One tantalizing part of Keith Olbermann's recent diary on Obama/FISA was a quick snippet about the possibility of President Bush offering pardons for criminal prosecution of the telecoms that participated in the warrantless spying program.
Olbermann's argument depended heavily on the Obama administration having the option to investigate, and prosecute, potential criminal activity. A Presidential pardon would remove that option. When combined with the immunity from civil suits offered by the current FISA bill before the Senate, it would remove any hope of plumbing the depths of the criminal activity of those who participated in the warrantless spying program.
His comment on the subject? A reference to a then-upcoming article by legal analyst John Dean at the site FindLaw.com.
And if you ask, Senator, about the President responding to all this by belching out a series of pardons or a blanket pardon to those who broke the law on his behalf, Dean has you covered here, too.
Let's see how covered we are, shall we?
I strongly recommend reading the entire article, Barack Obama and the Foreign Intelligence Surveillance Act Amendments: In Pledging to Work to Remove Retroactive Immunity for FISA Violations, What Kind of Action Is Obama Contemplating?, for anyone interested in the subject.
My interpretation of the article is that it provides 'cover' for Obama, and proposes an excuse for his current promised vote in favor of the FISA bill including telecom immunity, by explaining to us that the option of criminal prosecution would still be available. So if Dean concedes a point to those of us who disagree with him, I would consider that as settled fact for the purposes of this discussion.
Case in point, the ever-present question of whether President Bush can actually issue pardons for unspecified and uninvestigated previous criminal acts. Debated repeatedly on DKos, here is Dean's view:
This will provide President Bush an opportunity to immunize those who broke the law at his request from criminal prosecutions, which he can do as long as he is President with his power to grant pardons.
So yes, President Bush does have the option to wipe the slate clean, as far as criminal prosecution goes. Since we all agree that any civil liability would be immunized with the signing of the current FISA bill, the prospect of a blanket pardon would render moot any argument about the potential of criminal prosecution somehow 'validating' Obama's position.
And so we arrive at the meat of Dean's commentary, and Olbermann's Obama defense.. what will stop President Bush from issuing a pardon. Mr. Dean?
For Bush to issue a blanket pardon in this situation would be unprecedented, and it would offer Bush a chance at historical ignominy far exceeding what he already faces, and thus potentially become a powerful issue for the Democrats to campaign on during this 2008 election year.
Oh my. If we enumerate those arguments, they would be 1) it would be unprecedented, 2) lower President Bush in the eyes of history, and 3) become a campaign issue in 2008. That's it. Those three points are all that prop up the Olbermann position.
- It would be unprecedented.
To think that he would refrain from performing an act that benefited his administration, protected his corporate friends, promoted Presidential power at the expense of the rule of law, and guaranteed that the criminal activity of all involved would never be revealed.. because it would be unprecedented.. boggles the mind. Although the issuance of blanket pardons for expansive criminal activity may never have occurred in our history, I think we have exactly the sort of President willing to take on that challenge. Don't you?
- It would lower President Bush in the eyes of history.
Well, beyond the fact that it is impossible to sink lower than last place, he has repeatedly said that history will vindicate him. There is no reason to believe that he considers current popular opinion as an important factor in making decisions.
- It would become a campaign issue in 2008.
With the new FISA civil immunity signed and delivered with the support of Sen. Obama, all current civil proceedings would cease. Despite the ruling on acceptability of civil FISA suits, and the allowance of evidentiary discovery, we would not learn anything new that might become a campaign issue in time for November. (It is not Dean's fault that he concluded that the civil suits would likely not be investigated "because they involved national security matters that no administration would disclose.", as Chief Judge Walker had not yet revealed his ruling on the matter.) But Dean's own construct of "President Obama" initiating criminal investigations could not begin until there was, in fact, a "President Obama".
So why would President Bush be forced to sign a pardon now? He certainly controls the AGs office, and nothing is going to happen on his watch. So it wouldn't make sense for Bush to allow this to become a campaign issue by grabbing his pardon pen early. Mid to late January, 2009 sounds about right, don't you think?
That's it. That's all we have to be assured that immunizing civil liability is inconsequential, and that we should trust Obama in support of it. Is this really what Keith Olbermann was promising?