What has been largely missed is the clear point that the Supreme Court has thus now declared that for the past five years, Bush and his gang of war-mongers, including Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, Secretary of State and former National Security Adviser Condoleezza Rice, former Attorney General Donald Rumsfeld and current Attorney General and former White House Chief Counsel Alberto Gonzales, and many others in the administration, have been guilty of violating the Third Convention on treatment of prisoners of war. They are also, therefore, in violation of federal law, which back in 1996 adopted that convention as part of the U.S. criminal code.
In other words, the whole top administration, from Commander in Chief George W. Bush on down, is guilty of war crimes. The punishment for committing war crimes ranges from a lengthy jail sentence to, in the event the crimes in question caused the death of any prisoners being held, to death. And there have been many deaths among those who have been held and tortured on orders of the administration--most recently the three suicides at Guantanamo, which included on man who had only three days earlier been targeted for release (but who never learned this because government's secrecy and tight security prevented his attorneys at the Center for Constitutional Rights from getting the news to him).
Interestingly, Gonzales actually cautioned Bush about this possibility. In a memo to the president, written on January 25, 2002 when he was still White House counsel, Gonzales warned prophetically that the U.S. adoption of the Third Geneva Convention as a part of the U.S. criminal code in 1996 made violation of the convention a "war crime" under U.S. law, which he said was defined as "any grave breach" of the Third Convention such as "outrages against personal dignity." He noted that this law applied whether or not a detained person qualified for POW status, and added that punishment for violation of the law "include the death penalty." But then he went on to say Bush could "substantially reduce" his risk of domestic criminal prosecution under the War Crimes Act by making a presidential determination that the Third Geneva Convention "does not apply to al Qaeda and the Taliban."
In Bush's case, this crime calls for his impeachment, and for his subsequent prosecution as a war criminal. In the case of his subordinates and abettors, it calls for criminal indictments.
Naturally, we cannot expect to see indictments issue from the Attorney General's Office, particularly given Gonzales' own complicity and personal culpability on the war crimes charge. Conceivably, I suppose, some career prosecutor like Patrick Fitzgerald, who has been given wide authority in his special counsel role, could bring charges, though this seems highly unlikely. Charges could also be brought by another country whose laws permit such extraterritoriality: Germany or Spain for example.
There are, as Barbara Olshansky and I explain in our new book The Case for Impeachment (which includes a copy of the above Gonzales memo in an appendix), many important reasons to impeach the president. Surely, however, the deliberate policy of involving the military in the commission of war crimes--torture, kidnapping, denial of access to some process of challenge the justice of their detention--is among the worst of all of those crimes against the Constitution.
The blood of war crime victims is on Bush's hands, and the hands of his henchmen, but unless we the people act, and unless the Congress acts, to call them to account, it will ultimately be on all of our hands.