Elizabeth Holtzman has a new article in the Nation, Torture and Accountability. It blows the cover off the "few bad apples" meme and makes a case for a war crimes prosecution of higher-ups.
The key question is not whether detainees in Iraq were subjected to inhuman treatment in violation of the War Crimes Act, but how high up the responsibility goes for those abhorrent acts. Under well-established principles of international law, officials in the chain of command who order inhuman treatment or who, knowing about it, fail to stop it are responsible. The "chain of command" doctrine is undoubtedly applicable to War Crimes Act prosecutions. But even if it weren’t, higher-ups could be held responsible under the principles of conspiracy or aiding and abetting the crime under normal federal criminal law. This was surely the reason that Gonzales wanted to block future prosecutions of higher-ups by "prosecutors and independent counsels."
It’s a long but powerful article, and well worth reading.