Legal Commentary

Will Bush Issue Blanket Pardons For Rendition & Torture?

By TChris

Some Obama advisors are proposing a bipartisan commission to study the Bush administration's rendition and interrogation tactics. This balanced report by Mark Benjamin describes a tension between Obama advisors who advocate a criminal investigation and those who believe prompt criminal prosecutions would be ugly, ineffective, and problematic for Democrats who may have been briefed about the administration's actions.

Digby is skeptical that Obama will greenlight an investigatory commission, particularly if President Bush thwarts the possibility of criminal prosecutions by exercising his pardon power. According to Benjamin:

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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."

Presidents have pardoned groups of people who acted in matters of conscience.

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.

Pardoning everyone who violated the law pursuant to an executive policy is a different matter. Jonathan Turley points out that a blanket pardon would "would allow a president to engage in massive illegality and generally pardon the world for any involvement in unlawful activity."

The Bush administration has already engaged in massive illegality. Bush values loyalty above all. He rewarded Scooter Libby. There's no reason to think he won't reward everyone who authorized, planned, participated in, or covered up illegal interrogation methods. You don't expect George Bush to pass up one last opportunity to abuse his presidential power, do you?

Digby seems certain of this:

If Bush does the pardons all bets are off.

Let's hope not. The public deserves to know who did what. Accountability isn't just about punishment. We can't fix problems without understanding their causes. Just as we needed to understand 9/11, we need to understand how our government became involved in rendition and torture.

If Bush does issue a blanket pardon, a commission's ability to investigate would likely be enhanced. Having been freed from the worry of prosecution, witnesses would probably lose their Fifth Amendment privilege to remain silent. An aggressive use of the subpoena power, combined with the Obama administration's release of any documents it can recover from the paper shredders and deleted hard drives, could provide valuable and necessary insight into the Bush administration's abuse of presidential power.

Full post as published by TalkLeft on November 13, 2008 (boomark / email).