Posted on 11/27/2008 12:02:17 AM PST by 2ndDivisionVet
One of the country's best known conservative legal scholars, Steven G. Calabresi, on Wednesday suggested "blanket pardons" for "all officials involved in making decisions bearing on the war on terror."
Calabresi's proposal, made in an e-mail posted on Politico's Arena forum, was roundly denounced by many other commentators in the forum, providing a small taste of the reaction should President George W. Bush actually issue such a pardon.
The president's pardon powers are considered absolute. Blanket pardons — covering groups of unnamed individuals — historically have been rare but are not unprecedented.
President Jimmy Carter pardoned Vietnam-era draft evaders, calling it an amnesty. Presidents Abraham Lincoln and Andrew Johnson pardoned former Confederate soldiers. And President Grover Cleveland pardoned Mormons who were practicing polygamy.
Calabresi, in his Arena comments, said he did not expect the Bush administration to issue such a pardon, nor has the administration signaled any intention of doing so. Neither has the Obama transition team indicated any particular plan to pursue charges against officials involved in the Bush administration's war on terror. But the topic increasingly has been raised in political and legal blogs and in op-eds as Bush prepares to leave office.
"I do not expect the Bush administration to do this, but I would strongly support a blanket pardon for all officials involved in making decisions bearing on the war on terror, including interrogation policy," said Calabresi, a law professor at Northwestern University and a co-founder of the conservative Federalist Society.
"It has only been 200 years since we stopped guillotining our political opponents, and the impulse to criminalize good faith policy disagreements unfortunately persists. Good and talented people will not go into government in this country if the price for losing a policy dispute is jail time."
But Michael Cohen of the New America Foundation seemed to capture the complaints of many critics, writing, "I am very surprised that a professor of law, Steven Calabresi, would make an argument that basically ignores the fundamental role of the rule of law in American jurisprudence."
Calabresi specifically mentioned officials involved in formulating Bush administration legal justifications for interrogation and expansive presidential war powers, including former Attorneys General John Ashcroft and Alberto Gonzales and John Yoo, the former Justice Department lawyer who crafted many controversial memos in support of the policy.
In theory, intelligence officers involved in practices such as water-boarding or kidnapping could be charged with violations of U.S. law.
"Whatever one thinks about the steps taken in the war on terror by John Ashcroft, Alberto Gonzales, or John Yoo, there can be no doubt that they were and are ardent patriots who were trying to the very best of their abilities to serve their country and to protect our Constitution," Calabresi wrote. "They served their country loyally, and they should be allowed to leave the public scene in peace.
"..We need to have a political culture in this country where we can debate and disagree strongly about the issues without using the criminal law to cut off our opponent's heads," Calabresi said. "Absent such a culture, we will become just another banana republic."
Most of Calabresi's critics Wednesday opposed any kind of blanket pardon.
"If President Bush gives a blanket pardon for acts committed in the war on terror," wrote Dean Baker of the Center for Economic Policy Research, "then Congress should immediately impeach him even if it is his last day in office. Congress should make it clear that anyone who has such utter contempt for the law and the Constitution has no business being president."
"If there is a pardon here, it should come from Obama, not Bush," wrote Stanford Law professor Lawrence Lessig. "Bush's pardon would enrage the nation. Obama's would appeal for peace. But the whole idea is fraught with danger: We didn't pardon the soldiers convicted of violating the rules in the war. We sent them to jail. Commanders shouldn't be held to any lesser standard."
"The problem with Steve Calabresi suggestion goes beyond the question of whether or not we should put this all behind us and move on," wrote Mickey Edwards, the former Republican congressman who now teaches at Princeton. "That's a tempting suggestion, but to do so would be to implicitly accept — or at least not actively contest — the proposition that an opinion from the White House Office of Legal Counsel (the president's lawyer) is law.
"But an opinion from my lawyer does not make law nor excuse me if by following his or her advice I commit an illegal act…This is, of course, in addition to the view, which I support, that one who breaks the law in such an egregious manner — conducting or authorizing torture, violation of habeas rights, etc. — should not be able to do so without consequence; otherwise we are not a nation of laws but a nation of circumstance-based responses with nothing absolutely required and nothing absolutely prohibited."
Calabresi did find support in the Arena debate from Pejman Yousefzadeh, an attorney and prominent conservative blogger.
"If President Bush has received a firm assurance from President-elect Obama that there will not be any kind of prosecution concerning policymakers who played key and integral roles in formulating the Bush administration's various anti-terrorism policies, then the president should seriously consider refraining from exercising the pardon power," he wrote. "There is no need to give critics a target to shoot at, especially if the practical effect of any pardon — a lack of prosecution — will be achieved by having the Obama Justice Department quash any effort to prosecute.
"Lacking such assurances from the Obama administration, I am in accord with Professor Calabresi and believe that the president should issue a carefully calibrated, but comprehensive pardon."
Calabresi, responding to his critics in a second posting, said, "Many armchair warriors have criticized aspects of the Bush administration’s war on terror. Criticism has focused on detention policy, interrogation policy, and the use of military commissions to try terrorists. As a law professor with an interest in constitutional theory, I have some sympathy with some of these criticisms while I disagree with others. But we all must all remember that the lawyers manning the barricades in the Bush administration right after 9/11 were not armchair warriors. They were law enforcement officials with the constitutional duty of keeping us all safe in a time of great peril. They did the best they could, and they at least succeeded in stopping another attack."
