So why a pardon? Simple: you don't pardon people who haven't done anything wrong. The very act of pardoning Bush establishes him as someone who needed a pardon. Pardons damage the reputation of their recipients -- it's not like Nixon's pardon convinced Americans that he really just got a bad rap (even just-defeated Kentucky Governor Ernie Fletcher's spate of pardons, which he cast as protecting the targets from illegitimate prosecution, made both him and them look much worse than they were before). Meanwhile, President Obama the Democratic President looks magnanimous, moving the country forward rather than focusing on rehashing the malfeasance of the past. And of course, removing the specter of criminal prosecution from President Bush, under a variety of precedents, makes it easier to compel him to testify about the events in question, if that ever becomes necessary.
But that might have been a bit too clever. Under Burdick v. U.S., 236 U.S. 79 (1915) it is possible to refuse a pardon, precisely because pardons carry with them that taint of guilt. And the American people might see it as partisan and theatrical.
But Steve Benen suggests that ol' W might do the work for us, by pardoning, if not himself, then key members of his administration responsible for some of his "controversial" counterterrorism programs.
To which I say, "bring 'em on." Not because I don't think that many of these men and women deserve criminal inquiry. But realistically, they won't. And once the threat of criminal sanction is officially removed via pardon, it becomes possible to compel testimony on the issues in question (following from Kastigar v. United States, 406 U.S. 441 (1972)).
If we can't hold people legally accountable for torture, at the very least we can demand the truth about what they did. A truth commission about just what this administration did in the name of "protecting America" would be a dramatic departure from the precedent set by George W. Bush and his cronies of lies, obfuscation, and obstruction. And I believe that when the truth, in all its ugly glory, comes out, it will be as much of a deterrent to future abuses as a criminal trial would have been.
Are you serious? Really? I'm sorry, but after reading for months now, and still with a great deal of respect for you, I have to say that that is incredibly, INCREDIBLY naive.
ReplyDeleteWhy would pardoning them make them tell the truth? a) there are other consequences to admitting your a horrible person other than legal repercussions; b) you are essentially setting a precedent that any president in the future can do anything, as long as they lie about it constantly, thus ensuring that they'll all be pardoned in the name of "finding the truth"; c) you are assuming these people, who have obviously questionable moral judgment, will just say "let bygones be bygones" and spill the beans just because they don't have to worry about jail? it wasn't ever just about jail, it was loyalty, and reputation, and just plain arrogance and stubbornness.
Sure, NOT pardoning them would turn it into a long, slow legal battle, but that's what ALL justice is! Are you saying we should pardon all serial killers in the future, so that they'll be more willing to just tell us what they did? If a crime is worth punishing, then punish it, because this is one of those few cases where it is a genuine example and deterrent for those in the future. I honestly find your unwillingness to sit out an arduous process to see the system cleansed, quite weak to be frank. I scoff whenever someone talks about "negotiating with terrorists" and all that alarmism, but this feels to me like that: you're advocating negotiating with the terrorists. If the administration advocated, immoral, illegal, unconstitutional acts, then they should be put through the system, because that's what the system is for, and it may be a pain but life is a pain.
How is this even justice? When a poor, black man uses crack-cocaine he is practically thrown away forever, but when a rich white man does things unquestionably reprehensible, and illegal by our most fundamental legal documents, he gets away with it? What kind of message is that? I'm sure we'll all somehow feel better even if they did come forward because of pardoning (which I think is a ridiculous assumption) you are essentially putting the last nail in the coffin of the balance of powers, granting the executive branch a massive loophole to do almost anything short of nuking the nation and still get away with it (or at least giving the impression of that enough to encourage another president in the future to do the same or worse). You are leaving all this power with the assurance that people will know better now and won't elect idiots; but what guarantee do you have of that? You are dooming it to happen again, and if they react the same time that time, again, and again, and again, until finally we put our goddamn foot down and say that we won't put up with this.
