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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