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Don't let Bush decide

November 27, 2008|ROSA BROOKS

Don't pardon those turkeys, Mr. President.

I'm not talking about the feathered kind that gobble and squawk -- pardon as many of those as you want.

It's those turkeys in your own administration you shouldn't pardon. The ones who were so determined to make human beings squawk that they treated the federal criminal code like one of Grandma's outmoded recipe books. Who saw nothing wrong with holding detainees in conditions worse than those prevailing at most commercial turkey farms. Who betrayed the millions of Americans who used to give thanks every year for living in a country that didn't rely on torture or secret prisons.

I'm talking about Dick Cheney, Donald Rumsfeld and all those who devised, ordered or carried out your administration's policies of "extraordinary rendition," "enhanced interrogation" and "black sites."

Some of your friends have been urging you to use your constitutional pardoning power to ensure that no one ever faces justice for crimes they may have committed in the name of the "war on terror." And it's true that the Constitution places virtually no limits on your pardon power. (Not that constitutional limits have troubled you much in the past.)

The Constitution gives you the "Power to Grant Reprieves and Pardons for Offenses against the United States," and the Supreme Court has long held that you can pardon someone -- or a group -- even before they've been charged with any crimes. After the Civil War, President Andrew Johnson pardoned Confederate soldiers (who could otherwise have been charged with treason). In 1974, President Ford pardoned Richard Nixon (who resigned before being impeached) "for all offenses against the United States which he ... has committed or may have committed." A few years later, President Carter pardoned all Vietnam draft-dodgers.

So there's no legal bar to preemptively pardoning Cheney, Rumsfeld and the scores of lower-ranking advisors, policymakers, guards, interrogators and others who took pride in adopting the tactics of the KGB for use against terrorism suspects.

Your pardon proclamation might need to be a long one -- you'd probably have to either name names or spell out the specific details of the acts you were pardoning. Or maybe you could just pardon any offenses against the United States committed pursuant to a handful of your specified and still classified executive orders. I'm sure your lawyers would find a way.

And then all of your cronies and henchmen could sleep soundly, knowing they're safe. (At least from federal prosecution. Presidential pardons won't get anyone off the hook for violations of foreign or international criminal law, so I wouldn't recommend a European vacation for Cheney -- or you.)

But using your pardon power in this way would be a huge mistake, Mr. President. Because there's a big catch: You can't issue a pardon without tacitly admitting that "offenses against the United States" have been committed. And do you really want to do that? Do you really want to admit that members of your administration -- probably acting on your instructions -- committed crimes against the United States, and follow that with removing the perpetrators of those crimes, maybe including yourself, from the criminal justice system?

Not a great legacy, Mr. President.

Pardoning acts of torture, extraordinary rendition and the like would be a hideous perversion of the pardon power. Despite the absence of textual limits on your constitutional pardon power, it's crystal clear that the framers of the Constitution never intended the power to be used by the president to immunize his underlings -- or himself -- from facing the consequences of lawbreaking that he himself authorized. If presidents could use the pardon power in this way, any president could commit crimes with impunity and order others to commit crimes, then simply pardon all those involved before any legal proceedings could begin.

And that would be the end of the rule of law and the beginning of tyranny.

Don't do it. Let justice take its course. Prosecutions of high officials are exceedingly unlikely in any case, but you shouldn't be the one who takes that option off the table. Let the Obama administration launch an investigatory commission. Let the facts come out, and then let the Justice Department decide if prosecutions are warranted.

Meanwhile, Mr. President? It is Thanksgiving, so go ahead, pardon more of our feathered friends. Pardon Martha Stewart and Roger Clemens, if you feel like it. Just don't pardon any torturers -- because if you do, you'll have proved that you're the biggest turkey of them all.

--

rbrooks@latimescolumnists.com

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