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.
Beg Your Pardon
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.
[...]
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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