Legal Scholars Outraged by Talk of Blanket Pardons

By
Monday, December 08, 2008 at 1:53 pm
President George W. Bush (WDCpix)

President George W. Bush (WDCpix)

In his Nov. 16 interview on CBS’s “60 minutes,” President-elect Barack Obama reiterated his pledge to shut down Guantanamo Bay and end U.S.-sponsored torture. Both actions would be “part and parcel of an effort to regain America’s moral stature in the world,” he said.

Obama’s advisers are similarly encouraging him to look to the future and avoid the appearance of seeking vengeance for past practices. But many legal experts insist it’s as important not to let those responsible for diminishing America’s moral stature get away scot-free.

Matt Mahurin

Illustration by: Matt Mahurin

“When we speak about accountability, we’re not talking about vengeance,” lawyer and writer Scott Horton told at a packed forum on torture at New York University School of Law last week. “We’re really talking about the future.” President George W. Bush “has set a precedent that we cannot let stand.”

Rep. Jerrold Nadler (D-N.Y.), who also attended the forum, added: “Accountability is one of the most important questions before the country. It’s critical to preventing a recurrence of the lawbreaking that clearly has been done [by this administration].”

Liberal lawyers and civil rights advocates have been calling for prosecutions, even impeachment, of Bush officials tied to torture for years. Elizabeth Holtzman, a former Democratic congresswoman, published “The Impeachment of George W. Bush” in 2006. Michael Ratner, president of the Center for Constitutional Rights, published his book, “The Trial of Donald Rumsfeld: A Prosecution by Book,” in September. Others have published volumes of evidence implicating Bush officials in potentially criminal conduct . Among the most influential are Jane Mayer’s “The Dark Side,” Phillipe Sands’ “Torture Team” and “The Torture Papers,” a collection of administration documents on detainee abuses edited by Karen Greenberg, executive director of the Center on Law and Security at NYU, and Joshua Dratel, a prominent defense attorney who represents detainees at Guantanamo Bay.

But as the administration nears its end, the debate over what Obama should do about officials who authorized torture, humiliation or systematic abuse of detainees as part of the “war on terror” has become more urgent. (The NYU forum attracted so much interest that hundreds of vociferous supporters of prosecution were denied entry into the auditorium because of fire-code restrictions.)

Even as the pressure on Obama to take action grows, some prominent legal experts are urging restraint.

In a Nov. 26 Op-Ed in the Washington Post, Harvard law professor Jack Goldsmith, director of the Office of Legal Counsel in the Justice Dept. from 2003-2004, urged the incoming administration to let bygones be bygones. The decisions to use waterboarding or other forms of torture on terrorist suspects should not be prosecuted as criminal actions, he argued. Instead, they were wartime policy decisions that shouldn’t be second-guessed by lawyers. “[T]he greater danger now is that lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment,” he wrote.

But what if President Bush pardoned himself and all other officials who authorized abusive interrogations of prisoners? Would that render the torture-accountability debate moot?

In August, Stuart Taylor Jr., a Brookings Institute fellow and columnist for Newsweek and the National Journal, argued that the president should issue a blanket pardon — and leave it to a non-prosecutorial truth commission to set the record straight for posterity.

Atty. Gen Michael Mukasey, however, has insisted repeatedly that neither investigations nor pardons are needed, because everyone in the administration was acting on the advice of Justice Dept. lawyers — and thus did nothing wrong.

As the debate over accountability heats up, the possibility of Bush issuing a blanket pardon increases — and that outrages lawyers and legislators who would see such a move as a flagrant abuse of executive power.

In November, Nadler, the congressman, introduced a House resolution urging the president not to pardon officials who authorized torture and potential lawbreaking. Since then, Democrats.com has been circulating a petition on the Internet to collect signatures of those who support the resolution. So far, almost 50,000 have signed it.

But legal experts say that neither the resolution nor the petition would have any legal effect on the matter.

“Congress can’t control the pardon power,” said New York University law professor David Golove, an expert on executive power. “For practical purposes, there are no clear limits.”

The breadth of the president’s pardon power has been challenged before, particularly after President Abraham Lincoln pardoned former confederate officials who swore an oath of loyalty to the Union. But in Ex Parte Garland, the Supreme Court spelled out just how far-reaching the president’s power is.

The pardon power “clothe[s] the president with the power to pardon all offenses, and thereby to wash away the legal stain and extinguish all the legal consequences of treason — all penalties, all punishments, and everything in the nature of punishment,” the court ruled.

Accordingly, if Bush pardoned administration officials accused of authorizing torture — say, Rumsfeld, Vice President Dick Cheney, Cheney Chief of Staff David Addington or former Justice Dept. lawyer John Yoo, to name a few frequently mentioned possibilities — legal experts say the pardons would be extremely difficult to challenge in court. The fact that none of these men have been convicted of anything makes no difference.

