Prosecuting Janet Reno for Human Rights Violations in Waco and Ruby Ridge

[Eugene Volokh]

        I appreciate Prof. Martin's question; for the sake of providing a balanced
perspective, let me suggest that we decide it together with another
hypothetical:  Say that under some as yet unproven and not precisely defined
theory, Janet Reno is accused of human rights violations given the federal
government's actions in Waco and Ruby Ridge.  Could a private person have
brought a suit forcing federal prosecutors (either in the Clinton
Administration or in the Bush Administration) to prosecute Atty. Gen. Reno
for human rights violations (or perhaps even genocide, on the theory that
the people were killed in part based on their religious beliefs)?

        I should stress, by the way, that I am *not* claiming that Reno was at all
criminally responsible for the behavior at Waco or Ruby Ridge.  In fact, I
am giving this example because it seems to involve allegations that are just
as hypothetical and entirely legally unsubstantiated as the hypothetical,
legally unsubstantiated allegations being made about President Bush.

        Eugene

> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Francisco Forrest
> Martin
> Sent: Monday, November 26, 2001 3:13 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Prosecuting Bush for War Crimes
>
>
> Here is another spin on the military commission issue -- which
> will be admittedly controversial. (Prof. Volokh is going to love
> this one!)  Last April, I published a book in which I argued at
> great length that there is no prosecutorial discretion for war
> crimes, and that private individuals can bring a suit forcing
> federal prosecutors to prosecute persons for war crimes.  See
> Martin, CHALLENGING HUMAN RIGHTS VIOLATIONS:  USING INTERNATIONAL
> LAW IN U.S. COURTS (2001).
>
> I did not deal with prosecuting a president in this book.
> Assuming that my arguments on the substantive and procedural law
> are generally valid, what are the peculiar constitutional twists
> when a private individual goes after the president?  For example,
> what supervening authority would the special prosecutor statute have?
>
> Francisco Forrest Martin
> Ariel F. Sallows Professor of Human Rights
> University of Saskatchewan College of Law
>