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The Obama administration is navigating Scylla and Charybdis on the issue of Bush administration officials’ responsibility for the torture of alleged terrorists. On the one hand, the President needs to get things done and move the country forward on, well, everything. He desperately needs some Republican cooperation to advance his legislative agenda and therefore must maintain a conciliatory posture. On the other hand, the President must “take care that the laws be faithfully executed.”1 The Attorney General is in a particularly tight spot, as it is precisely his duty to enforce the laws of the land, including those laws and treaties that ban torture.
There’s serious tension here. And as much as the administration hopes it will go away, it’s not going away. But Jonathan Bernstein suggests a way forward:
The way out — the only way out that I can see — is to offer a full pardon to everyone involved, followed by a [truth and reconciliation] commission. The president should make a statement that is as generous as possible to the motives of the previous administration, while as harsh as possible to the specific acts at issue. [...] Obama can claim (whatever the truth actually might be) that he believes that every act was motivated by a sincere and commendable desire to protect the American people, and that whatever mistakes were made were just understandable overreaction in the heat of battle.
Pardon is preferable from the president’s perspective to a road that could involve prosecutions. It’s also necessary to get a Truth and Reconciliation Commission to work…. Part of the problem from the point of view of Republicans right now is that for them to oppose torture is to betray their fellow party members to the possibility of prosecution and prison. It really is understandable (I feel as if I’m using that word a lot here, but with good reason) that they would be reluctant to do that. Of course, that applies even more to those who were peripherally involved in illegal activities, or were somewhat aware of things that were probably illegal…right now, there is little incentive and quite a bit of danger from coming forward. Pardon, at least, reduces the danger.
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So, that’s the argument. A pardon, as generous as possible, followed by a commission that would conduct a full investigation, including whenever possible public hearings. While it’s possible that such a commission might find that torture is necessary in extreme cases, I doubt it; the more likely result would be to discredit various stories about the successes of such methods, or more to the point to publicize that the “success” stories have in most cases already been discredited. But, if there are findings in the other direction, then the commission could recommend changes in law or treaty. More likely, the commission could establish as fact what happened, and document as plainly as possible that torture and abuse are both morally and practically terrible policy. There is, however, nothing wrong with stacking the commission with people who begin with a bias against torture. After all, the United States of America is committed to oppose torture, so one would expect that a government commission would have tend to support that position.
(Emphasis added.) This strikes me as a constructive suggestion. The President’s pardon power is sweeping, and use of it in this manner would ensure that the current administration’s actions are by the book. It would preserve good will with the innocent partisans of those responsible. And it would permit us to learn fully the lessons of the recent past, and indeed to lay blame where blame should be laid, but with both eyes toward the country’s future. Always pragmatic, never vindictive.
- U.S. Const. Art. II, § 3. [↩]
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4 Responses to “Beg Your Pardon”
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While I think this would be great, I’m also pretty certain that Republicans would scream and howl about it just as loud as a more direct prosecutorial approach, and that it would be used as another excuse for them not to compromise or constructively participate on any of the other issues before our nation. But if this plays better for swing voters, sure, let’s do it. I don’t have any particular bloodlust for the people who did these things, I just want to establish firm precedent that it’s absolutely unacceptable.
How are the acts the previous administration absolutely unacceptable if you pardon them? The precedent then is, break the law, get a pardon. We can’t seem to even “pardon” people who took out deceptive loans they can’t pay back because “they knew what they were getting into.” If the previous administration hired incompetent malpracticing attorneys like Yoo and Gonzoles to tell them it was OK to commit war crimes then they too must be held accountable. No pardons.
The acts these guys committed are war crimes when any other government in the world commits them. If we pardon them because we did it when we were scared then that is the end of the United States and we deserve to fail.
I agree in principle with what you’re saying Len, but of course politics involves compromising on principles all the time. I don’t think putting Americans in prison for war crimes, committed with support from the highest reaches of government, is politically feasible. Most Americans don’t seem to believe we should hold ourselves to the same standards as we hold others. That’s unfortunate, to say the least. But taking a principled stand that turns the country against Democrats may only ensure that we lose the power to influence events at all going forward. In that sense, some pragmatism on the matter is not only preferable but morally necessarily.
That said, given how these things work, it’s probably best for us to make your argument, and then be willing to compromise if it means we can actually do something (rather than ‘negotiating with ourselves’). I’ve started thinking of this as the Ted Kennedy approach: fight like hell for what’s right out of principal, but be willing to cut the deal when half a loaf is better than none.
I’m not opposed to making a deal. But the Republicans never compromise on anything unless they are carried kicking and screaming to the deal table. Why do we give in so readily? If Obama pardoned Bush et al today you can bet the radio talkers will spend all week hammering Obama for the pardon because it implies that Bush et al did something wrong. I don’t believe that you can win against this crowd by giving in on anything first.
We are not good with our message. The Republicans litter the talk shows with whatever message they picked today and do a good job reinforcing it. WIth the war crimes issue we should do the same. Put our smart, well-spoken people out there every day explaining how Gitmo, Iraq, and the execution of the War on Terror has indeed made us less safe. People are not going to figure it out on their own, we are fighting a war against propaganda and losing because their propaganda machine is far more effective than their policies.
The Republic did not fail when Clinton was relentlessly investigated and impeached for lying about having an affair, and when many of his accusers were doing the same. Regarding my previous comment, I think the Republic can withstand the war crimes investigation of the previous administration. It will be painful, it will be ugly, we’ll be called a lot of names. But the rule of law demands it.