The war crimes trial that never was : an inquiry into the war on terrorism, the laws of war, and presidential accountability
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University of San Francisco law review, Vol. 45, no. 4, Spring 2011, p. 959-1004
While President George W. Bush was in office, a cottage industry developed calling for his impeachment. Some even made a case for prosecuting him in a court of law. Many of the criminal offenses the President allegedly committed involved his conduct in the war on terrorism. Actions taken in the war on terrorism during President Bush's years in office have raised a number of disturbing questions. One of the most significant is whether members of the U.S. armed forces, Central Intelligence Agency ("CIA") agents, security contractors, and others working for the United States committed war crimes. If so, was this attributable to a "few bad apples, or does culpability extend to the highest officials in the Bush Administration, including the President? Although no trial is forthcoming, it is still possible to explore the issue of presidential accountability and assess the President's actions under the laws of war. Part I of this Article examines what constitutes a war crime under U.S. law by comparing the legal definition with the popular understanding of that term. Part II explains how, in a political system structured to curb the abuse of power, it could have been possible for the executive to violate the laws of war. Part III then analyzes the case against the President as if it were going to trial. It does not address every technical legal issue that could arise. Instead, the aim is to show generally how a war crimes trial could clarify what happened and resolve outstanding questions of criminal liability. To that end, this last section suggests lines of questioning for the cross-examination of President Bush.