Whether Bush Can Grant His Administration Pre-emptive Pardons on Torture, a Dicey Area of the Law
By Daphne Eviatar
December 8 2008
In his Nov. 16 interview on CBS’s “60 minutes,” President-elect Barack Obama reiterated his pledge to shut down Guantanamo Bay and end U.S.-sponsored torture. Both actions would be “part and parcel of an effort to regain America’s moral stature in the world,” he said.
Obama’s advisers are similarly encouraging him to look to the future and avoid the appearance of seeking vengeance for past practices. But many legal experts insist it’s as important not to let those responsible for diminishing America’s moral stature get away scot-free.
“When we speak about accountability, we’re not talking about vengeance,” lawyer and writer Scott Horton told at a packed forum on torture at New York University School of Law last week. “We’re really talking about the future.” President George W. Bush “has set a precedent that we cannot let stand.”
Rep. Jerrold Nadler (D-N.Y.), who also attended the forum, added: “Accountability is one of the most important questions before the country. It’s critical to preventing a recurrence of the lawbreaking that clearly has been done [by this administration].”
Liberal lawyers and civil rights advocates have been calling for prosecutions, even impeachment, of Bush officials tied to torture for years. Elizabeth Holtzman, a former Democratic congresswoman, published “The Impeachment of George W. Bush” in 2006. Michael Ratner, president of the Center for Constitutional Rights, published his book, “The Trial of Donald Rumsfeld: A Prosecution by Book,” in September. Others have published volumes of evidence implicating Bush officials in potentially criminal conduct . Among the most influential are Jane Mayer’s “The Dark Side,” Phillipe Sands’ “Torture Team” and “The Torture Papers,” a collection of administration documents on detainee abuses edited by Karen Greenberg, executive director of the Center on Law and Security at NYU, and Joshua Dratel, a prominent defense attorney who represents detainees at Guantanamo Bay.
But as the administration nears its end, the debate over what Obama should do about officials who authorized torture, humiliation or systematic abuse of detainees as part of the “war on terror” has become more urgent. (The NYU forum attracted so much interest that hundreds of vociferous supporters of prosecution were denied entry into the auditorium because of fire-code restrictions.)
Even as the pressure on Obama to take action grows, some prominent legal experts are urging restraint.
In a Nov. 26 Op-Ed in the Washington Post, Harvard law professor Jack Goldsmith, director of the Office of Legal Counsel in the Justice Dept. from 2003-2004, urged the incoming administration to let bygones be bygones. The decisions to use waterboarding or other forms of torture on terrorist suspects should not be prosecuted as criminal actions, he argued. Instead, they were wartime policy decisions that shouldn’t be second-guessed by lawyers. “[T]he greater danger now is that lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment,” he wrote.
But what if President Bush pardoned himself and all other officials who authorized abusive interrogations of prisoners? Would that render the torture-accountability debate moot?
In August, Stuart Taylor Jr., a Brookings Institute fellow and columnist for Newsweek and the National Journal, argued that the president should issue a blanket pardon — and leave it to a non-prosecutorial truth commission to set the record straight for posterity.
Atty. Gen Michael Mukasey, however, has insisted repeatedly that neither investigations nor pardons are needed, because everyone in the administration was acting on the advice of Justice Dept. lawyers — and thus did nothing wrong.
As the debate over accountability heats up, the possibility of Bush issuing a blanket pardon increases — and that outrages lawyers and legislators who would see such a move as a flagrant abuse of executive power.
In November, Nadler, the congressman, introduced a House resolution urging the president not to pardon officials who authorized torture and potential lawbreaking. Since then, Democrats.com has been circulating a petition on the Internet to collect signatures of those who support the resolution. So far, almost 50,000 have signed it.
But legal experts say that neither the resolution nor the petition would have any legal effect on the matter.
“Congress can’t control the pardon power,” said New York University law professor David Golove, an expert on executive power. “For practical purposes, there are no clear limits.”
