George W Bush – War Criminal?


The ‘War on Terror,’ as made up and waged by the Bush Administration over the past four years, has in large part been used as a cover for two other agendas of destruction.

The first has been an attack on the political institutions of the United States, in particular constraints on the Executive branch of power and on individual rights to privacy. The second has been about restricting the scope afforded to human rights and principles of ‘just war.’

Thanks to Sean Leahy

The Administration has put forward numerous changes in the process of government in order to exempt itself from scrutiny. This pattern has culminated in the assertion of a doctrine called the ‘unitary Executive.’

In short, what this claims is that within the separate branches of government, it is the Presidency that should be seen as superior. This has led to ‘signing statements’ being attached to Congressional laws that state the President will interpret what they mean as he sees fit. American presidents have attached such memos in the past but never with such extreme claims.

Under Bush, Congressional law has effectively been reduced to something that is less legislation and more a humble request to the sovereign.



In keeping with this doctrine, the Bush Administration has produced unilateral declarations of what human rights should apply to its prisoners, and dismissed as ‘quaint and outdated’ the Geneva Conventions with regard to imprisonment and torture. In foreign policy, this doctrine gave us ‘pre-emptive war’ and the mess that it is Iraq. Moreover, by effectively claiming its own right to terrorise, America’s policy has worked to spread the seeds of terror far and wide.

The three key pillars in America’s traducing of human rights have been: the practice of rendition of prisoners to third countries for torture; a series of decrees designed to exempt American officials from prosecution for crimes against humanity, war crimes etc; and regulations allowing prisoners to be tried by kangaroo courts the so-called military tribunals.

In June a small bombshell was dropped on this world of executive fiat. The US Supreme Court, in the case of Guantánamo Bay detainee Salim Ahmed Hamdan versus US Secretary of State Donald Rumsfeld, decided that not only were the military tribunals illegal but that the Geneva Conventions did apply to America’s actions in its ‘War on Terror.’

This was a bombshell because of something called the War Crimes Act of 1996, passed back then by a Republican-controlled Congress. This law explicitly criminalises Americans who break the Geneva Conventions. It even sanctions the penalty of execution for those responsible for the deaths of prisoners in custody. Moreover, it allows for prosecutions right up the line of command. The Bill was passed at the time of the Bosnian war and can be seen as an act of commendable high-minded American liberalism.

However, its existence is now a problem for an Administration whose Justice Department has re-defined torture as something that is only occurring if the physical pain is ‘equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.’ Psychological torture has been almost defined out of meaningful existence.

Earlier this year, the independent, US-based organisation Human Rights First reported that between eight and 12 prisoners had been tortured to death by Americans in Iraq or Afghanistan. A further 11 deaths were flagged as ‘suspicious.’ In addition there were another 34 confirmed homicides by American forces. All this would seem to give a future court, or tribunal, plenty to work with.

The Bush Administration was well aware that the 1996 War Crimes Act would pose a problem. Back in January 2002 Alberto Gonzales, Bush’s dark cardinal in matters of legal justification and now his Attorney General, worked with one of Vice President Dick Cheney’s people to draft a memo about exempting American personnel in Afghanistan from charges under this Act. Bush quickly made a presidential order to this effect. The rest is a history we know too well.

The Bush Administration is now trying to protect itself from the effects of the Supreme Court ruling in Hamdan v Rumsfeld, which might make it liable for its torture and arbitrary imprisonments in the future, under a different administration. They have moved to draft new legislation immunising them from charges under the 1996 War Crimes Act.

In the doublespeak so beloved of this Administration, the Washington Post quoted Rumsfeld after the Court decision as saying that he supported clearing up ambiguities, because it would mean that military personnel would not be ‘charged with wrongdoing when in fact they were not engaged in wrongdoing.’

In the same article, Gonzales is also reported to have briefed Republican members of Congress about the need for a legislative shield to protect members of the Administration from future prosecution.

Also on the request list to Congress is the exemption of the Administration from prohibitions contained in Article 3 of the Conventions. These include the use of ‘humiliating and degrading treatment.’ This might make acceptable, for example, stacking naked men in a pyramid and taking photos of them, or stripping men and women and putting a dog leash on them.

Notwithstanding the possibility of war crimes charges, Bush’s people are continuing unabated. It seems that the proposed new Bill for Guantánamo detainees, which replaces the procedures that the Supreme Court threw out, makes even bigger claims for government and police agencies.

Not content with just targeting the human rights of foreigners, the draft new Bill reportedly provides for the indefinite detention, and removal from the civil court system, of suspected terrorists either American or foreign. The ‘confession’ friend to tyrannical legal systems everywhere would continue to be accepted as evidence. Moreover, there would be no requirement that the prisoner actually be in the court that tries him or her.

So a situation has developed, clothed in rhetoric about the ‘War on Terror,’ where the President decides what a Bill means, and the Administration decides whether you might be a terrorist. Under such a regime, the rights of both the Legislature and the citizen are actually little more than gifts of the presidency.

I don’t think an Administration that is closer to its end than its beginning will quite get away with all that is in these draft Bills, but nor do I think I will live to see Bush, or his senior people, in the dock for war crimes. Politically the stakes are too high for too many major political players for this to happen.

However, failure to do this will only entrench the practices Bush has introduced. Thus Bush’s relentless chopping at the trunk of liberal democracy may eventually be shown to have ringbarked it. A system that relies p
rimarily on a John Wayne principle of, ‘trust us, we’re the good guys’ poisons the very bases on which Western freedoms have grown.

And it does so far more effectively than a fundamentalist with a bomb could ever hope to.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.