The Confederates pardoned by Lincoln hadn’t been indicted or tried, either. Similarly, President Jimmy Carter preemptively pardoned draft evaders during the Vietnam War when he took office in 1976. Even the Watergate-plagued Richard Nixon, pardoned by Gerald Ford in 1974, was never convicted of a crime.

Could Bush pardon himself?

That’s legally dicey. Although it’s never been done before, nothing in the Constitution specifically prevents it.

“I do not believe that a president can issue a pardon of himself,” said Holtzman, a panelist at the NYU forum. “I believe that would be an abuse of the pardon power.”

Some say that pardoning administration officials whose actions you signed off on would also be an abuse of power. Allowing a president to do that may set a precedent that’s even more destructive, say some legal experts, because it would remove any incentive for future presidents to follow the law.

“One of the most effective potential weapons to assure that a runaway executive does not violate the rule of law is that the people who carry out the president’s wishes are themselves subject to legal jeopardy,” said Golove.

In that regard, the U.S. presidency is similar to the British system. Although by law the English king could do no wrong, his ministers could, explained Golove. “So the way you controlled the crown was by threatening to bring criminal prosecutions against those who carry out his orders.”

That’s been the case in the United States as well. “So to allow the president to pardon those people is to remove to a considerable extent the incentive for the executive branch to follow the law,” contended Golove. “I see this as a terrible problem.”

Carolyn Patty Blum, emeritus professor at UC Berkeley’s Boalt Hall School of Law, agrees. “Bush doesn’t really need to pardon himself if he preemptively pardons others, because then no one has an incentive to talk about his role.”

Some commentators, such as Taylor, have argued that a blanket pardon would still allow for the appointment of a truth commission along the lines of South Africa’s Truth and Reconciliation Commission. It could be easier for such a body to learn what really happened because participants wouldn’t face jail for participating.

But Blum, a consultant to the International Center for Transitional Justice, which specializes in accountability for human-rights abuses, disagrees. “[Our] institutional experience working with truth commissions around the world is that the opposite happens. Once people feel they are already protected, they don’t have any incentive to come forward.”

In South Africa, she noted, people were pardoned only after they testified truthfully about their crimes.

Pardons for administration officials would not necessarily close down the inquiry, however. A pardon wouldn’t stop victims of torture from suing U.S. officials, for example, and revealing the truth — although federal government officials can claim all sorts of immunities that would make such cases difficult to pursue in the United States. And a pardon would not prevent another country, or an international tribunal, from investigating and prosecuting war crimes and other violations of international law.

“Hitler could not pardon himself and the Nazi general staff for war crimes committed during World War II,” said Golove. “Even if he could have pardoned them under German law, that wouldn’t have had any effect at the Nuremberg Tribunal.”

As Ratner of the Center for Constitutional Rights noted at the NYU forum, “You cannot pardon war crimes and torture. Maybe here, but they’re not going to walk so freely in Europe.”

The center and prosecutors abroad have already sought to bring administration officials to trial in Germany, France, Italy and Spain, among other countries. Although charges probably wouldn’t land any U.S. officials behind bars, it could at least put a crimp in their travel plans — and prompt investigations that might further tarnish the Bush legacy.

Comments

89 Comments

David Powell
Comment posted December 8, 2008 @ 4:02 pm

Is it sad that the “only” hope for justice relies on the possibility of foreign courts to mete out justice? It makes me ashamed to be an “American”. We authored these ideas.


Ellen
Comment posted December 8, 2008 @ 4:43 pm

A couple of points here. First. Bush has never respected the rule of law. Even before he became president. The law means nothing to him because he's never had to face any consequences for ANYTHING. Also, remember Pinochet!


Thomas
Comment posted December 8, 2008 @ 10:37 pm

Their crime was to kill a half MILLION totally innocent Childern, Women and men based on LIES that their LIE facrory created…..The Iraqi's became the BushCo NeoCons Tootsies, ala Rwanda……. They make Manson look like the circus freak he is AND put them in with the lykes of Hiitler and Stalin and the other greedy monsters throughout history…….. In America No one is above the law, not even the president, as the Republicans showed whey they impeached Clinton


-bwg
Comment posted December 8, 2008 @ 11:49 pm

If President Bush were to pre-emptively pardon accused war criminals, then wouldn't the new administration would be obliged to extradict them to be tried before a competent international authority?


Romira
Comment posted December 9, 2008 @ 4:16 am

Bush and his gang of criminals are as guilty of murder, torture and abuse as any other thug or Nazi. Its a disgusting display of American exceptionalism at work when it is even debated by legal and other scholars in the States as to what should and should not be done to them in this regard.

