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.
