Waiting for Bush to leave office, that is. And, every day is another opportunity for further disasters. One big disaster that may be waiting around the corner is the possible pardon of every person involved in torture during the last eight years.
The President has a free-ranging power to pardon, and the worry is that he will make a blanket pardon for anyone in his administration that could later be charged with breaking federal anti-torture laws. Last night, constitutional scholar Jonathan Turley worried on Countdown about just this scenario. (He was on Rachel Maddow’s show on the 14th, too, covering this in more detail.) The worry is that Bush will issue a pardon to anyone involved in torturing prisoners, perhaps making it impossible to bring the culprits to justice, even including the President himself.
Can anything be done? Yes, I believe we do have a couple of options, and here they are.
First, what is this power to pardon?
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 Offences against the United States, except in Cases of Impeachment.
[Article II, Section 2, Clause 1]
This is called a plenary power, which means it is complete and absolute. It is inherent in his job, and there are no limits that come from other branches of government. There are also no limits within the Constitution. The only real limits are practical ones, ones that come from the logic of how the law might be interpreted by the other branches (specifically the Supreme Court) or the practicality of politics.
One practical limit is simply that Bush would have to get it right. For example, he might say that he’s pardoning anyone who used waterboarding to gain information in support of national security. This creates all kinds of openings to attack because, at trial, the prosecution could argue that what was done wasn’t really “waterboarding”, that it was “torture”. The practical difficulty of writing an air-tight pardon could make it impossible to defend against determined prosecution.
But, this begs the question how determined the prosecution would be. Will the Obama Administration (it’s logically up to them to pursue this) be motivated to even try to bring this group to justice? That may well depend on you and me, and how determined we are to see results.
This is why the practicality of politics is also a significant factor. Trying to pardon people in his administration might create just the kind of backlash that sweeps away the shield of a pardon.
But, this runs up against another practical consideration: Bush will never run for another office in his life. He’s already made it, done it, been there and got the presidential signing pen. It’s not like there’s another, bigger office that he aspires to. It’s not clear he even aspired to this one.
So, what should he care about politics? It would have to be an overwhelming public show of disgust and anger over the pardon. Even so, given the hardened defenses of government and industry to protests, it’s unlikely this would make any real difference.
Still, nothing would turn me as swiftly and surely away from supporting Obama as to see these evil people get off without any consequences for their crimes. And, it need not be that difficult to prevent even a pardon from happening if we act now to forestall it. I think that Congress and Obama have two options open to them to make even issuing a pardon unattractive to President Bush.
The first option, more politically difficult, is to make Bush’s impeachment an automatic consequence of issuing any pardons for members of the administration. This would have to be communicated by Congress in a believable way, perhaps by passing a resolution condemning the torture that has occurred. In doing so, Congress would show how many members are on the right side of this issue. But, frankly, I don’t see it happening. The current Congress has been especially weak, caving in to the administration on practically every issue. Asking them to stand up to Bush is like asking a wet tissue to rise up and smite him with a claymore.
If not this Congress, then what of the next one? Does the opportunity to impeach him expire with the inauguration? No, the next session of Congress could, in fact, impeach Bush, even though he has left office. The Constitution does not limit impeachment to something that happens during the term of the one impeached. Of course, we think of impeachments as the mechanism for removing an officer (once convicted), but that is not the only consequence:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
[Article I, Section 3, Clause 7]
This disqualification to hold office is the consequence that matters after Bush leaves office. Whether this means anything to him, or whether it would actually prevent him from holding any office he’d want, is another question. But it is a real consequence; and, certainly, it carries with it a distinct dishonor.
I consider impeachment a remote possibility, and not an effective punishment. Still, it might make him think twice about issuing a pardon if he knew that the immediate and sure consequence was an actual trial in the Senate, with possible disqualification to have any federal office again. It would be the equivalent of a dishonorable discharge. Bush figures he’s going to ultimately be judged by history. What would history think?!
The only consequence which would mean something, and which I think would mean a great deal, is not something we would visit on George Bush so much as something we could take away from him. That something is his protection from being prosecuted in other countries for war crimes. And, not just for him. We could refuse to protect anyone in his administration who participated or didn’t attempt to stop the torture. Just issuing a pardon would not protect any of these lesser figures from being hauled off to prison in some foreign country. The only thing that would do that would be the active protection of the federal government.
One minor technicality about the presidential pardon is that it is wholly an American affair. No pardon issued would apply to laws outside the U.S. The refusal to protect people from international laws or the laws of other countries would mean that any pardon would not be a completely effective shield against prosecution.
An unfriendly government could come to power in Iraq and demand that we turn over Bush for trial there. Do we let them take him? We don’t have to actively fight extradition.
How likely is it that President Obama would stand by while someone hauled George Bush off to Baghdad, or even The Hague, for a war crimes trial? I don’t know. I can imagine that Obama would weigh the political winds. But, if he cares about justice, then he would not lift a finger to prevent Bush from seeing it in some venue. The best place to try him is here in the U.S. To some extent, it might be in Bush’s interest not to fight it, but rather to let our court system take up the case, as a way to preempt trial abroad. If the Iraqis get him, I think they might be ready to carry out some Vladimir Putin-style justice. We’d probably just put him in prison.
A clear signal that a pardon will not be tolerated would be the surest way to put this all to rest. That should come from all our political leaders, including President-Elect Obama. To achieve that, we must put the pressure on them to stand up against the Bush Administration’s history of torture. Based on past performance, I don’t think they will do it on their own.
On what issue could there be a clearer ground? Which of our political leaders is going to come forward and say that they favor torturing prisoners? Of sending them to other countries where we know they will be tortured? Can we make them answer the question?
In any case, we are going to see the denouement here within the next two months. That’s all the time left for Bush to issue a pardon, should he decide to do so. My suspicion is that he will not. I don’t think he believes anyone has the guts to put him on trial. I don’t think he cares enough about the people who worked under him to make a pardon on their behalf. And, I think he is, very, very unfortunately right in his assessment that our politicians will never hold him to account. He’s making the calculation that we will be so distracted by the various problems he’s left us with (nay, created) that we will never muster the courage or the willpower to come after him.
He may well be misjudging that, too. He doesn’t have a good track record of making keen judgments.
One thing that might make it easier to see justice would be to line up a stellar group of candidates to run in the next Democratic primaries. The primaries are a little used way of influencing the party, and thereby the politicians that do get elected. I’d particularly like to see a primary challenge in Nancy Pelosi’s district a year from now. This is the time to get started. If you are interested in this, please add a comment to that effect. Let’s build a groundswell of support.