Bush is a war criminal by any standard one wishes to use, pure and simple. He and his murderous thugs have caused massive devastation on innocent people. Will someone tell me why they are being treated with such deference by so many?

But wait a minute, Bush and his thugs did not do anything wrong since their legal advisers told them that what they were doing was legal under the circumstances, even though they broke umpteenth diffirent national and international laws: Also, in that case, the Nazi generals and war criminals should have also been spared since, after all, they were just following orders like good soldiers should.

What a crock of bull. PROSECUTE those war criminals and come clean America!


thedeanpeople
Comment posted December 9, 2008 @ 5:41 am

There's still plenty of time to impeach. Yes, really.

All it would take is for impeachophobes like Nadler to get off his (formerly) fat ass and ACT. All this whining does not fulfill his Geneva-covered duty as a US Gov't Official to report and ACT to stop ongoing torture and other violations. Not to mention that silly little oath of office.

The reality is that the ONLY moral, patriotic option: Impeachment For Torture — is still easily doable.

And unless a majority of House members or 40 Senators wish to publicly proclaim themselves war criminals by defying our treaty obligations (and US Federal Law) in defense of the indefensible, it can be over in less than a week. (There's literally no need for “investigating” or “discussing” – all in on the public record.)

All we need are up or down votes in both bodies — from all those Geneva-Covered Gov't Officials in Congress. Who are all, btw, currently in the status of Nuremberg defendants — who have been treating atrocities like political business as usual. So it may not just be the regime on the bus to the Hague. Aiding and abetting after-the-fact has consequences too.

But go on. Prattle on about your pardon paranoia and the groupthink that “all is well” because we've all agreed that “something must be done — at some later time — (always) by somebody else.”.

The rest of us will just live with the fact that “fear of the divisiveness monster” — and other forms of baseless paranoia — have rendered us now a War Criminal Nation. And begin the generations-long process of living down Our National Shame as the “Good Germans” have had to before us.


B McDonnell
Comment posted December 9, 2008 @ 6:11 am

Germany in 1924, Japan in 1936 went down the imperial impunity road: Hitler of his violent attempt to take power; naval officers of assassinations in Japan- including of a Prime Minister. In both cases lenient and sympathetic courts let perpetrators of awful crimes off with a slap on the hand, and the criminals didn't go away. Both countries slipped down the slope to dictatorship and disaster as a result.

If the authors of torture don't go to jail now they will be back.


David Swanson
Comment posted December 9, 2008 @ 6:33 am

Imagine that you took your family to the White House for a Christmas tree lighting ceremony, and you were all standing in the front row as the president made some brief remarks, you and your spouse and your two children, a little girl and a little boy. And imagine that after talking for a few minutes the president turned to his chief of staff, handed him a knife, and said “Would you mind grabbing that little girl out of the front row and bringing her up here and slitting her throat?” And imagine that the chief of staff did just that, as you and others screamed and fought with various aides and secret service officers. And then someone shouted “Arrest him!” while pointing at the chief of staff. But the president held up a piece of paper and declared: “I'm pardoning him right now!” And all the shouting suddenly stopped. People murmured to each other: “Oh, well, if he's pardoned he's pardoned.” And the president stood and smiled, paused for a while, and then turned to the chief of staff and said “It covers torturing the little boy too.”

Would you say “Enough!” Even if you'd been to law school? Or would you still declare the pardon power to be “unlimited”? Would it take more than this to awaken an ounce of humanity or independent thought from deep within your brain?

Not to worry. What we are dealing with is far more than this. We are dealing with the gruesome sadistic torture and murder of thousands of people. We're dealing with a war that's left over 1.2 million dead, 4 million displaced, millions more without decent water, food, or shelter. We're dealing with people kidnapped, kept in outdoor cages for years without any indication of reason to hope, prisoner suicides, prisoner torture, people hung from their wrists until they passed out or died, people shocked with electricity, beaten with sticks, or given the water torture. Your little daughter is only one person, but imagine if she were thousands, and that they were all tortured, raped, and murdered, every single one. And then tell me that the pardon power is “unlimited.” Tell me that the Supreme Court of the United States has no possible choice other than to conclude that the pardon power is “unlimited.” Can you tell me that and show your face in public? I dare you.

Do you believe large crimes are less important than small ones, crimes against Muslims are less important than crimes against Christians, crimes against foreigners are less important than crimes against Americans? Do you believe those things? Think about it before you answer. Now tell me if the pardon power is unlimited. Tell me if it makes sense for human rights groups to declare that the pardon power is unlimited and to then ask a man like George W. Bush, his arms drenched in blood up to the shoulders, to please not abuse his unlimited power. Is that a smart thing to do? Is it a conscionable thing to do? Is it something we can do and not become complicit in crime?


