Overthinking the Prosecution Problem

Some legal scholars think it will be difficult to indict Dick Cheney, George Tenet, Porter Goss, Donald Rumsfeld (and George Bush. I submit that they are overthinking the problem.

The obvious charge is a charge of command responsibility, otherwise known as the Yamashita (or Medina) Doctrine.

These are the elements of the charge:

1) A war crime has been committed;

2) Those committing the atrocities/war crimes were under the command of the defendant;

3) The commander knew or should have known, based on the surrounding circumstances at the time, that the subordinates were engaging impermissible conduct; and

4) The commander failed to prevent or punish those responsible for the commission of such crimes.

The last three elements are "gimmies." The torturers both in the CIA and in the military were under the command of Bush and Cheney. The military torturers were under the command of Rumsfeld, the CIA torturers were under the command of Tenet and Goss. The four potential defendants not only knew of the commission of war crimes (element 3), they authorized and approved of them (element 4). That is clear from the record and from the statements of many of the defendants, which would be admissible.

So the sole area to argue about at trial will be whether war crimes took place.

I don't see the prosecution's case-in-chief taking longer than a day to put on after the opening statements are made. The defense is going to have to argue on the first element. They will have to argue that the torture wasn't really torture, for the other elements of the charge are indeed "gimmies" to the prosecution.

Trying the bosses will not be hard. That is why you probably will not see any of the senior officials of the Bush Administration taking any trips to Europe anytime soon.

If you do not think that a charge of command responsibility is not a serious one, consider this:

We hung General Yamashita.