Last week, the Wall Street Journal reported that President Bush does not plan to issue sweeping pardons to those people in the government who approved the use of torture by our military and intelligence services. It is widely believed to be a statement that Bush feels they did nothing wrong, so pardoning them is unnecessary.
Bringing those people to justice would then fall upon the Obama Administration. A number of pissed off liberals seem to feel that nothing will happen, except for some sort of "truth" commission that will accomplish nothing. That may be true, but I believe that before the end of his term, Bush will pardon those people after all, for a very simple reason that is not particularly obvious now, but eventually it will dawn on even the dimmest bulb (such as W).
I believe that Bush will pardon them for this reason: if he does not, then Barack Obama might do it.
I know that sounds a little odd, but I can see a number of reasons why Barack Obama might do it, and Bush would not want him to be able to do it.
First, it isn't that oulandish an idea. Presidents have issued pardons in extraordinary situations to people who might clearly have merited severe punishment, such as when Andrew Johnson pardoned well over 100 rebels after the Civil War. If Johnson was to be believed, healing was more important than retribution. That seems to me to be what Barack Obama has been suggesting.
Second, while the granting of a pardon does not say anything about guilt or innocence, the Supreme Court has long held that accepting a pardon is an admission of guilt. Even if one person accepts the pardon then the message is sent (at least implicitly) that someone involved has admitted that what they all did was wrong.
Third, if Bush does not pardon, he would be, in effect, giving the power of the bully pulpit to Barack Obama, who could use it very effectively. If someone has not been prosecuted, a pardon would clearly need an explanation. At the least, Barack Obama would be able to articulate the conduct of the individual that was illegal, and even if the pardon was not accepted, that tacit indictment, carrying the impramatur of the United States government, would remain.
Fourth, a particular pardon could be narrowly tailored to encompass, for example, only conduct which has been publically disclosed. The intended recipient would then be faced with an even more difficult choice as to whether to accept: if he does, he's admitted guilt, and might still face prosecution once the REAL story comes out, and; if he doesn't, he still has to worry about new information, and he would be at risk for being prosecuted for everything. Pardons have always had a strategic purpose. When William Randolph suggested that the President's pardon power be limited to convictions, James Madison pointed out that a pardon could encourage conspirators to cooperate. I wonder just how deep neocon principles go, such that they would risk jail for them?
Finally, I believe that there could be something even more invidious lurking in the decisionmaking process. Bush will eventually realize that he does not want to put the fate of these people in the hands of the first black president. They do not want to be "forgiven" by a black man. Who else might he then forgive? Lester Maddox? George Wallace? [gasp] Ronald Reagan?
This is just a sampling of the possibilities that George Bush would invite should he choose not to pardon the culpable for torture. He will not take the chance that any of the above comes to pass.
Be patient; eventually, even George W. Bush will figure this out. By January 19, the pardon printer will be operating at full speed.