Beg Your Pardon, Follow-Up
Jonathan Bernstein has a good follow-up on his pardon-then-commission proposal. “The question,” says Bernstein, “is not whether Cheney (or Bush, or Yoo, or CIA operatives) deserve to be in jail,” but rather, “What remedies now will make future torture less likely?”
If Obama and Holder decide to prosecute, there’s little question of the results: Republicans of all stripes would rally around their now-persecuted friends from the Bush administration. [...] So the commission might demonstrate some of the truth, but would achieve no reconciliation at all. The deterrent factor for the future would rest on one thing alone, the ability of the Justice Department to obtain convictions and serious sentences, although such sentences would be gone, at least for policy makers once the next Republican president was sworn into office. And yet even then, the more Republicans solidify into the torture party, the more they would be likely to change the law and treaty obligations once they win the White House. In my view, a not at all unlikely result of prosecutions is withdrawal from Geneva during the next Republican administration.
Would pardons avoid this result? I can’t guarantee it, but I think it radically changes the incentives. [...]
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Basically, I think criminal sanctions on past war criminals are far less likely to prevent future war crimes than would a restoration of the American consensus against torture. I can’t guarantee that pardon plus commission would achieve that, but every bit of political instinct that I have says that prosecutions would prevent it. If one is really against torture, it seems to me that preventing future torture is far more important than punishment of the torturers — the latter should only happen if it is a means to an end, not for revenge, and not even for justice. The current best path toward that end is a generous pardon, as hard as that might be to swallow for opponents of torture. Separate the acts from the actors, and the chances of preventing future acts are much, much, better.
Read the whole piece.
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