Torture and Pardons and The Truth

rimrocker · Nov 13, 2008

You know it's coming... will an Obama administration do the right thing? At a minimum, we need a Truth Commission to figure everything that was done in our name over the last 8 years.

Beware Bush's preemptive strike on torture
The president might issue a blanket pardon to block prosecution of top U.S. officials behind brutal interrogations -- including himself.

By James Ross
http://www.salon.com/opinion/feature/2008/07/10/bush_pardon/print.html

Jul. 10, 2008 | New revelations of the U.S. government's systematic use of torture in the "global war on terror," including communist Chinese "brainwashing" methods from the 1950s, have brought renewed calls from lawmakers and human rights advocates for the prosecution of senior Bush administration officials. While the legal and political obstacles to such prosecutions are steep, those implicated will not want to leave the enjoyment of their retirement years to the mercy of the federal judiciary.

So don't be surprised if some time before Inauguration Day 2009, President George W. Bush issues a blanket presidential pardon to ensure that those who organized and implemented brutal interrogation techniques such as "waterboarding" (a terrifying simulated drowning) are never hauled before the courts. A pardon would prevent future administrations from ever prosecuting those responsible for torture and other mistreatment at Guantánamo Bay and secret CIA detention facilities elsewhere overseas.

The president may well want to protect loyalists who designed or oversaw his most secretive tactics in the war on terror, and behind closed doors he may be under some pressure to do so. If in the end Bush pardons the stewards of his interrogation policies it would be a final act of injustice by a president whose legacy includes running roughshod over fundamental freedoms and undermining America's ability to promote human rights abroad.

The Constitution provides the president virtually unlimited power "to grant reprieves and pardons" for federal crimes; only impeachment is excluded. A president need not give reasons for pardons and Congress has no power to reject or otherwise block them.

Historically, the pardon power has been used for a variety of reasons. Presidents have issued pardons to individuals to undo unjust or overlong sentences, or as an expression of mercy. Founding Father Alexander Hamilton wrote in the Federalist Papers that "the benign prerogative of pardoning" was necessary, otherwise "justice would wear a countenance too sanguinary and cruel." Until recent decades, it was the norm for presidents to issue hundreds of individual commutations and pardons each year.

But the president can also grant a pardon before charges are even filed for a crime, not just after a conviction. This has occurred most frequently after insurrections or wars fought to, in Hamilton's words, "restore the tranquility of the commonwealth." Andrew Johnson pardoned the soldiers of the Confederacy and Jimmy Carter issued a broad amnesty for Vietnam War-era draft dodgers. These amnesties permitted large numbers to return to the national fold.

Such "preemptive pardons" have less justification in individual cases. The criminal justice system is deprived of its responsibility to investigate criminal wrongdoing. The victims are denied the sense of closure that only criminal prosecutions can bring. And the general public loses the opportunity to examine the evidence before it.

Presidential pardons have frequently been controversial. Carter's Vietnam pardon, issued on his first day in the White House, reopened old wounds while it healed others. Ronald Reagan pardoned two FBI agents convicted for conducting illegal break-ins in the investigation of the radical Weather Underground. Most famously, Gerald Ford probably lost the 1976 presidential election because of his preemptive pardon of Richard Nixon two years earlier.

As a result, presidents have taken to waiting until the very end of their administration before handing down controversial pardons. George H.W. Bush pardoned six defendants in the Iran-Contra scandal, including former Defense Secretary Caspar Weinberger, with less than a month to go in his presidency. Bill Clinton issued 140 of his 395 pardons on his final day in office, including that of financier Marc Rich, who had fled the United States on tax evasion charges. While last-minute pardons may dampen the political damage, they tend to live on long in the historical record.

Since 9/11, President Bush has pushed the limits of presidential power in numerous ways -- although he has barely used the pardon power, among the most explicit executive prerogatives. At a press conference in February 2001, Bush responded to questions about Clinton's Rich pardon, saying, "Should I decide to grant pardons, I will do so in a fair way. I'll have the highest of high standards." By mid-2007 he had commuted the sentences of just three minor drug offenders serving long prison terms and issued 113 post-sentence pardons.

But after a federal appeals judge last year upheld the 30-month sentence of vice-presidential aide Lewis "Scooter" Libby for his role in the Valerie Plame spy scandal, Bush called the penalty "excessive," extolled Libby's "years of public service" and commuted fully his prison time. It was a clear demonstration of his willingness to protect top officials involved in his wartime policies.

