Wednesday, February 17, 2010

Pardon Them

As you might expect from previous items in this series, I agree with Andrew Sullivan and Glenn Greenwald about Dick Cheney's appearance on Sunday TV in which, as Sullivan put it, "the former vice-president has just confessed to a war crime." (see also Scott Horton).  To me, this is just further evidence that the decision of the Obama administration to try to avoid the issue -- a decision I can fully understand as a reasonable choice of priorities -- is also, whether they like it or not, a decision that ultimately cannot hold.  As I've argued, from the point of view of the administration, pardon plus commission is the best solution.

Here, however, I want to argue from the point of view of strong opponents of torture, for those who find torture morally abhorrent and practically counter-productive.  They might not care about my argument from the point of view of Obama (and the Democrats); they might be perfectly willing to give up every other item on the Obama agenda, including reelection, in order to put an end to American torture.  That's a reasonable position to take -- and what I say to them is that pardon plus commission is the right path.

First, where we are now.  Greenwald nails it:
Obviously, from this point of view, there's no need to talk about what the administration is doing now.  (1) selective prosecutions; (2) massive prosecutions; (3) pardon.  In each case, presumably the prosecutions or pardon would be accompanied by something like a Truth and Reconciliation Commission.  My feeling is that selective prosecutions is probably a non-starter.  I think it's very likely that a great many people, from those who actually carried out the policy, to those who developed it, to those at the very top of the Bush administration who chose it -- including the President and Vice-President of the United States -- commited criminal acts.  Perhaps prosecutors could stop short of those two, but I'm not sure there's a good justification for it, and at any rate torture opponents believe that Cheney, at least, should be prosecuted. 

The question, however, is not whether Cheney (or Bush, or Yoo, or CIA operatives) deserve to be in jail -- but how to answer Greenwald's rhetoric questions.  What remedies now will make future torture less likely?

If Obama and Holder decide to prosecute, there's little question of the results: Republicans of all stripes would rally around their now-persecuted  friends from the Bush administration.  Republicans of all stripes would feel the need to justify the actions that the torturers took, and to do so they would double down on tales of how effective torture was at supposedly stopping all sorts of nasty terror attacks.  Republicans, I tend to think close to unanimously, would refuse to have any part in any Truth Commission.  They wouldn't serve on it, and they wouldn't accept its results; they would brand it a partisan witch hunt.  Torturers and those who worked with torturers wouldn't testify.  How could they?  They'd be incriminating themselves and their coworkers.  So the commission might demonstrate some of the truth, but would achieve no reconciliation at all.  The deterrent factor for the future would rest on one thing alone, the ability of the Justice Department to obtain convictions and serious sentences, although such sentences would be gone, at least for policy makers once the next Republican president was sworn into office.  And yet even then, the more Republicans solidify into the torture party, the more they would be likely to change the law and treaty obligations once they win the White House.  In my view, a not at all unlikely result of prosecutions is withdrawal from Geneva during the next Republican administration. 

Would pardons avoid this result?  I can't guarantee it, but I think it radically changes the incentives.  Recall that I'm recommending a blanket pardon for everyone involved in torture, along with a serious commission that would lay out exactly what happened and all the things wrong with it -- and I'm also recommending working hard to try to get as many senior Bush administration officials as possible to publicly accept those pardons.  And I'm recommending a generous pardon, with President Obama granting the war criminals (no, he wouldn't call them that) the best of intentions. 

OK, what happens with pardon plus commission?  Hard core supporters of torture, including Dick Cheney, will certainly continue to press their case.  But there's a real chance that they can be marginalized within their own party.  Once his son is no longer in legal jeopardy, and assuming that his personal views are anti-torture (which I think is likely), then George Herbert Walker Bush might well be persuaded to speak out publicly and privately on the issue.  Other Republicans respected by Washingtonians -- Lugar, James Baker, Dole, former CIA, FBI, and other government leaders, perhaps McCain -- might follow.  As I've said before, I think it's realistic to hope that some of the Bush folks might join that chorus, perhaps even the former president himself.  As Andrew Sullivan has done, Republicans could invoke Ronald Reagan (not to mention George Washington and other American heroes) in making their case against the acts that took place -- as long as they do not also have to condemn the people who performed those acts.  With them on board, and with the threat of prosecution no bar to testifying, a real Truth Commission could function.  Such a commission (and all commissioners, Democrats, Republicans, and others) would take it as a given that the United States should abide by Geneva, and therefore could consider evidence of any possible gains from torture in the proper context.

