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Pardons are forever

To get his friends and allies out of the mess he created, George W. Bush is going to have to issue a slew of pardons
August 22, 2006 9:45:14 AM

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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.


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COMMENTS

Why do people keep reffering to G.W. Bush as a "War Time President"? Bush is not a war time President. Congress has to declare war. Congress did not declare war so Bush can not be a war time President no matter how many times he and the Bush/Republicans say he is. That's like saying Lyndon Johnson was a war time President for his War on Poverty or Reagan with his War on Drugs. I can see how the average person might be conned into believing these Bush/Republicans lies but not journalists or commentators. The fact that Bush is NOT a war time president puts his and all of those who followed his illegal orders and procedures in their proper light of being criminals who have engaged in crimes against humanity, torture, murder, violations of the Geneva Conventions (which the United States played a major part in formulating and signing) as well as violations of U.S. laws regarding the above crimes. If you put this in the correct context it is obvious that the Bush/Republicans must be tried, convicted and punished for their crimes.

POSTED BY davr AT 08/21/06 5:39 AM
Thank you for your article.

POSTED BY davr AT 08/21/06 5:47 AM
Do presidential pardons cover mass murder and war crimes as defined by the UN and the International War Crimes Tribunal of Nuremberg?

POSTED BY johnmccarthy AT 08/22/06 11:21 AM
It is possible that such pardons could be voided as corrupt and self-serving, though the question is legally unresolved, as I understand it. But the important point is that President Bush cannot pardon himself. Even if he were to let all his partners in crime off the hook with a slew of pardons, a Democratic Congress or a Justice Department under a Democratic administration still could go after Bush for war crimes or any other offense he may be guilty of. After all, those who had been pardoned could be forced to testify about the criminal actions of the Bush administration. They would have no Fifth Amendment protection against self-incrimination because the pardons would render them exempt from prosecution. If they tell the truth, Bush could go to prison. But if they don't tell the truth those who received these pardons could go to prison for perjury with no Republican president to pardon them. It is possible, then, that even if Bush does crank up the pardon machine he still can be held acountable for his many and various felonies. Maybe justice will be served, but it all depends on the Democrats returning to power and having the will to stand up for the rule of law and the Constitution the current administration has such contempt for.

POSTED BY glennli AT 08/23/06 6:55 AM
My questiong is, can an impeached president grant pardons? The crimes committed by this administration are legion and most of them (president, vice-president, attorney general, secretary of defense and more) belong in jail , not in office.

POSTED BY bansidh AT 08/23/06 1:03 PM
The lawyers on the progressive side should be preparing arguments that Bush can't pardon anyone whose testimony could help impeach and convict George Bush himself. The only limitation on presidential pardons is "in cases of impeachment" (U.S. Constitution, Article 2, Section 2). //www.law.cornell.edu/constitution/constitution.articleii.html If a president can pardon people whose testimony could help him get impeached and/or convicted, this exception is meaningless. Carolyn Kay MakeThemAccountable.com

POSTED BY Caro AT 08/23/06 3:02 PM
The 'pardons' have already been started. A move to relieve Ken Lay from past verdicts was placed in motion. Now that he is deceased the verdict is removable, I suppose. So if Ken Lay should ever show up again tthere would be nothing on the books about him. So he goes free. Thanks to whoever donated their body to be cremated in his absence.

POSTED BY Cole AT 08/23/06 10:00 PM
How many times are we going to defeat Iraq. We beat them up in the Gulf war 1 and 2. We starved them to death during the Clinton years plus we bomb the hell out of them. What the hecks is left! Civilians! Is Bush going to beat Iraq up until they accept our hospitality! Unless Iraq is Pro/Bush they are not going to survive. Iran was a democracy until we overthrew them. I guess when Iran demanded a fair shake from its oil from the British, we the people decided they were to stupid to govern themselves. Bush is not going to leave Iraq until he gets his hands on all that oil!

POSTED BY matt hood AT 01/17/07 6:56 PM

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