There is growing speculation that President Bush will issue pardons for the unlawful domestic surveillance program and torture program in his waning days in office. Such a pardon would be welcomed not only by his allies but some Democrats who have previously blocked any serious investigation into alleged crimes by the Administration. The pressure for pardons may be increasing with some in the Democratic ranks are publicly talking about serious investigations. I discussed this with Rachel Maddow.
A “blanket pardon” would raise serious constitutional and criminal questions, though there is some precedent in the Kennedy and Carter administrations. A traditional pardon is a public document naming individuals who are pardoned for specific crimes. One possibility being discussed is the use of a blanket pardon that would not individually name people but cover anyone associated with the unlawful programs. It would be a terrible precedent, if upheld. A president could pardon the world at the end of an Administration — gutting any accountability for criminal acts.
In the meantime, the Democrats are suggesting yet another commission to investigate the program. This suggestion has been greeted with collective groans from many who viewed the 9-11 Commission to be something of a bad joke. Not only did the Commission not push hard enough for information, but it entirely missed many of the later disclosed controversies. It was also composed of the usual suspects — well-wired Democratic and Republican activists who guaranteed that the conclusions would not prove too damaging for their respective parties.
Some scholars, however, seem to welcome the prospect of a blanket pardon, or at least see some positive elements to it. Kermit Roosevelt at the University of Pennsylvania Law School told Salon that such a pardon would make the work of a commission easier: “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. If we had a pardon followed by something like a truth and reconciliation commission, that might not be such a bad outcome.”
I could not disagree more. We regularly have commissions in this city, which have largely been ridiculed in history and will be seen as another Beltway sidestep. For such a commission to work, it would require GOP and Democratic members to appoint truly aggressive commissioners — not the same warmed-over advisers from prior administrations who are long on resumes and short on independence. More importantly, it is not clear that such witnesses would testify without immunity grants — arguing that the pardon would not necessarily protect them from any and all criminal prosecutions. Finally, there is nothing that brings out cooperative witnesses more than the threat of prosecution. Once that threat is gone, I expect many will pull an Alberto Gonzales and claim memory lapses at critical junctures.
We already saw tremendous abuse of the pardon power by Bill Clinton — including the shocking use of this official power to benefit a close family member. With polls showing that he is the least popular president in modern history, Bush may feel a bit of freedom, even recklessness, in following suit with his own pardon abuses.
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Dear Prof. Turley:
I very much enjoy your legal assesments on Keith Olbermans show, and agree that there should be a special prosecutor assigned to investigate the allegation that our country used torture to interrogate suspects, and if we did, to punish those responsible no matter how high in our government that would take us. It would send a loud message to the rest of the world that we are a nation that respects justice and the rule of law. As an aside, and I apologize if I missed your comment, does our premptive invasion in 2003 of a sovreign country, Iraq, that was not a threat to us, had not attacked us, that left thousands of Iraqi’s dead, constitute a war crime by the standards of the International Court of Justice ?
Thanks,
Dan
“Indeed, Patty C, even Turleys have trouble getting Turley Zinfandel.”
Turley Zin… good stuff, I hear… I could not get any either!
Just got this update from the Center for Constitutional Rights,
“With less than 60 days left in the Bush presidency, the chief prosecutor at Guantanamo Bay, Col. Lawrence Morris, has threatened publicly to bring additional charges against detainees before the military commissions.”
There’s more info and a letter writing campaign at their website.
Patty C 1, November 13, 2008 at 6:50 pm
He can’t give a blanket pardon to everybody for acting on his own illegal policies.
By doing so, in effect, is an admission of guilt and for that I think he needs everybody’s ‘permission’.
I say, let him go ahead and try! 😉
The second sentence of my previous post should have read: “That is, as (pick one of Bush’s crimes) is a crime according to U.S. and/or international statutes,…”