So WHAT if the process is arduous? This is WAR, and the government is the enemy (and I'm not a libertarian, I'm a liberal just so you don't think that I'm against the government doing anything - but my point still stands). It IS war, and that is why the powers were balanced. If they become unbalanced, then one side wins and you gain an empire of government, with one branch occupying the others, and thus the people. Then the only assurance becomes the people themselves. The government is at war with the people, so thus the constitution divides the government to assure that the people are always stronger. What you suggest is to just lay down and let rampant dictatorial governance fade off into the hills to come and pillage another day.
That, I'm sorry to say, is the true moral weakness - when good people stand by and do nothing, because only then do dictators rule.
"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." - Thomas Jefferson
If an educated, liberal citizen is unwilling to shed someone ELSE'S sweat (because lets be realistic here, you aren't going to have to do the prosecuting, so what the hell are you worrying about), then how can anyone be willing to shed their blood? The reason any of this in the past 7 years has even happened is because of a wide-spread unwillingness to deal with even the superficial discomfort of actually corralling the government. Thus, we complain about the Democratic congress caving, but really all they are doing is representing you and everyone else, the ones who are willing to lay down their arms because it's hard to fight on, even though they know it needs to be done.
People get the government they deserve... Isn't that the saying?
The prosecution isn't going to happen. It won't just be "ardorous" -- if it were, I'd be totally with you. It'll never be filed. It's politically an impossible situation. But because a pardon removes your fifth amendment rights (you can't self-incriminate when you've already got immunity from prosecution, Kastigar), a federal commission could compel testimony from all these guys and if they don't answer hold them in contempt (aka, lock 'em up until they answer).
ReplyDeleteThe precedent that you can do these acts and skip any legal repercussions has, unfortunately, already been set. We need to squeeze at least some lemonade out of these lemons, and that means humiliating the bejeezus out of these people by making public, in excruciating detail, just what they did.
But there has to be some way that it can be achieved without just waiting for Cheney to make a trip to Britain and get hauled off for war crimes. I find it sad that we basically have to defer our justice to the EU, based on war crimes precedents that were set by ourselves.
ReplyDeleteAnd I don't see how great that lemonade can be when it comes with the knowledge that we just let them get away with it.
Also, I know what you're talking about as far as the precedent already being set, but it was never this bad. What we have here is some major grade stuff, not just one or two crimes involving perjury and obstruction.
I understand your point, but I really don't want to have to make that choice. We, as free citizens of a republic, shouldn't have to make that choice. Also I don't really think that the idea that any of that would happen is valid. If there isn't enough political will to investigate and put them on trial, then how will there be enough will to compel them to court, and if they refuse actually prosecute THAT, and if they lie under oath actually prosecute THAT. If there's no political will, then both are equally superfluous and pardoning them is only letting them sleep easier at night and making Americans look like childish jackasses to the rest of the world (we'll seem like weak willed people whose system is broken and have no ability to ensure the legitimacy of our government, and I think rightfully so). So even if the will doesn't exist to prosecute, I think pardoning is still not a good idea at all, and won't produce anything productive.
If there isn't enough political will to investigate and put them on trial, then how will there be enough will to compel them to court, and if they refuse actually prosecute THAT, and if they lie under oath actually prosecute THAT.
ReplyDeleteThere is a huge difference between
1) the political will required to say, "We think we have enough to prove beyond a reasonable doubt, to all 12 members of a jury that probably will include some Republicans who currently are convinced that no one in the Bush Administration has done anything wrong, that Cheney et al. have broken the law and should rot in jail," and
2) the political will required to say, "We're going to make these folks follow the same rules as regular citizens, who must obey subpoenas and will be punished for contempt if they disobey, and for perjury if they lie."
Item 1 seems political: oh, you're going after these guys because you couldn't beat them democratically, so now you're going to use some international law stuff against them.
Item 2, on the other hand, is making a point with which most folks agree: no one is above the law.