Basically, I think criminal sanctions on past war criminals are far less likely to prevent future war crimes than would a restoration of the American consensus against torture.  I can't guarantee that pardon plus commission would achieve that, but every bit of political instinct that I have says that prosecutions would prevent it.  If one is really against torture, it seems to me that preventing future torture is far more important than punishment of the torturers -- the latter should only happen if it is a means to an end, not for revenge, and not even for justice.  The current best path toward that end is a generous pardon, as hard as that might be to swallow for opponents of torture.  Separate the acts from the actors, and the chances of preventing future acts are much, much, better.


  1. Jonathan, you are not far off here. I agree that pardons alters the landscape for Republicans to make it harder for them to form an ideological phalanx. It would be plain stupid for them to do so when there is no threat of criminal prosecution. But this is a party that acts monolithically and stupidly at the same time (health care, financial reform, any success for Obama really). Even with full pardons for all those involved, Democrats would be fools not to capitalize on the fact that under Republican "leadership," the United States became a nation that tortures prisoners. Given that Republicans are addicted to power, you can be pretty safe in assuming that, even with full pardons for all, the Republicans would never participate in a Truth and Reconciliation commission. Republicans don't air their dirty laundry. The last time it happened, their president resigned.

  2. Are you serious about the reconciliation part? I'd love to see Cheney apologize to KSM in return for his pardon but I don't think that'll happen.

  3. Chris and Eric,

    First, Chris, I personally don't want Cheney to apologize to KSM. I would like to see Cheney apologize to the American people, however. His crimes, IMO, were against America, not against KSM. But, again, I think opponents of torture should be more concerned with condemning the acts, not the actors.

    As I said, however, I don't think that's remotely possible. I do think it's very possible, contra Eric, that some Bush officials would repudiate torture, and perhaps even apologize for it. GOP reaction to Iran-Contra was split, not monolithic. Many Republicans, including George W. Bush, are on record as being against "torture" and condemning Abu Ghraib. I don't think the GOP is locked in on Cheneyism yet, and I do think it's possible to keep it from happening.


    Really? Is this just a gut feeling or is there anything concrete underlying it?

    Because I cannot imagine that anyone in the Bush administration would do anything of the sort. I mean, what would be the incentive for them to do so? It wouldn't be so that they could clear their consciences, because they don't regret what they did. It wouldn't be to have some sort of national reconciliation, because the benefits of such a moment would accrue to the man in the White House.

    I just don't think blanket pardons would have any effect on the incentives of these people. Clearly they are not afraid of being imprisoned, because they know Obama won't take the political risk of prosecuting them. (Plus, as you note, they would be freed when the next GOP president takes office.)

  5. The GOP thinks they've got a winner in torture (see Waterboarding Wins). All of the Republican primary candidates in 2008 except McCain made a big show of their love for torture. It's too late. They're pro-torture.

    If you have hearings or if you have prosecutions either way they're going to throw a huge hissy fit. You might as well do the right thing, just follow the law for a change, and prosecute the war criminals.

  6. Andrew and Chris,

    *Some* Republicans think that they have a winning issue. Not, so far, all. Many Republicans right now publicly take a pro-torture position (although almost all of them are still careful to deny that they are actually in favor of "torture"), but not all do so. I'm confident that not all Republican elites are, in fact, pro-torture. With prosecution as a possibility, I think the anti-torture Republicans have a strong incentive to stay quiet. Without that...well, as I said, I can't guarantee it, but it isn't true that all Republicans march off in lockstep to whatever crazy ideas Dick Cheney (or the NRO gang) urge. If they did, America would have invaded Iran five years ago, among other things; in fact, Republicans are all over the map on that one. Nor did the US withdraw from the UN, or invade Venezuela, or other things. Treating conservatives, however, as monolithically supportive of their extremists is a good way to get them to behave that way.

  7. Jonathan, the GOP takes its cues from Drudge, Limbaugh, Roger Ailes, and, increasingly, the Tea Party movement and Sarah Palin. Those media figures, in turn, act as the propaganda wing of the GOP (aided by WaPo, NRO, the WSJ, the Weekly Standard). That you do not see this as an ideological monolith is puzzling. Until Republicans are public about their opposition to torture, or anything not at the heart of their ideo/religio extremism (and I'm not yet convinced that Scott Brown is the new voice of the Republicans by any measure), then Republicans are not, as you say, "all over the map" on much of anything. Perhaps you have insider knowledge of where individuals within the party elite stand, but it don't mean nuthin' till they let the public who lelected them know how they stand.

  8. Eric,

    Republicans can be pretty good at message discipline, and Congressional Republicans can be good at enforcing the party line when they vote. But that's not the same thing as saying that they act monolithically in all cases. See the examples I cited above, in which the Bush administration didn't follow the path that NRO et al would have had him take.

