There is pressure building on the incoming Obama Justice Department to somehow adjudicate the war crimes committed by the George W. Bush administration, starting at the top. The political problem is that these crimes also implicate leading Democrats, thereby rendering true justice nearly impossible.

This is another compelling piece of evidence for the fact that we are living under a post-constitutional government, no longer responsible to the rule of law. If we don’t hold our leaders to the same standard of justice as the rest of America’s citizens, or any other of the world’s criminals, I don’t see how anyone could argue that this is a functioning democracy. Equality under the law is democracy’s cornerstone.

But in our post-constitutional, post-Bush v. Gore age, we already know that the judiciary is just as politicized as the other two branches of government. And under a political system dominated by the military-industrial complex, there doesn’t seem to be any such thing as a war crime. Americans were torturing people in Vietnam and Korea. The officer in charge at the My Lai massacre, where hundreds of women and children died, served three years of house arrest.

The defense industry protects its own, and always has.

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It’s hard to see how a president could get a fair verdict in this country, in any case. As David Sirota notes, “presidentialism,” which confers on that office an elevated, almost sacred character, is a basic element in America’s civil religion. We’re all brainwashed with the idea that the president is somebody who needs rows of heavily-armed storm troopers lining Pennsylvania Avenue to protect him — rather than somebody like Thomas Jefferson, who walked alone back to his rooming house to have lunch with the other boarders, after his inauguration. We’ve given the president the “emperor” status suitable to an empire. Where would you find a jury of his “peers,” outside of the establishment accessories to the crimes, like the Democrats?

A d v e r t i s e m e n t



To spare ourselves the national agony of suffering through either the exoneration or trial of the Bush war criminals, the United States should join the International Criminal Court and turn them over to that body. The justice would be at the very least poetic, given Bush’s unrelenting opposition to the ICC. But putting Bush and company before an international tribunal would also help repair exactly the damage that was done to America’s international reputation with the barbarous scandals of Abu Ghraib and Guantanamo.

Handing the criminals over to the ICC would mean, in a way that no other action would, that this nation hereby agrees to abide by the international rule of law. It would allow America to once again take a place among civilized nations.

It can also be a rallying point for those who think that we cannot have a full restoration of the rule of law in this nation without some accounting for those who led America down a very dark path. If it is politically impossible to put war criminals on trial in this country (except for low-level “bad apples” who made the mistake of filming themselves in the unfortunate act of following orders), then the only resolution is to turn them over to the international community, for the sake of justice. That’s the direction in which a President Obama needs to be led.

America needs to rejoin the international community by recognizing the global jurisdiction of the International Criminal Court. That act alone has the potential to mark the beginning of the end of “American exceptionalism.”

It could also mean the beginning of justice for American war criminals.