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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.

Originally posted to Liberal Thinking on Tue Nov 18, 2008 at 11:45 PM PST.

Poll

Do you believe George Bush will issue a pardon to try to prevent members of his administration (including possibly himself) from going to trial over torture?

38%14 votes
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11%4 votes
33%12 votes
2%1 votes

| 36 votes | Vote | Results

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Comment Preferences

  •  The Ineffectiveness Could Be a Factor (4+ / 0-)
    Recommended by:
    jlynne, eglantine, marykk, Relevant Rhino

    The other things is that because any pardon would not be effective in international law, there may not be any great incentive to issue one. But this depends on George Bush being smart. Not the smartest thing to depend on, is it?

  •  Everyone else that's still awake is off playing (3+ / 0-)
    Recommended by:
    Liberal Thinking, highacidity, jlynne

    in the troll diary, so I thought I'd drop by and read a genuine, thought-provoking one. I honestly don't know what power or influence we have to wield when it comes to Presidential pardons, but I'll make the customary calls and write the usual letters. There is little that ranks higher on my wish list than seeing this administration punished.

    Cheers,

    RR

    I've gone from god damn America to Gawd Damn, America---Bill Maher

    by Relevant Rhino on Wed Nov 19, 2008 at 12:15:13 AM PST

  •  Issuing pardons (2+ / 0-)
    Recommended by:
    marykk, limpidglass

    would invalidate his entire Administration to some degree.  They really want the whole unitary executive thing to stand as precedent.  

    What I'd like Obama to do is cut a deal with Abu Gonzales.  Give him a full pardon in exchange for testimony in the impeachment trials of Bush and Cheney.  Then force Nancy to start the impeachment process.  Task John Edwards with presenting the case to the House, if need be.  Put them on trial before the Senate.  Let Bush pardon himself, Cheney and anyone else he wants for all crimes - if he does issue pardons, at least then the recipient can be compelled to testify.  Make a full record in the Senate of all the shit, and then create a Commission to fix all the shit.  

    We wouldn't be able to imprison them, but the rest of the world might.  Even if they live happily ever after in Paraguay - at least we would know what all they did, and what we need to do to prevent it from ever happening again.  

    But I don't think Obama will do it.  

    Steny Hoyer = a slam dunk argument for term limits

    by jlynne on Wed Nov 19, 2008 at 12:25:37 AM PST

    •  Fun, Fun, Fun (1+ / 0-)
      Recommended by:
      jlynne

      That would be fun to watch.

      But Paraguay? It's landlocked. Just in terms of poetic justice, we need to find a nice island for Bush, maybe the island of Elba. He wanted a place in the history books. He could be known forever as "The Lesser Prisoner of Elba". With emphasis on "lesser".

  •  He will attempt to save Rove, Cheney, and himself (1+ / 0-)
    Recommended by:
    Liberal Thinking

    I imagine him letting everyone else fend for themselves. Issuing pardons will be a defacto admission of guilt, but because much of the current congress was complicit... they will not pursue any kind of prosecution beyond the lowest levels.

    Something Obama could and should do is allow the details related to Bush's torture and other unconstitutional activity come to the surface of its own accord (aided by some sort of independent investigation with subpoena power). He must not spearhead it himself, nor should he allow other Democrats to become associated with the attempt to prosecute Bush as that would seem too political. Instead, communities like this one should make a coordinated effort to build a movement to hold Bush and company accountable under the law.

    More from this guy at www.indepublica.com

    by humblecritic on Wed Nov 19, 2008 at 01:01:21 AM PST

    •  What About the Justice Department? (0+ / 0-)

      Shouldn't there be at least some part of the Justice Department that pursues this? That's their job.

      But I agree that one the reason we haven't seen more effort from Congress is their complicity in this. A lot of these people, including Pelosi, were basically in on it. We have to sweep them out of office if we want any kind of real justice on this.

      •  DOJ has become so politicized (0+ / 0-)

        and is in such close proximity to the president (due to the AG appointment) it risks discrediting it's own findings. Also, considering the extent to which they'd probably be investigating their own personel (many of which are career civil servants, and newly burrowed Bush loyalists) it would seem at least a little problematic. A special prosecutor is certainly in order.