So what of those responsible for torturing detainees? There is the distinct possibility that in his administration's waning days Bush will issue a preemptive pardon for all those who have or may have committed federal crimes relating to detainee interrogations. He might even invoke his father's Orwellian praise of the Iran-Contra defendants, who were pardoned because of their "patriotism" and "long and distinguished record of service to the country," and who the elder Bush believed had been caught up in "the criminalization of policy differences."

Such a pardon might seek to protect low-level government personnel who relied on legally dubious Justice Department memos on interrogations. But it would also provide blanket immunity to senior administration officials who bear criminal responsibility for their role in drafting, orchestrating and implementing a U.S. government torture program.

Constitutionally, neither Congress nor the courts can prevent President Bush from signing such a pardon. It would, however, be the first preemptive pardon in U.S. history for war crimes. And because of his own possible criminal role in approving the torture program, Bush effectively would be granting a self-pardon -- something Nixon seriously considered but no president has ever done. As he ponders his historical legacy, Bush might just decide that this is a pardon better left unsigned.
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Obama's plans for probing Bush torture
President Bush could pardon officials involved in brutal interrogations -- but he may also face a sweeping investigation under the new president.

By Mark Benjamin
http://www.salon.com/news/feature/2008/11/13/torture_commission/print.html

Nov. 13, 2008 |

With growing talk in Washington that President Bush may be considering an unprecedented "blanket pardon" for people involved in his administration's brutal interrogation policies, advisors to Barack Obama are pressing ahead with plans for a nonpartisan commission to investigate alleged abuses under Bush.

The Obama plan, first revealed by Salon in August, would emphasize fact-finding investigation over prosecution. It is gaining currency in Washington as Obama advisors begin to coordinate with Democrats in Congress on the proposal. The plan would not rule out future prosecutions, but would delay a decision on that matter until all essential facts can be unearthed. Between the time necessary for the investigative process and the daunting array of policy problems Obama will face upon taking office, any decision on prosecutions probably would not come until a second Obama presidential term, should there be one.

The proposed commission -- similar in thrust to a Democratic investigation proposal first uncovered by Salon in July -- would examine a broad scope of activities, including detention, torture and extraordinary rendition, the practice of snatching suspected terrorists off the street and whisking them off to a third country for abusive interrogations. The commission might also pry into the claims by the White House -- widely rejected by experienced interrogators -- that abusive interrogations are an effective and necessary intelligence tool.

A common view among those involved with the talks is that any early effort to prosecute Bush administration officials would likely devolve quickly into ugly and fruitless partisan warfare. Second is that even if Obama decided he had the appetite for it, prosecutions in this arena are problematic at best: A series of memos from the Bush Justice Department approved the harsh tactics, and Congress changed the War Crimes Act in 2006, making prosecutions of individuals involved in interrogations more difficult.

Instead, a commission empowered by Congress would have the authority to compel witnesses to testify and even to grant immunity in exchange for information. Should a particularly ugly picture emerge, the option of prosecutions would still theoretically be on the table later, however unlikely.

In Obama's camp, there is a sense among some that such a commission would essentially mean letting Bush get away with crimes. "People have called for criminal investigations," one person familiar with the talks told me this summer as plans got under way. On Wednesday, a person participating in the talks confirmed that some people involved in the planning felt strongly that the commission would amount to "bull****" and that Bush officials should be prosecuted to the full extent of the law.

But few think prosecutions are realistic, given the formidable legal hurdles and the huge policy problems competing for Obama's attention. Among them is the complicated task of closing down the military prison at Guantánamo Bay, which Obama advisors say is a priority. Some observers outside the Obama camp are also questioning how much Democrats really want exposed with regard to interrogation, since top Democrats in Congress were briefed in secret on some of the harshest tactics used by the CIA and appear to have done little, or perhaps nothing, to stop them.

Further complicating the Obama team's planning is uncertainty about what President Bush might do. On the one hand, a blanket pardon for anyone involved in the interrogations could be viewed by the public as a tacit admission of colossal wrongdoing -- after years of public denial -- which would do nothing to help Bush's tarnished legacy. Yet, if the administration fears an investigation will follow Bush out the door in January, they may not want to leave officials exposed to potentially revealing criminal proceedings. Bush might seek to frame a blanket pardon as a preemptive strike against wrongheaded, partisan retribution.

