Unpardonable

by digby

D-Day wrote about this the other day, but I think it’s worth further discussion. There’s chatter about Bush issuing pre-emptive pardons to all those involved in the illegal interrogation and wiretapping regime of the last four years.

As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?Such a pardon would reduce the risk that a future administration might undertake a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated laws regarding torture and surveillance. Some legal analysts said Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt. But several members of the conservative legal community in Washington said in interviews that they hoped Mr. Bush would issue such pardons — whether or not anyone made a specific request for one. They said people who carried out the president’s orders should not be exposed even to the risk of an investigation and expensive legal bills.“The president should pre-empt any long-term investigations,” said Victoria Toensing, who was a Justice Department counterterrorism official in the Reagan administration. “If we don’t protect these people who are proceeding in good faith, no one will ever take chances.”

I think there are better than even odds that Bush is going to do it. After all, his father did it in 1992 and nobody seemed to hold it against anyone. Indeed, we’ve already seen the kind of arguments that the establishment is liable to make, such as this fatuous screed about Scooter Libby being a “fallen soldier” on the Iraq battlefield, (one case where the accusation of having disrespect for the troops is absolutely spot on.)

You’ll recall how usual suspects gathered around their convicted criminal friend and declared that he was a “good person” who didn’t deserve to go to jail:

“This is not a man who deserves to go to jail in any sense of the word,” said Kenneth L. Adelman, a former Defense Department official and longtime friend of Mr. Libby, who stayed at his Colorado vacation home before his trial. “Whatever he did wrong, he certainly paid,” Mr. Adelman said, referring to Mr. Libby’s resignation from his prominent position and his public humiliation. “This is a good person who served his country very well and is a decent person,” he said.

But you have to love Victoria Toensing’s explanation as to why it should be done — a woman, by the way, who believes presidents should be impeached for sexual dalliances but potential war criminals should be pardoned in advance. And why does she think this? Because if they are forced to face charges “no one will ever take chances.” We can’t have that, can we? Why the whole system of the rule of law would be compromised. Oh wait …

There is one person Bush cannot pardon. Himself. (Or can he?) If we lived in a just world, there would be an understanding that if Bush pardons these people it is guaranteed that he will personally be prosecuted for the crimes for which he pardons them. As chief executive there should be little problem proving that he is ultimately responsible for anything they did.

Of course, here on planet earth we are far likelier to see a bipartisan village consensus to let bygones be bygones and allow these people to continue their lucrative careers and set the table for the next time they slither their way back into power. (And remember, each time, they up the ante.) It wouldn’t be seemly to see these people have to do time for their crimes. After all, they are “decent” and “good” and excellent dinner companions.

Considering the realities of village life, what could we do, starting now, to make pardoning these people come at a cost that is too great even for Bush? I honestly don’t know that they have any shame and I believe they think they will be vindicated by history. Without a new administration and congress pledging to get to the bottom of these crimes, I just don’t know what’s to be done. Pardons or not, it would appear that they are going to get away with it again.

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