        That being said, and for that reason I've never been sure why the AG is an appointed office. Wouldn't the AG be more independent and less prone to partisanship if the office were filled by election?

        Just a thought.

        More art and politics at www.indepublica.com

        by humblecritic on Thu Nov 20, 2008 at 12:54:43 AM PST

        [ Parent ]

        •  Yes (0+ / 0-)

          Like the Secretary of State is separately elected, here in California. I'm not sure that's the most important part of it, though. The real problem is that the President can be too partisan. It was not the intention of the founders to have someone who would represent one part of the country against another part.

          My thought is that no part of the government (or any other powerful group in the country) should be without oversight from an independent group. A big problem is that Congress is no longer independent from the executive or judicial branches. They have all become beholden to a small set of special interests, primarily ones driven by money (and some by ideology). This may go away as the Internet continues to evolve and more power comes directly from the people. I think it will take a real assault on the House, and then the Senate, using the primaries, to change things. That's why I'm pushing for a whole set of challengers in the next primaries.

  •  I'm sometimes at a loss (0+ / 0-)

    trying to understand the level of naivete displayed here. While almost all here are politically savvy, some of your issues are based more in emotion than intellect.

    Mr. Obama is a politician, and a very good one. There are unwritten rules that all politicians must adhere too, and to break these rules is considered political suicide. There will be no investigation of our present administration, from George to the mail room clerks, and Mr. Obama will actively prohibit any real effort is that direction, if it comes up. Theres absolutley zero chance of any foreign government or individual bringing any sort of charges against Mr. Bush or his administration.

    As I've said in a previous post, torture, or what we consider torture, has always been part of the SOP of our government, whether it be military, CIA, black ops, etc. It's just that this time, it got reported on. The only thing that will change will be that in the future, they will take greater precautions against it being made public. Mr. Obama knows this and too a certain degree he will be aware and responsible for future interrogations that require these means. You can't play the game with it off the table and thats just how it is.

    •  What game is that, that you can't play without (1+ / 0-)
      Recommended by:
      Liberal Thinking

      torturing people?  Maybe we don't want to play that game.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Wed Nov 19, 2008 at 05:06:42 AM PST

      [ Parent ]

    •  So, when Obama says we won't torture (1+ / 0-)
      Recommended by:
      Liberal Thinking

      I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture, and I’m going to make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.

      are those just meaningless words not meant to be taken seriously?

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Wed Nov 19, 2008 at 05:40:27 AM PST

      [ Parent ]

      •  I believe Mr. Obama is sincere (0+ / 0-)

        when he has said this, but he either wanted to reassure America of his good intentions, or didn't grasp the scope of operational necessities. I believe the former is closer to the truth. As president, he can direct who does what, but there is an element that operates outside of his general supervision, and he will "allow" them to do what they've always done. Gitmo will close and there will be no more torture, or rumors of torture on that level, but it will still go on, as it always has, because it is a tool in the arsenal of information gatherers.

        Physical coercion and intimidation can be the most expedient way to gather information, and the players on both side know it will happen. Like any other crime and punishment issue, the innocent will sometimes be caught up with the guilty, and we can blame the guilty for this.

        You mention that this is a game we might not want to play. Lives are at stake and the game has been brought to us. There is no choice but to participate, and we don't get to make the rules.

        •  And you're still not telling us (1+ / 0-)
          Recommended by:
          Liberal Thinking

          what that game is.

          If you're talking about the so-called "war on terror," you might be interested to read James Galbraith's new book The Predator State.  He takes the view that the "war on terror" is a scam the U.S. used to try to persuade other countries to give us the same privileged economic position that they did during the Cold War in return for the military protection we were providing them, or were supposedly providing them.  Galbraith says, though, that other countries recognized the fraudulent nature of the supposed terror threat, and so the scam did not work.

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Wed Nov 19, 2008 at 07:14:29 AM PST

          [ Parent ]

          •  Broader (1+ / 0-)
            Recommended by:
            lysias

            I don't think he's just talking about the so-called "war on terror". I think he's talking about the U.S. as an empire.

            His viewpoint is cynical and problematic in the modern world, which is fundamentally different from what we've seen in the past for many reasons. One is that we no longer can act in an open field. Globalization and overpopulation have eliminated that option. Another is that electronic means have made it virtually impossible to operate in secret. See my other comments, as well.

