Pardons Are Forever

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ASSEMBLY
LINE: Many of Bush’s pardons will focus on crimes committed in
the name of the "war on terror"

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.

Political
storm clouds

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?

Dustin
Lewis assisted in the preparation of this piece.

August
22, 2006

Harvey
A. Silverglate [send
him mail
], co-author of The
Shadow University
, is an attorney with Boston's
Good & Cormier. This article, from the Boston
Phoenix
, is reprinted with permission.

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