I am teaching International Criminal Law this coming Fall. Central to the notion of that field is the idea of impunity, or, to cite the Rome Statute, ending impunity for humanity’s worst crimes, with a partial goal of preventing such future crimes. It takes only a glance around world events to see that this is a goal that remains unfulfilled, in large part because of inherent limitations in terms of things like jurisdiction of the International Criminal Court, or in its inability to directly enforce its orders. 

Impunity is thus on my mind as I prepare to teach the course. Impunity is dangerous, on all levels, not just in relation to the situation it leaves unresolved, but in terms of future actions. If an actor, bent on crime and with the power to act on that inclination, knows there will be no consequences, that actor is arguably likely to feel more free to commit the crime. At least, that is the theory.  

I argued in a prior post that the impunity arising from the U.S. Government’s actions in the immediate aftermath of the 9/11 attacks set the stage for some of the current governmental abuses, and I specifically compared the Guantanamo Bay detentions to those in El Salvador to make that point. While the post-9/11 actions had their own precursors, it is impossible not to see patterns between those actions and some of the abuses of the current U.S. Government.  

In the immediate aftermath of the U.S. Government’s bombing of three places in Iran, which it claims were sites being used to build nuclear weapons, people have correctly drawn parallels to the false claim of “weapons of mass destruction” that the U.S. used to justify its invasion of Iraq in 2003. It is a fair comparison.  

In both cases, the U.S. Government advanced a questionable premise to justify military action against a sovereign nation. Before invading Iraq, the U.S. Government tried to make its case that Iraq posed a security threat because it had “weapons of mass destruction.” The making of that case included a speech given to the United Nations by then-Secretary of State Colin Powell (“Powell”), attempting to advance this claim to justify military intervention. The Iraq invasion is widely viewed as a humanitarian disaster, and, of course, no weapons of mass destruction were ever found. Powell later expressed regret for his speech to the UN. The U.S. Government has not acknowledged wrongdoing, saying instead that it was mistaken. The Intelligence, the Government claimed, was just wrong. The seriousness with which the U.S. took this lapse was evidenced during then-U.S. President George W. Bush’s (”Bush”) term, when he did a comedy sketch in which he pretended to be looking for weapons of mass destruction, including looking under a piece of furniture for them. 

While much is rightly already being said about the similarities between the U.S.’s claims of justification for invading Iraq and those advanced to attack Iran more recently, there is a key difference. Mistaken or not, the U.S. at least claimed it was relying on Intelligence when it invaded Iraq, and at least tried to make its case, however poorly, before the United Nations.  

Those factors are largely absent in the attack on Iran. We are to believe that Iran was developing nuclear weapons, based essentially on a “trust me” assertion from a U.S. President who is not famous for being truthful. In March 2025, U.S. Director of National Intelligence Tulsi Gabbard (“Gabbard”) testified before Congress, saying that the U.S. “continues to assess that Iran is ‘not building a nuclear weapon and Supreme leader Khomeini has not authorized the nuclear weapons program that he suspended in 2003’.” As U.S. President Donald Trump ("Trump") began publicly speculating about attacking Iran, he was asked about Gabbard’s statements, and he dismissed them, saying “I don’t care what she said,” and that she was “wrong.” Gabbard later claimed the media were spreading “fake news” in citing her testimony.  

It is fair to criticize the attack on Iran by reminding people of the disastrous invasion of Iraq, which was ultimately based on factually untrue assertions. The similarities are undeniable, including Bush’s premature claim of “Mission Accomplished” and Trump’s claims of victory in his social media post, later calling it a “spectacular military success” in his address to the Nation. 

As flawed as the Iraq invasion was, though, there was at least a pretense that it was a decision carried out based on Intelligence information. In the case of the bombing in Iran, even that pretense appears to be swept aside, with the President disputing the statements of his own Intelligence Director, and, rather than making a case before the UN, essentially just making statements with no proof provided and announcing the attack in a post on social media. In an interview the day after the attack, U.S. Vice-President JD Vance was asked about the discrepancy with the Intelligence community and said that, while it was important to follow the information they provide, the President must also rely on his “intuition,” adding that the U.S. was at war with Iran’s “nuclear program,” not with Iran. 

If the invasion of Iraq was a disaster based on an untruthful representation or belief, it appears that the attack on Iran is that much worse, undertaken in conflict with the U.S.’s own Intelligence community’s assertions. The U.S. Government has not even seriously tried to make the case that this attack was legally justified, and the President did not seek Congressional approval to justify the attack. It is based on a dubious claim – not that the truth of its assertion would end debate over the legality of the attack. No doubt there will be future attempts to justify the attack legally, but the gap at the moment of the attack is striking. 

Much has been said already and will be said about how the U.S. got here. This post focuses on a very small piece of that puzzle and wonders what would have happened if Bush, or others in that administration, had been prosecuted for the torture program, or for the detentions at Guantanamo Bay, or for the disastrous invasion of Iraq. After Bush’s term ended, the loudest calls for prosecution related to the formalized U.S. torture program, a program that was extensively documented in a U.S. Senate report. Then U.S.-President Barack Obama (“Obama”) declined to prosecute, saying “we need to look forward as opposed to looking backwards.” Based on that decision, U.S. officials enjoyed impunity even for an extensive and formalized program of torture. 

Bush himself has had his image largely rehabilitated in the U.S. public discourse, often presented as a sort of kindly grandfather instead of as the architect of things that include the torture program, the human-rights abuses at places like Guantanamo Bay, and the disastrous invasion of Iraq based on, at best, a false premise. Much is made of the friendship between him and the Obamas, with fond stories of him sharing candy with Michelle Obama at public events or sharing a “playful moment” with Barack Obama at the second Trump inauguration.  

In light of that, we are faced with a U.S. President who, as I’ve argued in past posts, has already enjoyed an unprecedented amount of personal impunity, convicted of 34 felony counts with no time served, directing his followers to an attack on the U.S. Capitol (and then refusing to stop the attack for hours), and more. The impunity that Obama granted to members of the Bush Administration would certainly appear to such a President to be license to do as he chooses on the international stage. That sense, of course, could also be bolstered by the immunity decision of the Supreme Court of the United States, which expanded the notion of protected presidential actions.  

Trump made little effort to prove the truth of his assertions, one might argue, because he knew there would be no individual repercussions for his actions anyway, at least legally. Congress, of course, could act in other ways, but that branch of government currently appears to be ineffective at best in addressing abuses such as this. 

Obama, in declining to prosecute officials for the torture program, insisted that it was important for the U.S. Government to “look forward.” Standing from the time when he said this, we now have the ability to look “forward,” to the present, and what we see is problematic. It is impossible not to wonder whether we would be here if there had been any accountability at all for the abuses of the U.S. Government after 9/11, elsewhere too, but specifically there. There is no way to know, as, even if Obama had been willing to pursue prosecutions, the course of such prosecutions would have been relevant. The lack of any will to even pursue the issue, though, arguably enhanced an already problematic atmosphere of impunity for egregious human-rights abuses. Truly looking forward always requires looking back, and the failure to hold officials accountable then has arguably contributed to a troubling atmosphere of impunity now.