Pardons are forever

To get his friends and allies out of the mess he created, George W. Bush is going to have to issue a slew of pardons
By HARVEY SILVERGLATE
The Phoenix
Aug. 20, 2006

Prediction: Before leaving office, President Bush will issue a shockingly large number of presidential pardons to operatives who, with the administration’s blessing, ventured far outside the law to wage Bush’s “war on terror.” Bush may even owe some of his underlings use of the pardon pen, since they relied in good faith on radical legal opinions crafted by White House lawyers to justify an “anything goes” response to enemies real and imagined.

Pardons will be the only effective device by which Bush can give absolute protection to his underlings. Otherwise they may face prosecution under a new administration. Attorney General Alberto Gonzales’s efforts to convince Congress to enact legislation that would protect administration, intelligence, and military operatives from prosecution for illegal acts committed in the war on terror may fail to gain approval. And even if Gonzales convinces this highly partisan Republican-controlled Congress, a future Congress could repeal Gonzales’s protective statute. A presidential pardon, on the other hand, is final.

The Bushies’ concern grows out of recent developments. Congress, under the leadership of Republican senators John McCain, of Arizona, and Arlen Specter, of Pennsylvania, has expressed unease over the administration’s aggressive claims that a “war-time president” may override legal restrictions in order to protect the nation from its enemies, particularly in the areas of torture and citizen privacy. Even more threatening to the administration have been rumblings about war crimes from the current Congressional minority. And then there’s been a series of Supreme Court decisions explicitly rejecting some of the president’s more grandiose claims to unfettered executive power.

Interestingly, the most graphic indication of the danger presidentially empowered lawbreakers may face comes not from Washington but from Italy, where warrants are outstanding for 26 Americans, most believed to be CIA operatives. On July 6, the Los Angeles Times reported that among the 26, all of whom are allegedly involved in a kidnapping scandal, are the former CIA station chief in Rome and an Air Force commander. Their identities were recently disclosed after authorities arrested a top Italian spymaster. While none of the Americans, reported the Los Angeles Times’ Tracy Wilkinson, are currently under arrest in Italy, it’s a safe bet that none will be sightseeing at the Coliseum anytime soon.

At the center of this Milanese scandal is the February 2003 kidnapping of Egyptian Muslim cleric and suspected terrorist recruiter Abu Omar, which took place in Italy. The alleged CIA plot was carried out during the administration of then–prime minister Silvio Berlusconi, who claims to have been unaware of the secret operation but whose government, it appears, knew of and aided it. In May the Italian electorate voted out Berlusconi and installed a center-left coalition. Prime Minister Romano Prodi seems to be lending previously absent support to Italian prosecutors.

It’s enough to make Team Bush’s higher-ups, along with its shadowy operatives, shudder. The Italian warrants demonstrate how a voter-mandated changing-of-the-guard can lead to corrective prosecutions.

Beyond the limits of the law
The legal basis for Bush’s anti-terrorist program was hatched by David Addington, chief of staff and long-time legal adviser to Vice-President Dick Cheney, and John Yoo, currently a Berkeley Law School professor, shortly after the World Trade Center and Pentagon attacks. They were among the chief architects of such executive-strengthening legal constructs as the “unitary executive” theory and presidential “signing statements” that asserted the president could ignore those statutes he did not approve of but was unwilling to put through the political strainer of a veto. The plan attempted to lend legal cover to CIA, NSA, FBI, and military officials and operatives who became involved in a clandestine and almost certainly extra-legal presidential response to the Al Qaeda attacks. Aspects of the response likely (and reasonably) would have passed legal muster as temporary measures in the frantic and frightening weeks following September 11. But years later Addington and Yoo’s legal theories continued to undergird the anti-terror program without any administration effort to enlist the approval, or often the knowledge, of its co-equal branches of government, as required by the Constitution.

The “unitary executive” theory developed by Addington, Yoo, and their cohorts holds that, despite the fact that the Constitution, as any school kid knows, demarcates a system of checks and balances among the executive, legislative, and judicial branches, the president may exercise virtually unfettered authority to defend the nation. Although overlaid with fancy faux-scholarly position papers, the theory amounts to the risible notion that, because the president is named by the Constitution as “Commander-in-Chief” of the armed forces, he has the power to act alone on any matter implicating “national security,” broadly construed. But it just ain’t so.

In fact, an overwhelming number of legal experts and commentators — “Freedom Watch” among them — have rejected the president’s power grab. And the administration has also navigated some choppy internal-review waters along the way. Administration lawyers often clashed with professional military lawyers and officers who feared danger to discipline and morale — not to mention the correspondingly grave threat of unlawful treatment of American captives — if long-established, laboriously constructed international war conventions were cast aside. Jane Mayer, for example, wrote a startling February 27 New Yorker account of then–general counsel of the Navy Alberto J. Mora’s heroic efforts to undermine the administration’s encouragement of torture of prisoners, which was advanced in the administration’s infamous “torture memos.” The military professionals, it seems, were far more concerned about the White House’s reckless shredding of the laws of war than were the president’s men — many of whom had avoided military service when younger and did not appreciate the need to retain military discipline. Any future legal showdown could ensnare more administration higher-ups than military officers.