Andrew P
Comment posted December 9, 2008 @ 6:53 am

Push can and should consider issuing a preemptive pardon to all DOD and CIA employees and contractors who tortured enemy prisoners under orders. It should not apply to any rouge actions. And, such a pardon will not induce anyone to talk. However, there is a downside to being pardoned, that Bush must also consider. Pardons do not exempt anyone from extradition, but they do have the effect of eliminating 5th ammendment claims. The Supreme Court has ruled that the possibility of foreign prosecution is irrelevant. If someone has immunity, they MUST testify. Something to think about.


gunsmoke
Comment posted December 9, 2008 @ 7:44 am

Andrew P: the only “rouge actions” I know of consist of women putting rouge on their cheeks with a powder puff.


GrassRoots
Comment posted December 9, 2008 @ 8:17 am

Hold them ALL accountable…NOW! If Congress fails to act, they are complicit, and the RULE OF LAW, and the REPUBLIC will be DOA when the new administration takes power.


jsbar
Comment posted December 9, 2008 @ 8:20 am

What about the half million Iraqi children that were killed by sanctions and Albright proclaimed “it was worth it” during the the Clinton administration?


Hawaiian style
Comment posted December 9, 2008 @ 11:07 am

I have no doubt that the President will issue a blanket pardon. The important question is how does the legal community respond?

What will be the response if he pardons himself, which he will do if he pardons others?


Tom
Comment posted December 9, 2008 @ 9:37 pm

If this SOB gives a blanket pardon to the torturers, then he should forfeit Secret Service protection and be made to sweat and look over his shoulder the rest of his days.


the lion
Comment posted December 9, 2008 @ 9:44 pm

The very act of the President of the United States pardoning anybody for torture is in actuality a serious WAR CRIME.

The United States Supreme Court gave the Prisoners held at Guantanamo Bay the status as Article 3 Prisoners hence they are protected persons under the Geneva Conventions which is a Treaty that was ratified by the Senate which makes it United States law.

Schedule 3 of the Geneva Conventions (protections of prisoners) states at

Article 131

No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.

The Preceding article below states that it is a Grave breach that a Protected Prisoner is subjected to torture, article 3 Prisoners ARE protected prisoners according to the United States Supreme Court in Hamdin V Rumsfeld.

Article 130

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

Furthermore it is the Responsibility of EVERY other country that is a signatory of the Geneva Conventions to search out and capture and bring to trial any person who has committed such acts of torture

Article 129

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.

It is the responsibility of EVERY government in the World to Arrest these people and bring them to Justice wouldnt it be better for the United States to do this themselves

Lastly what would we have said if Hitler or Admiral Donitz have said days before the Second World War that he pardoned all the the Nazis who may have committed a Crime during the Second World War?

Somehow I do not think the Allies or as they were also known The United Nations would have allowed that to happen.

It should not be allowed to happen now.


Open Thread - Ice Storm Version - John Mccain | John McCain- Sharpy News
Pingback posted December 25, 2008 @ 8:50 am

[...] reader points me to this story about the possibility that George Bush may issue blanket pardons to those in his [...]


In the News — Carolyn Patty Blum Opposes Blanket Pardons
Pingback posted January 29, 2009 @ 7:55 pm

[...] Washington Independent, Dec. 8, 2008 by Daphne Eviatar http://washingtonindependent.com/21313/21313 [...]


???
Comment posted February 21, 2009 @ 10:26 am

the crimes against Muslims are less important than crimes against Christians, crimes against foreigners are less important than crimes against Americans? Do you believe those things? Think about it before you answer.


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Cerita dewasa
Comment posted November 25, 2009 @ 3:04 pm

All we need are up or down votes in both bodies — from all those Geneva-Covered Gov't Officials in Congress. Who are all, btw, currently in the status of Nuremberg defendants — who have been treating atrocities like political business as usual. So it may not just be the regime on the bus to the Hague. Aiding and abetting after-the-fact has consequences too.


Foto Cewek Bugil
Comment posted November 25, 2009 @ 3:09 pm

Would you say “Enough!” Even if you'd been to law school? Or would you still declare the pardon power to be “unlimited”? Would it take more than this to awaken an ounce of humanity or independent thought from deep within your brain?


Cerita dewasa
Comment posted November 25, 2009 @ 8:04 pm

All we need are up or down votes in both bodies — from all those Geneva-Covered Gov't Officials in Congress. Who are all, btw, currently in the status of Nuremberg defendants — who have been treating atrocities like political business as usual. So it may not just be the regime on the bus to the Hague. Aiding and abetting after-the-fact has consequences too.


Foto Cewek Bugil
Comment posted November 25, 2009 @ 8:09 pm

Would you say “Enough!” Even if you'd been to law school? Or would you still declare the pardon power to be “unlimited”? Would it take more than this to awaken an ounce of humanity or independent thought from deep within your brain?


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