Blanket Pardons

by digby

Evidently, there's talk of Bush issuing a blanket pardon to anyone involved in his torture regime before he leaves office and Salon is also reporting that there are some plans afoot in the Obama camp to initiate a broad congressional inquiry into the whole interrogation program, which would be even more amazing.

As to the pardons, there is precedent for a president to pardon whole categories of people --- Carter did it for draft resisters and George Washington did it for those involved in the Whiskey Rebellion. The article discusses some moral distinctions, but it seems clear to me that Bush could do this and there would be nothing anyone could do about it.

In terms of the possible investigations, the article says:

A common view among those involved with the talks is that any early effort to prosecute Bush administration officials would likely devolve quickly into ugly and fruitless partisan warfare. Second is that even if Obama decided he had the appetite for it, prosecutions in this arena are problematic at best: A series of memos from the Bush Justice Department approved the harsh tactics, and Congress changed the War Crimes Act in 2006, making prosecutions of individuals involved in interrogations more difficult.

Instead, a commission empowered by Congress would have the authority to compel witnesses to testify and even to grant immunity in exchange for information. Should a particularly ugly picture emerge, the option of prosecutions would still theoretically be on the table later, however unlikely.

In Obama's camp, there is a sense among some that such a commission would essentially mean letting Bush get away with crimes. "People have called for criminal investigations," one person familiar with the talks told me this summer as plans got under way. On Wednesday, a person participating in the talks confirmed that some people involved in the planning felt strongly that the commission would amount to "bullshit" and that Bush officials should be prosecuted to the full extent of the law.

But few think prosecutions are realistic, given the formidable legal hurdles and the huge policy problems competing for Obama's attention. Among them is the complicated task of closing down the military prison at Guantánamo Bay, which Obama advisors say is a priority. Some observers outside the Obama camp are also questioning how much Democrats really want exposed with regard to interrogation, since top Democrats in Congress were briefed in secret on some of the harshest tactics used by the CIA and appear to have done little, or perhaps nothing, to stop them.

A congressional commission would be great. But at the risk of sounding cynical, the odds of that happening are about as good as Sarah W. Palin becoming a Supreme Court justice. We're now heavily into let bayhgones be bayhgones mode and I'd be shocked if this congress would do it. (Besides, Joe Lieberman might hold his breath until he turns blue and they can't let that happen.)

If this isn't just a couple of insiders playing a reporter to see what might happen, it's possible it is leak designed to put the CIA and the military on notice that Obama has no intention of prosecuting them, but also throw out there that if Bush decides to do this pardon, the congress may find it impossible to resist empowering this commission --- and all hell will break loose. If this is a trial balloon of some sort, I think this is mostly about trying to keep a lid on an early, ugly partisan battle --- a blanket pardon would be like firing on Ft Sumter. They're trying to put the onus on Bush (although why they'd trust him I wouldn't know.)

It's possible, of course, that they're serious about empowering this investigation. But it's hard to see why the reasons they cite for not wanting to prosecute don't apply equally to a congressional commission. And it's not like the country really gives a shit --- the only ones who care about this are human rights activists, civil liberties cranks and constitution lovers and nobody cares about them. They'd have to do it because they really believe its necessary. I don't see that argument anywhere.

I'll be very happy to be wrong about this and if a commission on torture is formed I will be thrilled and vastly relieved. It just doesn't scan for me in this environment. The priority is obviously going to be the economy and they are are unlikely to risk their plans on something so emotional and risky. But it's something to keep our eyes on.

If Bush does the pardons all bets are off.

Update: And there is simply no doubt that Bush would invoke this to avoid cooperating. He already has.

H/t to bb