ACLU proposes a preemptive pardon to the Bush-Cheney regime for illegal torture

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I have long made my position clear on the war crimes of the Bush-Cheney regime. The architects of illegal torture deserve to be prosecuted under the Nuremberg Principles for their war crimes, at least at a minimum, prosecuted under U.S. law and international conventions prohibiting torture.

America needs to demonstrate to the world that we are capable of holding our own accountable for their heinous crimes to restore our honor and moral standing in the world.

Anthony Romero, executive director of the American Civil Liberties Union (ACLU), proposes what I consider to be an unacceptable half-measure in a  New York Times op-ed today. Pardon Bush and Those Who Tortured:

BEFORE President George W. Bush left office, a group of conservatives lobbied the White House to grant pardons to the officials who had planned and authorized the United States torture program. My organization, the American Civil Liberties Union, found the proposal repugnant. Along with eight other human rights groups, we sent a letter to Mr. Bush arguing that granting pardons would undermine the rule of law and prevent Americans from learning what had been done in their names.

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But with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

That officials at the highest levels of government authorized and ordered torture is not in dispute. Mr. Bush issued a secret order authorizing the C.I.A. to build secret prisons overseas. The C.I.A. requested authority to torture prisoners in those “black sites.” The National Security Council approved the request. And the Justice Department drafted memos providing the brutal program with a veneer of legality.

My organization and others have spent 13 years arguing for accountability for these crimes. We have called for the appointment of a special prosecutor or the establishment of a truth and reconciliation commission, or both. But those calls have gone unheeded. And now, many of those responsible for torture can’t be prosecuted because the statute of limitations has run out.

There is no statute of limitations for war crimes. Prosecute them under the Nuremberg Principles. These war criminals should live under the threat of prosecution for the rest of their natural lives.

To his credit, Mr. Obama disavowed torture immediately after he took office, and his Justice Department withdrew the memorandums that had provided the foundation for the torture program. In a speech last year at the National Defense University, Mr. Obama said that “we compromised our basic values — by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law.”

But neither he nor the Justice Department has shown any appetite for holding anyone accountable. When the department did conduct an investigation, it appeared not to have interviewed any of the prisoners who were tortured. And it repeatedly abused the “state secrets” privilege to derail cases brought by prisoners — including Americans who were tortured as “enemy combatants.”

What is the difference between this — essentially granting tacit pardons for torture — and formally pardoning those who authorized torture? In both cases, those who tortured avoid accountability.

But with the tacit pardons, the president leaves open the very real possibility that officials will resurrect the torture policies in the future. Indeed, many former C.I.A. and other government officials continue to insist that waterboarding and other forms of torture were lawful.

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The Obama administration could still take measures to hold accountable the officials who authorized torture. Some of the statutes of limitations have run out, but not all of them have. And the release of the Senate’s report provides a blueprint for criminal investigations, even if that’s not what the intelligence committee set out to do.

But let’s face it: Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.

Mr. Obama could pardon George J. Tenet for authorizing torture at the C.I.A.’s black sites overseas, Donald H. Rumsfeld for authorizing the use of torture at the Guantánamo Bay prison, David S. Addington, John C. Yoo and Jay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all.

While the idea of a pre-emptive pardon may seem novel, there is precedent. Presidents Abraham Lincoln and Andrew Johnson pardoned Confederate soldiers as a step toward unity and reconstruction after the Civil War. Gerald R. Ford pardoned Richard M. Nixon for the crimes of Watergate. Jimmy Carter pardoned Vietnam War draft resisters.

The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware. Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.

If you think Tea-Publicans are upset about President Obama’s executive orders on immigration, can you imagine the shit-storm that will occur if Obama preemptively issues pardons to the Bush-Cheney regime for illegal torture, unilaterally declaring them war criminals without a trial before a war crimes tribunal?

Give me my Nuremberg-style war crimes tribunal, Mr. President. There are many lawyers willing to serve as staff counsel to the prosecution to see that justice is finally served. It would be an honor and a privilege to serve on this tribunal, and to restore the rule of law and America’s honor and moral standing in the world.

5 COMMENTS

  1. Question: would criminal liability for war crimes be affected by a presidential pardon? In other words, is a war crimes tribunal under the jurisdiction of US law? I don’t know anything about this area. But if the answer is no, then the pardon could make the point Romero seeks and the option to prosecute for war crimes would still be open. But as a practical matter, it may kill off any meaningful support for prosecution.

    I like the ACLU’s idea. Brand them as criminals. If the likelihood of prosecution is miniscule, then it could be the best that we will get. It would be a very bold statement that will hang over the SOBs for all time. Don’t let perfect be the enemy of good.

    • War crimes tribunals are conducted under jurisdiction of international conventions of war. In a 2008 legal article by Anees Ahmed and Merryn Quayle, “Can Genocide, Crimes Against Humanity and War Crimes be Pardoned or Amnestied?”, http://sas-space.sas.ac.uk/2563/1/Amicus79_Ahmed%26Quayle.pdf, the authors argued “that neither pardon nor amnesty can absolve serious violations of international criminal law (see Leila Nadya Sadat, “Exile, Amnesty and International Law”, 81 Notre Dame Law Review 955 (2006) (“Sadat”), p 957). There is a “crystallising international norm” against impunity which denies the legal possibility of pardon or amnesty for serious international crimes (Kallon v Kamara, case no SCSL-2004-15-AR72(E), SCSL-2004-16-AR72(E), decision on challenge to jurisdiction: Lome Accord Amnesty, March 13, 2004 (“Kallon decision”), para 82). Due to the grave nature of these crimes, and their jus cogens status in international law as fundamental principles from which no derogation is permitted, an amnesty or pardon purporting to immunize perpetrators of such crimes cannot be upheld under international law, and should not bind international or domestic courts trying offenses of this nature.”

      The practical effect of what Mr. Romero proposes is not a pardon, which occurs after a conviction, but rather amnesty from prosecution in U.S. courts (the Nixon “pardon” is a misnomer). Which is why I find this proposal unacceptable. The U.S. cannot say to the world “torture is a crime against humanity and is forbidden, and violators will be prosecuted — unless, of course, it is done by Americans.” There are no exceptions. International conventions pertaining to torture require the U.S. to prosecute, it is not optional. There are no consequences to the perpetrators, no one is held accountable. President Obama’s decision not to prosecute the war crimes of his predecessors is a heavily freighted political decision, not a legally justifiable decision. His fears of the political warfare to be unleashed by the right-wing in support of the Bush-Cheney regime are well taken, but politics is no excuse to ignore the obligation under international conventions of war to prosecute. The U.S. has been critical of other nations for doing this; we used to hold ourselves to a higher moral standard.

      • Is there anyone out there on the right wing who would defend the Bush-Cheney regime regarding torture any longer? Support for torture isn’t nearly as high as it was a few years back.

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