Prosecuting Bush for War Crimes

[Tobias Barrington Wolff]

At the risk of stating the obvious, I presume that we're discussing the
prosecution of a former President here.  The Constitution clearly forbids
prosecution of a sitting President under domestic law through any means
other than impeachment.  While the situation has never arisen, I take it
that the Constitution would impose an affirmative duty on the U.S.
government similarly to resist any proposed prosecution of a sitting
President before an international tribunal (unless the President was first
impeached), even if international law purported to authorize the
prosecution of a sitting head of state.

Even we progressives have a due regard for the prerogatives of the unitary
executive, you know.

-- T

At 03:12 PM 11/26/2001 -0500, you wrote:
>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


* * *
Tobias Barrington Wolff
Assistant Professor of Law
U.C. Davis Law School
530-754-6981
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