The breadth of the president’s pardon power has been challenged before, particularly after President Abraham Lincoln pardoned former confederate officials who swore an oath of loyalty to the Union. But in Ex Parte Garland, the Supreme Court spelled out just how far-reaching the president’s power is.
The pardon power “clothe[s] the president with the power to pardon all offenses, and thereby to wash away the legal stain and extinguish all the legal consequences of treason — all penalties, all punishments, and everything in the nature of punishment,” the court ruled.
Accordingly, if Bush pardoned administration officials accused of authorizing torture — say, Rumsfeld, Vice President Dick Cheney, former Cheney chief of staff Richard Addington or former Justice Dept. lawyer John Yoo, to name a few frequently mentioned possibilities — legal experts say the pardons would be extremely difficult to challenge in court. The fact that none of these men have been convicted of anything makes no difference.
The Confederates pardoned by Lincoln hadn’t been indicted or tried, either. Similarly, President Jimmy Carter preemptively pardoned draft evaders during the Vietnam War when he took office in 1976. Even the Watergate-plagued Richard Nixon, pardoned by Gerald Ford in 1974, was never convicted of a crime.
Could Bush pardon himself?
That’s legally dicey. Although it’s never been done before, nothing in the Constitution specifically prevents it.
“I do not believe that a president can issue a pardon of himself,” said Holtzman, a panelist at the NYU forum. “I believe that would be an abuse of the pardon power.”
Some say that pardoning administration officials whose actions you signed off on would also be an abuse of power. Allowing a president to do that may set a precedent that’s even more destructive, say some legal experts, because it would remove any incentive for future presidents to follow the law.
“One of the most effective potential weapons to assure that a runaway executive does not violate the rule of law is that the people who carry out the president’s wishes are themselves subject to legal jeopardy,” said Golove.
In that regard, the U.S. presidency is similar to the British system. Although by law the English king could do no wrong, his ministers could, explained Golove. “So the way you controlled the crown was by threatening to bring criminal prosecutions against those who carry out his orders.”
That’s been the case in the United States as well. “So to allow the president to pardon those people is to remove to a considerable extent the incentive for the executive branch to follow the law,” contended Golove. “I see this as a terrible problem.”
Carolyn Patty Blum, emeritus professor at UC Berkeley’s Boalt Hall School of Law, agrees. “Bush doesn’t really need to pardon himself if he preemptively pardons others, because then no one has an incentive to talk about his role.”
Some commentators, such as Taylor, have argued that a blanket pardon would still allow for the appointment of a truth commission along the lines of South Africa’s Truth and Reconciliation Commission. It could be easier for such a body to learn what really happened because participants wouldn’t face jail for participating.
But Blum, a consultant to the International Center for Transitional Justice, which specializes in accountability for human-rights abuses, disagrees. “[Our] institutional experience working with truth commissions around the world is that the opposite happens. Once people feel they are already protected, they don’t have any incentive to come forward.”
In South Africa, she noted, people were pardoned only after they testified truthfully about their crimes.
Pardons for administration officials would not necessarily close down the inquiry, however. A pardon wouldn’t stop victims of torture from suing U.S. officials, for example, and revealing the truth — although federal government officials can claim all sorts of immunities that would make such cases difficult to pursue in the United States. And a pardon would not prevent another country, or an international tribunal, from investigating and prosecuting war crimes and other violations of international law.
“Hitler could not pardon himself and the Nazi general staff for war crimes committed during World War II,” said Golove. “Even if he could have pardoned them under German law, that wouldn’t have had any effect at the Nuremberg Tribunal.”
As Ratner of the Center for Constitutional Rights noted at the NYU forum, “You cannot pardon war crimes and torture. Maybe here, but they’re not going to walk so freely in Europe.”
The center and prosecutors abroad have already sought to bring administration officials to trial in Germany, France, Italy and Spain, among other countries. Although charges probably wouldn’t land any U.S. officials behind bars, it could at least put a crimp in their travel plans — and prompt investigations that might further tarnish the Bush legacy.