            Perhaps what he says would work in the historical world, but if we don't adapt to the twenty-first century we will fall quickly behind and some other country will take over as world leader.

        •  Ha! (2+ / 0-)
          Recommended by:
          lysias, JG in MD

          "didn't grasp the scope of operational necessities"

          I don't think you grasp the scope of grand-strategic necessities. There is a real battle going on between our side, which encompasses the peaceful operation of business and the rule of law, vs. rule by force and privilege, which is common in much of the world. We can't win that battle by joining them, only by integrating them into the modern core.

          This gets back to the whole issue of corruption, which is another area Obama must address. It's all part of the same cloth. Either you follow the law or you don't. If you don't, then you undermine everything you do--precisely because you can't be involved as President in all that goes on. So, you set a standard and hold people to it. Some people on our side will operate outside the law and won't get caught, but anyone who comes to his attention better be dealt with. That means that you string up anyone who doesn't obey the law, including our laws on torture and corruption.

          This is the only effective way of expanding the integrated core, which is something that our erstwhile prez never grasped. To our detriment.

    •  So, the Cynics Always Win (0+ / 0-)

      This is just linear thinking. In the past no one would be brought to justice because the "powers that be" would all join ranks to keep any real reform from happening. Political considerations will trump justice and the rule of law.

      I disagree. Obama was elected because of a fundamental change in politics. We don't have him as President because he's such a great person or because he's a gifted orator or a great political organizer, although he's all these things. We have Obama because of the Internet and the concomitant changes to how political power is exercised in this country. He is in office because the Internet has enabled direct communication between politicians and large groups of people, which allows them to communicate their message directly (bypassing the media) and receive contributions from the people (bypassing the party and other gatekeepers).

      Obama isn't necessary to our success, he just was the first to successfully exploit the new landscape. If he stumbles he can be replaced.

      What happens with torture and the pardon depends on what happens in our political community. If we make it impossible for Bush to go unpunished, he will be punished.

      I have spoken. That's just how it is.

  •  If outrageous pardons by Bush lead to a (1+ / 0-)
    Recommended by:
    Liberal Thinking

    constitutional amendment limiting the President's pardon power, that amendment could also nullify the Bush pardons.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Wed Nov 19, 2008 at 05:10:16 AM PST

    •  Full Employment for the Legal Community (0+ / 0-)

      Hear, hear! Of course that would lead to many lawsuits. Retracting his pardons would be problematic. First, is it fair to change the law so that people who have been pardoned have to stand trial? Second, even if it is, can you apply an amendment retroactively?

      I doubt the courts would go for it.

      But, in the end, I think it doesn't matter. Pardoning people would never apply to international law on the issue and so it would never put these people out of jeopardy. If their crimes were local to the U.S. then a pardon would be effective, but for international crimes like torture, it just doesn't have broad enough scope.

      •  The Constitution states limits to the amending (1+ / 0-)
        Recommended by:
        Liberal Thinking

        power, in Article V.  Those limits do not include a prohibition of amendments with retroactive effect.

        Quite a powerful legal argument was advanced against the 18th, Prohibition Amendment, to the effect that it worked a structural change in increasing federal power well beyond what the Founding Fathers had intended.  In rejecting that argument, the Supreme Court noted that that argument would mean that the 13th Amendment, prohibiting slavery, was invalid, and also more or less said that the only limits to the amending power were those stated in Article V.

        The influence of the [executive] has increased, is increasing, and ought to be diminished.

        by lysias on Wed Nov 19, 2008 at 11:08:59 AM PST

        [ Parent ]

        •  True (0+ / 0-)

          But the spirit of the law is to not change the effect of past laws. That's why there is also a clause prohibiting ex post facto laws. While this might strictly apply only to laws passed by Congress, it's still a kind of precedent.

          Of course, an amendment that invalidated a pardon would just return the situation to the status quo ante. So, in that sense, I think it has less problem than a true ex post facto law. But, if you were granted a pardon and then Congress snatched it away, you'd probably argue that's not in the spirit of the Constitution.

          And, if you were someone who had tortured a bunch of people, that would be a particularly tortured, ironic use of principles! Let's hope it never gets tested in court!

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