Constitutional scholars say a pardon of this kind would be an unprecedented move -- the prospective pardon of not just individuals but entire categories of people, perhaps numbering in the thousands, for carrying out the president's orders , which the White House has argued all along were legal.

Those scholars agree, however, that Article II of the Constitution gives Bush much latitude: There is no authority that can stop the president from doing so if he wishes, and there is no outside check or balance to revisit such a decision, however controversial it may be. "The president can do with pardoning power whatever he wants," explained University of Wisconsin Law School professor Stanley Kutler. "It is complete and plenary unto itself."

A blanket pardon from Bush could cover, for example, anyone who participated in, had knowledge of, or received information about Bush's interrogation program during the so-called war on terror. Not only are there potentially too many people to name without risking missing somebody, but some of the names are presumably classified.

"The classic pardon is an identifiable individual; here you are talking about potentially thousands of people involved in illegal activities," explained Jonathan Turley, a professor at George Washington Law School. A blanket pardon of this variety, Turley said, "would allow a president to engage in massive illegality and generally pardon the world for any involvement in unlawful activity."

There are, in fact, some constitutional scholars who believe a pardon might actually facilitate more complete participation in a fact-finding commission, by removing the threat of looming liability. "Holding people accountable is certainly nice, but in terms of healing the country and moving forward, so is actually getting a clear picture of what happened and letting the public make an informed decision," said Kermit Roosevelt at the University of Pennsylvania Law School. "If we had a pardon followed by something like a truth and reconciliation commission, that might not be such a bad outcome." (Roosevelt represents a detainee held at Guantánamo.)

The politics of it would be fraught with danger, however, and could so blemish Bush's legacy that some doubt he would go so far. "A pardon is an admission of guilt," noted Donald Kettl, a political science professor at the University of Pennsylvania. Bush has argued for years that his interrogation program was perfectly legal. With a pardon, Kettl said, Bush is essentially saying, "Gee, maybe we did not do the right thing."

It is not entirely unprecedented for a president to grant a pardon based on a category of behavior, rather than pardoning an individual by name. The day after his inauguration, President Carter pardoned all those who avoided the Vietnam draft by failing to register or by fleeing to Canada. George Washington pardoned participants in the 1794 Whiskey Rebellion. Andrew Johnson pardoned Confederate soldiers in 1865.

But these were pardons designed to foster reconciliation, handed out to categories of individuals who acted on their own conscience, rather than the president's own allegedly illegal orders. "This would be a different deal completely," explained Kettl. "It would be anticipating that people thought the official policy of the administration was wrong."
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JuanValdez · Nov 13, 2008

The Presidential Pardon is probably one of the stupider things our founding fathers saw fit to put in the Constitution. The abuse of this power has been a national embarassment, imo.

HayesStreet · Nov 13, 2008

What is unclear?

professorjay · Nov 13, 2008

Unless memory serves me wrong, I think it's tradition for new Presidents to not touch the previous President's pardons. As much as I think this whole pardon thing is bunk, I doubt Obama would break tradition.

fmullegun · Nov 13, 2008

professorjay said:

Unless memory serves me wrong, I think it's tradition for new Presidents to not touch the previous President's pardons. As much as I think this whole pardon thing is bunk, I doubt Obama would break tradition.
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Once they are pardon you cannot just convict them again. He does not have conviction power, he has pardon power.

JuanValdez · Nov 13, 2008

To pardon himself or others would be a sort of admission of guilt. I don't think he'll do that unless there is a palpable threat of prosecution. And, I don't see this country having the courage to bring charges against our ex-President and his cabinet.

thadeus · Nov 13, 2008

Most presidents have had some pretty nasty characters on their pardon lists. Clinton had a few doozies like wealthy arms sellers and drug traffickers, and George H.W. Bush basically made the Iran-Contra cover-up into a success with his pardons (and also likely saved himself from prosecution).

HayesStreet · Nov 13, 2008

thadeus said:

Most presidents have had some pretty nasty characters on their pardon lists. Clinton had a few doozies like wealthy arms sellers and drug traffickers, and George H.W. Bush basically made the Iran-Contra cover-up into a success with his pardons (and also likely saved himself from prosecution).
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There was little chance of GHWB being prosecuted for Iran-Contra. Much less than W for Guantanamo etc and that is a less than .0000001%, IMO.

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