The biggest pardon question here is whether or not he should pardon the former Governor of Illinois. The real reason Durbin wants George Ryan pardoned is that Blagoevich leaves office in 2010 and the indictments and such will start in late 2011. He wants a precedent sent for Obama to pardon him so things don’t get revealed so close to the 12 election.
Obama is the black Blagoevich.
Draft “evaders”?
Is that anything like pro-Communist traitors who blew up the Pentagon and attacked armories?
Is that anything like draft DODGERS?
Could you or someone define the difference between
“breaking the law” and a “policy disagreement”?
‘Cause last time I looked there are no jail sentences for the latter, but there are for the former.
On the other hand, if the President was a RAT, the media would be cheering the move on.
Dean Baker, Center for Economic Policy Research said,
“Congress should make it clear that anyone who has utter contempt for the law and the Constitution has no business being president.”
Wow! Sounds like he’s starting up another “OBAMA, SHOW US YOUR BIRTH CERTIFICATE” petition.
But alas, that was just my wishful thinking............
I also have heard rumors regarding legal action against Warriors on Terror. As a matter of fact, Mr. Cheney and Alberto Gonzalez have already been charged in some border county in Texas. The suit was brought by some crackpot, weirdo, D.A.
Yes, I can certainly understand how that would take LOTS of “preparation”. Talk about “revising history”!
Is Calabresi overstating the case? Let's allow history to be the judge:
While Chicago natives and violent domestic terrorists Bill Ayers and Bernardine Dohrn were living as fugitives, Edward Levi, Gerald Ford’s attorney general, was mounting a campaign against the FBI’s counterintelligence division. Levi, President of the University of Chicago at the time of his appointment, was a strange choice for attorney general if the purpose of that position is understood to include protecting the United States from its domestic enemies. He was a former member of the National Lawyers Guild, an organization cited by the now-defunct House Committee on Un-American Activities as "the foremost legal bulwark of the Communist Party, its front organizations, and controlled unions." Not coincidentally, Bernardine Dohrn was a prominent member of the NLG in the early 70's. As attorney general, Levi eventually indicted FBI acting director L. Patrick Gray, former Chief of Counterintelligence Edward Miller, and former acting associate director W. Mark Felt on charges of "conspiring to injure and oppress citizens of the United States."
The "citizens" in question were members of the Weather Underground.
Following the bombing of the Pentagon in 1972, Felt had authorized 13 surreptitious entries (commonly known as "black bag jobs") of suspected Weather Underground hideouts. This undoubtedly disrupted the terrorist cabal’s plans to complete its bombing "trifecta" by attacking the White House. But Levi insisted on prosecuting Felt and Miller for the supposed crime of preventing terrorism. After a prolonged court battle, Felt was sentenced to a $5,000 fine, and Miller was ordered to pay $3,000. The agents were also saddled with more than one million dollars in legal expenses.
Eventually, 140 FBI agents were brought to trial for their efforts to apprehend Weather Underground terrorists. All of these agents were prosecuted for actions taken in 1972-73 under guidelines created by Levi in 1976 — a violation of the Constitution’s prohibition against ex post facto laws. This amounted to a judicial purge of the FBI’s counter-terrorism division.
As Steven Emerson discovered, in the years leading up to 9/11/2001, aside from the "wall" created by Jamie Gorelick during the Clinton years, the FBI couldn't even keep news clippings of suspected terrorists, for fear of reprimand or prosecution. Thank Edward Levi for that, and don't think it can't happen again. If this is the path the drunk-on-power Democrats choose to go down – whether against the intelligence agencies, administration officials or the military -- this time, when the smoke clears, it will violent jihadists who will “guilty as hell, free as a bird,”
I’d argue that if the nation is willing to prosecute the people on the front lines keeping us safe it doesn’t really matter if they get pardoned or not. The country is lost.
What was it, the Oxford Union that voted overwhelmingly that they would not bear arms in defense of country? Not every country can count on having the man of the century ready to come off the bench and save the world as did Great Britain in 1939.
Today America is resembling England between the wars. The nihilism, the cynicism of the left, it's arrogance, have made it impervious to reason and I fear they can only be educated by events.
Given that the Al Qeda party has control of our nation he should do a blanket pardon.
The dhiminicrats would love to drag around our nations protectors through court to appease their financiers in the M.E.
F the Media and the dhiminicrats.
President Bush should issue a blanket pardon to his administration, the entire U.S. military and all intelligence agencies and other departments that took part in the War on Terror from January 20, 2001 onwards. Trusting the Obama administration and the Democratic controlled Congress would be extremely foolhardy!
. . . not to mention the fact that he should shred all the FBI files of his White House staff before Craig Livingstone returns to the WH Security office . . .
When you're dealing with Democrats, all bets are off.
He should issue the pardons on the way out the door just like Slick did and tell Congress to move on. While he’s at it, he shouldn’t forget Ramos and Compean.
Wow, I did not know about that. Thanks for posting it.
Bush's pardon would enrage HALF the nation - the half that already hates him.
He should do all of this on the 18th of January, then immediately resign. Then have President Cheney pardon him on the 19th.
That would give liberals heartburn to rival a blast furnace.
If you click through to the original debate at the Politico "Arena," it's obvious the firing squad is already lined up.
Of course, the value of the "investigation" is to keep public gaze, and rage, fixed on the image of the demonized Bush, while avoiding scrutiny of the new idol of hope and change.
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