal civil court. The majority holds, of course, that trying persons under the president's military commission order violates Common Article 3 of the Geneva Convention, suggesting that trial is a war crime within the meaning of 18 U.S.C. § 2241.

    Furthermore, the majority stresses that the Geneva Conventions 'do extend liability for substantive war crimes to those who "orde[r]' their commission" and "this Court has read the Fourth Hague Convention of 1907 to impose ‘command responsibility' on military commanders for acts of their subordinates." The Court’s emphasis on the liability that attaches to "orders" is significant, because trials in the military commissions are, of course, pursuant to a direct presidential order. Even so, it's difficult to imagine a circumstances in which charges under Section 2241 might actually be prosecuted.

    Difficult but not impossible.