Will President Bush Issue a Blanket Pardon?

225px-george-w-bushThere 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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46 thoughts on “Will President Bush Issue a Blanket Pardon?”

  1. My question is this: Wouldn’t a pardon issued by Bush for members of the administration who committed a crime be null and void as the pardon would be issued by a participant in the crime? That is, as is a crime according to U.S. and/or international statutes, and as the crime was initiated and/or perpetrated with Bush’s permission, how can Bush, a participant in the crime, pardon others who were also involved with the crime?

  2. I just saw the news that Obama confirmed that he will close Gitmo and rid our country of torture and remove us from Iraq. Now we just need him to go after the people who authorized torture.

  3. The Obama’s just appeared on “60 minutes”; I love our shiny new President-elect and our beautiful First Family!

    President-elect Obama stated he will use executive orders to close Gitmo and stop torture. He will also keep his promise to begin to planning for withdrawal from Iraq.

  4. Like I said – The cat was ‘ out of the bag ’ in April – specifically on April 3 with JT’s appearance on KO where he spoke about the Yoo memo and negated any suggestion that ‘Abu Ghraib’ was ‘hicks (low-lying West Virginia fruit) with sticks’…

    *** Check it out on youtube.

  5. rafflaw,

    I feel the same way and it has put our people in harm’s way, not to mention it is odious.


  6. Jill,
    I just finished watching the Torturing Democracy video that you linked to. It was an amazing, but sad video. It is vital that we, as a country, take steps to bring these war criminals to justice. I know that might be wishful thinking, but I do believe that our Nation has been seriously harmed by these men and women who authorized the torture. Our soldiers are in danger of having the same tactics used on them.

  7. Here’s a link to a documentary on torture and it’s approval at the highest level of the cheneybush administration. Evidently, PBS has tried to suppress it. (from g. greenwald’s column today)

    “Last month, I interviewed Harper’s Scott Horton regarding a piece he had written on the efforts of several PBS officials, including Jay Rockefeller’s wife (the CEO of Washington’s PBS affiliate) to block broadcast of the documentary Torturing Democracy, which compellingly documents how virtually all of the torture and other illegalities and abuses of America’s interrogation programs were authorized and ordered at the highest levels of the Bush administration (of which waterboarding is but one small example).

    That documentary is now available to be viewed in its entirety online — here — and I can’t recommend it highly enough. Though it includes a few standard documentary tactics that I could do without (ominous music, grave-toned narration, black-and-white up-close photos of the villains), it is an extraordinarily well-documented account of America’s torture program over the last seven years and, most informatively, the role that top Bush officials played in those programs. Notably, most of the sources on which it relies are former U.S. military and Bush administration officials who waged courageous though ultimately unsuccessful battles to halt these programs.

    I’m particularly amazed that someone could be aware of this set of facts — could know that our highest government officials deliberately and knowingly authorized torture techniques that are war crimes under both U.S. law and international treaties to which we are a party — and still argue, as so many do, that it would be wrong to hold these political officials accountable for the laws they systematically violated. It’s easy to say how horrendous one finds torture to be. But those who simultaneously advocate that American political leaders should be immunized from the consequences of their criminality — that, in essence, we should refrain from enforcing these laws — are proving that those are empty words indeed.”

  8. No one here is saying it is time to ‘move on’ with regard to this adminsotrations actions. That’s what this blog has been about, primarily, before you got her, Jill.

    Unfortunately, there are other things more pressing at the moment and we are going to have to be a little patient. I don’t like it and neither do the rest of us ‘turlees’

  9. Mark,
    That is a good queston, but it is above my pay grade. I am sure someone on here will have the answer. I do remember in Nixon’s case that the House was close to bring Articles of Impeachment when Republicans met with him and told him the time had come for his resignation. It is possible(my opinion) that Nixon may have demanded an agreement for a pardon before his acceptance of the resignation idea. I don’t remember reading anything about it then, but I may have missed something.

  10. I have a serious question. Outside of Ford’s a priori pardon of Nixon, are there any other cases of a pardon being given before a conviction?

    Since, the Constitution gives Congress the power to grant immunity and the President the power to pardon, wouldn’t any Presidential pardon granted before a conviction be unconstitutional as it would actually constitute immunity, a power not granted to the President?

    I have never seen this point made anywhere, but it seems obvious.

  11. What is more prescient is the idea of a Constitutional crises…!!!

    This president from the beginning was a disaster in the making.

    Just ask his anybody in his own family!

    I know this because I worked at one of the best hospitals in the country and for someone, who I trusted invariably, who also went to Yale, who also had a long Yale family history, lived in the South, and who also knew the Bushes very well because his grandfather’s Urology practice in Virginia was one dedicated to ‘the stars’…

    Our practice was no different in that regard except that we catered to all – not just the privileged. That’s why I loved working with him -in particular.

    My former mentor is now deceased, but that does not diminish his first hand observations…

  12. Bob,Esq.,
    I agree with your framing of the issues. I did see Prof. Turley’s appearance on Rachel Maddow’s show. I am not sure I agree entirely with his comparison to the Clinton pardon of a relative, but I understand that it was the closest precedent to a President pardoning himself. I fully agree with his concept of the State and Federal charges for the President’s actions.
    We can only hope that charges will be brought after January 20th, 2009.

  13. Cheers, mon ami!

    I have more ACORN squash recipes
    -if you’re still interested…! 😉

  14. for those who ‘missed it’, first… (see below)

    Article II

    Section 2: Presidential Powers

    Clause 1: Command of military; Opinions of cabinet secretaries; Pardons
    Clause 1: Command of military; Opinions of cabinet secretaries; Pardons

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    The President is the military’s commander-in-chief; however Article One gives Congress and not the President the authority to declare war. Presidents have often deployed troops with Congressional authorization, but without an explicit declaration of war. (Since WW II, every major military action has been technically a U.S. military operation or a U.N. “police action”, which are deemed legally legitimate because of decisions such as the Gulf of Tonkin Resolution, Authorization for Use of Force by Congress, and various U.N. Resolutions. This is also true in the case of the Korean War, which was only retroactively deemed a war — 50 years to the day, after the fact — by a ceremonial Act of Congress.)

    The President may require the “principal officer” of any executive department to tender his advice in writing. Thus, implicitly, the Constitution creates a Cabinet that includes the principal officers of the various departments.

    The President, furthermore, may grant pardon or reprieves, except in cases of impeachment. Originally, the pardon could be rejected by the convict. In Biddle v. Perovich, however, the Supreme Court reversed the doctrine, ruling that “a pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”


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