Speaking of Blanket Pardons

By David Swanson

There's a blanket pardon I want President Bush to issue and one I want him not to. Both would involve preemptively pardoning people before they're charged with any crime, much less convicted, and doing so without naming them. One would be decent, just, and Constitutional; the other would be none of those things. One would please people around the country and the world. The other would please the Washington establishment. Bush may very well issue neither of them, but to logically make any sense, without denying important facts, he would have to issue one or the other.

Bush is perhaps not quite the mental equal of Jimmy Carter, but there's no reason for him not to manage by his last day in office what Carter accomplished on his first. Carter issued a blanket pardon of those who had not registered for the draft and those who had left the country to avoid it during the war on Vietnam. I would like to see Bush pardon those members of the U.S. military who have refused to occupy Iraq or gone AWOL during the occupation, as well as anyone convicted of nonviolently exercising their First Amendment rights to oppose this war. Members of the military have a duty to disobey illegal orders. Any criminal charges for fulfilling their duty should be undone and prevented. As a reward for acting so magnanimously, Bush could -- as far as I'm concerned -- include a pardon for his own AWOL period just in case he's ever belatedly tried for it.

If Bush does not take this step, then he must maintain that wars of aggression, lies to justify them, usage of a wide variety of illegal weapons and illegal targeting of civilians, illegal detentions, torture, murder, warrentless spying, outing CIA agents, politicizing the Justice Department, etc., etc., is all actually acceptable, even while acknowledging its obvious illegality. In that case, he must either maintain confidence that our justice system will not be repaired for decades, or he must issue a different sort of blanket pardon, one pardoning all of his subordinates for these crimes. To be consistent, such a pardon would cover everyone from Cheney, Rumsfeld, and Ashcroft on down to even the lowly soldiers and mercenaries who actually have been convicted of such offenses. The problem, of course, if that this whole project would be inconsistent with maintaining a nation of laws. If a president can instruct a subordinate to commit a crime, and then pardon it, then there can be no more rule of law. A president could order murders committed and pardon those murders. And of course that's exactly what Bush would have done.

Now, to be consistent on our end, we would have to urge prosecution of every member of Congress, the military, and the media who assisted in Bush's crimes, but so would the prosecutors at Nuremburg have had to charge half the population of Germany. Instead, it is perfectly sensible to start at the top and prioritize by likely effectiveness in deterring future offenses. Which deters a future cabinet official more, locking up a former cabinet official or locking up a member of the National Guard? And, of course, if Bush tries to pardon himself for actions he has taken while president, he should be jailed immediately to await trial.

Now, even though there are pardons I'd like to see issued, I am very open to the argument that the pardon power is abused so consistently that it should be eliminated. I'm also open to compromises that would allow Congress some checks on abuses of the pardon power.

There has also been some discussion of late about the unpardoning power, the power of a president or his successor to take a pardon back. Apparently this can be done as long as the pardonee has not actually received and accepted the pardon. In the case of blanket pardons of nameless groups, this would seem to mean that the pardons can be undone at any time by future presidents. I think this makes a mockery of the whole idea of pardons, and that if you're going to have unpardoning you should not have pardoning at all. Nonetheless, it may be useful to point out the existence of the unpardoning power to President Elect Obama in case he lacks the nerve to do what he and Congress and our courts really should do: reject Bush's pardons of crimes he authorized (including the commutation of Scooter Libby's sentence) as not really Constitutional pardons at all.