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."
Call me when Sandy Berger is frog marched to Levenworth..
How can the Democrats/liberals/radicals be concerned about Bush pardoning people? After Bill Clinton pardoned the world on his last day in office, and that was ok with them, how can they come back and be critical if Bush pardoned someone? At least Bush may have some good reasons for issuing pardons, if it gets rid of vengeance and investigations of the Bush administration. Did Clinton have good reasons for his pardons?
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