There's A War Crimes Tribunal in Your Future.
I've been saying this for a long time, and think it is as true, or more true, than ever. The critical issue, though, is not so much the presence of absence of immunity for various actors so much as a national unwillingness to bring the guilty to justice. Only when a nation will not police its own does the international community have a right (and duty) to step in.
PS. Read the article by Philippe Sands, The Green Light, that Balkin links to.
As always the discussion assumes that these are exlusively legal issues when in fact they are political.
If a future US administration does not want members of the Bush administration put on trial for war crimes it is rather unlikely to occur. But the Bush administration makes a serious error in assuming that no future administration is ever going to allow them to be put on trial. They have made many enemies and they have made them carelessly.
The GOP is not going to the barricades to defend Tom DeLay, why should they leap to the defense of Yoo in ten years time? They are only going to raise a fuss if doing so is to their political advantage. It is rather more likely that it won’t be.
By the time any of this is played out it is more than likely that the US will be a member of the ICC. The GOP if it is interested in the middle east at all is likely to have a very different outlook, if they can’t blame themselves for the mess who do you think they are going to find to blame?