That question has troubled me for quite a while. The Hamdan decision certainly suggests that, by ignoring the Geneva Conventions even in Guantanamo (let alone in Iraq), a war crime has been committed. And in the military, the command structure insists that superiors are held accountable. I've been saying this for a long time now, and have watched aghast as the Bush administration has essentially dumped responsibility for war-crimes on the grunts at Abu Ghraib. The evidence already available proves that the president himself ordered torture and abuse and the violation of the Geneva Conventions. Now he has been shown to be required to act within the law, and according to the Constitution, his liability for war crimes therefore comes into focus.
In an excellent background piece about the Bush presidency, Elizabeth Drew writing in the NY Review of Books provides potent insights into the workings of the Bush presidency. The Bush administration has injected fear into the hearts of Republicans, so this congress puts no check on presidential power grabbing. Drew concludes her piece with a historical reality check:
James Madison wrote in Federalist Paper No. 47:The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many...may justly be pronounced the very definition of tyranny.
That extraordinary powers have, under Bush, been accumulated in the "same hands" is now undeniable. For the first time in more than thirty years, and to a greater extent than even then, our constitutional form of government is in jeopardy.