Gradually, attempts to insulate administration operatives from laws prohibiting White House–authorized conduct have come undone. In June 2004, the Supreme Court ruled in Rasul v. Bush that prisoners at Guantánamo had to be allowed access to lawyers and to the courts, as well as to some hearing process to determine whether they were indeed “enemy combatants” who could be held, on order of the president, for the war on terror’s duration. As Justice Sandra Day O’Connor famously wrote, in words that surely gave some operatives reason for concern: “a state of war is not a blank check for the President.”

Other developments have further bedeviled administration strategists. After Arizona senator John McCain prevailed in getting Congress to enact, by overwhelming bipartisan margins, a law that bans cruel, inhumane, and degrading treatment of foreign arrestees and insists that interrogation techniques follow traditional Army Field Manual formulations, Bush felt compelled to sign the legislation. Yet Bush also issued a “presidential signing statement,” which asserted the power to ignore any provisions of the new law that he thought encroached on his role as commander in chief. Later, Senate Judiciary Committee hearings, chaired by Pennsylvania Republican Arlen Specter, questioned the legality of presidentially ordered National Security Agency eavesdropping.

This past June, the Supreme Court made it crystal clear that the emperor was without legal clothes. In Hamdan v. Rumsfeld, the Court ruled not only that presidentially decreed military commissions to try captives were unlawful, but also — and this is a huge also — that the Geneva Conventions protect such prisoners. This had frightening implications for administration operatives and higher-ups. It meant that a decade-old criminal statute, the War Crimes Act of 1996, which authorizes American courts to prosecute violations of the Geneva Conventions, could now be applied to them. The highest court in the land thus supplied the legal basis for future prosecutions of American personnel involved in mistreatment of prisoners at Guantánamo and elsewhere, giving legal teeth to the concerns raised by McCain, Specter, and many others in Congress. Suddenly, the Italian arrest warrants foreshadowed likely developments at home.

Hamdan caused Attorney General Gonzales to jump into action: he is now seeking protective legislation — through amendments to the War Crimes Act — that would shield US personnel who dealt too harshly with war-on-terror prisoners, as a result of administration lawyers’ advice and orders from the commander in chief. The administration has good reason to worry. According to a tally kept by Human Rights Watch and reported by R. Jeffrey Smith in the Washington Post, “hundreds of service members deployed to Iraq have been accused by the Army of mistreating detainees, and at least 35 detainees have died in military or CIA custody.” Of even greater concern is Common Article Three of the Geneva Conventions, which defines war crimes to include “outrages upon personal dignity, in particular, humiliating and degrading treatment,” which is significantly broader than the administration’s definition of torture.

Recent history suggests that a riot of pardons is on the way, and it could easily reach the cabinet level. Recall the indictment of President Ronald Reagan’s defense secretary, Caspar W. Weinberger, for alleged perjury during congressional investigations into the Iran-Contra scandal in 1987. The current president’s father, George H. W. Bush, pardoned Weinberger and five others during the final days of his administration in 1992, on the not-implausible theory that the prosecutions sought to punish policy differences rather than real crimes.

Of course, torture and massive privacy violations seem more akin to real crimes than do the policy differences Bush the elder invoked to justify his Iran-Contra pardons. It is therefore unlikely that a member of the administration or a lower-echelon operative could credibly defend himself by claiming he believed in good faith that the president possessed the “inherent” authority to order torture. This absence of a “just following orders” defense, then, offers all the more reason to think that the son will emulate the father and grant a slew of pardons during his final weeks in office. After all, even if Gonzales gets his War Crimes Act amendments, the chilling lesson from Italy still applies: a new government could always reverse it. So why would the “decider” in chief — who’s never met a presidential prerogative he didn’t like — turn away from the ironclad protection offered by pardons? Count on it: he won’t. After all, a pardon, like a diamond, is forever.

Recent developments suggest how a future Democratic-controlled government is likely to act. If the Democrats regain control of Congress in the upcoming midterm elections, various committees will surely issue a flurry of subpoenas. Michigan Democrat John Conyers Jr., who would be the new chair of the House Judiciary Committee, already wrote in a May 18 Washington Post op-ed: “We need to know the extent to which high-ranking officials approved the use of torture and other cruel and inhumane treatment inflicted upon detainees.”

Furthermore, if a Democrat is elected president in 2008, control of the prosecutorial arm of the government would likely pass into hands hostile to lawbreakers under the preceding administration. Even the election of a Republican president would not assure a free pass. After all, some Republicans, including reputed presidential front-runner John McCain, have urged taking a hard line against torture, and Senate Judiciary Committee chairman Arlen Specter has questioned executive-authorized NSA eavesdropping.

Law-breaking administration operatives and those who transmitted presidential orders to them could face real heat from any number of angles. And as my son noted when I bounced my thoughts off him, if Bush gives medals to people who screw up, why not pardons?

Harvey Silverglate, a criminal and civil-liberties lawyer, is a long-time Freedom Watch contributor. Dustin Lewis assisted in the preparation of this piece.