Is George Bush a War Criminal?

Is George Bush a war criminal?

That accusation has been made by some human rights groups and what passes for an antiwar movement in the U.S. because his administration:

* Not only condones but encourages torture by U.S. agents and troops in the War on Terror, including "waterboarding," placing prisoners in painful physical positions, sexual humiliation and extreme sleep deprivation.

* As was seen in the Abu Graib prison scandal, refuses to hold accountable the officers who ordered those awful procedures.

* Refuses to obey a law passed in the Senate outlawing torture.

* Does not abide by the Geneva Conventions.

* Established a secret CIA "rendition" program involving a network of secret prisons, some of them in countries in which torture such as electric shocks to genitals and dismemberment is standard fare.

* Bypassed legal procedures to prosecute alleged terrorists, including suspending habeas corpus and refusing them legal counsel or even bringing them to trial.

The majority in the sweeping 5-3 Supreme Court ruling last week in Hamdan v. Rumsfeld skirted the the war crimes issue.

The court was ruling on the case of Ahmed Salim Hamdan, Osama bin Laden's driver, who was captured in Afghanistan shortly after 9/11. Hamdan's lawyers did not argue that Bush was a war criminal, but that he exceeded his authority by setting up military commissions to try terrorist suspects, whom the administration has termed enemy combatants rather than prisoners of war and therefore do not have the rights traditonally afforded POWs as outlined in the Geneva Conventions.

The Cato Institute, which filed an amicus brief in Hamdan, noted in its summary of the ruling that:

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.

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.

WHAT IS A WAR CRIME?

It's very simple. Under U.S. law, a war crime is defined as

Any conduct . . . which constitutes a violation of Common Article 3 of the international conventions signed at Geneva.

Under U.S. law, anyone who

Commits a war crime . . . shall be fined . . . or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

In other words, U.S. officials found to be responsible for subjecting War on Terror detainees to torture, cruel treatment and other outrages could face prison or even the death penalty.

TECHNICALLY YES, POLITICALLY NO

Talking all of the aforementioned together, can a case be made that Bush -- as well as Vice President Cheney and Defense Secretary Rumsfeld -- are war criminals?

Absolutely.

Can a case be made that they should be tried as war criminals?

Absolutely.

There is ample prima facie evidence to do so.

And while their deeds pale in comparison to Saddam Hussein or Slobodan Milosevic, they too are responsibile for war crimes because they were in charge. Note also that Hussein and Milosevic were brutal dictators; George Bush is the lawfully elected president of a country with a long history of abiding by the Geneva Conventions and the Rule of Law in general.

All that said, prosecution of Bush and his cronies for war crimes would be politically impossible.

The best antecedent that I can come up with for why this is so is Henry Kissinger and his involvement in the secret bombing campaign in Cambodia in the early 1970s and the 1973 overthrow of the Socialist government in Chile.

Kissinger, who was President Nixon's national security advisor, secretly expanded the American bombing campaign from Vietnam into Cambodia, a sovereign country with which the U.S. was not at war. This directly led to the Cambodian civil war and emergence of the Khmer Rouge insurgency and subsequent genocide.

Kissinger, as chairman of a secret panel that oversaw covert U.S. operations, was deeply involved in the plot to assassinate General Rene Schneider, who was the Commander in Chief of the Chilean Army and opposed a coup led by right wing groups against democratically elected Socialist President Salvador Allende. After Schneider was murdered, Allende was overthrown by a junta that installed Augusto Pinochet, who subsequently detained and killed thousands of his countrymen.

Kissinger will never be able to wash the blood of all those Cambodian and Chilean innocents from his dirty hands.

As with Bush and his henchmen, a case can be made that Kissinger is a war criminal, but ne never was brought to trial and efforts to extradict him were rejected by the World Court.

LET'S GET REAL

For prosecution of the president to occur, Attorney General Alberto Gonzales would have to issue indictments and order an investigation.

Does anyone really expect that the man who famously called the Geneva Conventions "quaint" is going to do so?

Besides which, when all is said and done, prosecution of the president, vice president and his defense secretary would be profoundly disruptive in an era in American history that has been characterized by deep divisions in politics, religion and society at large.

The most appropriate punishment will be the judgment of history.

George Walker Bush will live out his days on his Texas ranch with the knowledge that most historians will view him as one of the worst -- if not the worst -- presidents in American history, placing him in a pantheon now occupied by Martin Van Buren, Andrew Johnson and Calvin Coolidge, three men who in their own ways were as inept as Bush but at least were not war criminals.