  9. You make a lot of good points here but I think that there is no choice but to keep sweeping it under the rug at least for now.

    A pardon is a non-starter on all fronts. The left would lose their marbles and it looks like hypocritical self dealing to the rest of the world.

    But you also really have to look at what Cheney and the right are doing. Anything and I mean anthing that the administration does in a very public matter to deal with this right now would simply be a platform for them to launch a FOX news driven campaign from. I don't believe for a second that Cheney is or has ever been "worried" about prosecution. I think the way he's been acting he wants to be thrown into that ol' Briar patch so that he has a real platform to spew invective from with the goal of launching a populist mob on the White House and anyone left of center.

  10. AhYup - It would look like "hypocritical self-dealing" to the rest of the world outside of the Faux News set as well.

    The real question, at the base, is are we a country of law or not; from precedent and action, the answer appears to be "not".

    That we tortured makes me sick. That Cheney can brag about it on national media makes me sickest. That the Obama administration remains complicit by refusing to take any action makes me the sickest of all.

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  13. As sensible as the argument is, it sounds too much like late Republican Romans saying "let us just forgive Octavian his few years of tyranny" for me to support it. If the U.S. has gotten to such a point that we have to choose between continuing our democracy or justice, then our democracy is already dead. If one party can hold our prosperity and peace hostage for the sake of protecting its members from criminal prosecution, then don't we really just have an oligarchy already?

  14. My above post is perhaps too depressive. My point is this; if politics has degenerated to such a point that our politicians have a greater loyalty to their party, as embodied by pols who overlook the crimes of their peers, than to the nation, as embodied by the law, then in what meaningful sense can they still be considered representatives of their fellow citizens and not of party interest? It is precisely in issues of law and morality that one would expect principled party members to speak out against their party, and yet, the number of Republicans who have done so publicly is very few. One could argue that, by bringing in Gates and other Bush Sr. advisers, the Republican Old Guard attempted to and succeeded in curbing Bush jr., Cheney, and the entire Addington approach to governance, but what does it say about the opinion this governing class has of themselves and our society when they feel fixing the problem, without even acknowledging it let alone punishing anyone or condemning it publicly, is a sufficient response?

    This is about something more than just torture; it is about the accountability of our political class. We should not forget that the two biggest defenders of Nixon's criminality were and are David Addington and Richard Cheney. Part of their entire idea of government is the supposition that the President cannot break the law, even when he uses the FBI to spy on and intimidate his political rivals. To not pursue criminal charges for clearly committed and freely admitted criminal behavior is to acquiesce to their formulation of political power. That, in my mind, is the real reason he went on television and said this; not to gloat, but to press the issue, and the question facing us is, are we free men who love justice or aren't we?

    Compared to what Cheney and his ilk did, the actions of Nixon are petty crimes, albeit ones clearly against the body-politic and not ones easily misrepresented as against foreign nationals. Yet Ford's pardoning of Nixon made him unelectable for a term of his own, and it was Republicans who refused to vote for him because of it. Now level heads argue that to indict men as criminals for kidnapping and torturing, to death, innocent men, and then attempting to hide their misdeeds by destroying evidence and mutilating the corpses is too extreme, too disruptive a step to take; that Republican voters will rise up in rebellion, led by representatives too loyal to their party to care for justice. I say the contrary; that by forcing the issue, by dragging it into the light, we will force the brave and the good among the Republicans to stand on their virtue against those demagogues and party bosses who try to bully them with funding-threats and liberal-smears. This is a test for us as a nation. We can shirk it for the sake of a false comity, and by doing so embolden the fetishists of power and empire among us, or we can face up to it and fight the fight that needs to be fought to ensure this is still a democracy 100 years hence. Despite the danger, I prefer the latter.

  15. OK, Jonathan, I'll grant you that there are shades of crazy in the neocon ideology, and that Bush didn't follow the Cheneyites over the cliff. But let's put it into context: Bush only went the other way when it was clear that the voters realized that the neocon strategy was a losing one. At his heart, Bush was a populist (hello, "compassionate conservative"?).

    Currently, the neocon/GOP line is oppose Obama at every turn. If Obama pardoned all parties involved in the authorization or implementation of the Cheney torture policy, and called for a Truth and Reconciliation commission to be set up, not a single Republican involved would a) show up, b) admit fault or error, and c) implicate another Republican.

  16. Much of the power of this post hinges on your nightmare that "[i]n my view, a not at all unlikely result of prosecutions is withdrawal from Geneva during the next Republican administration."

    I don't think a GOP administration could make a withdrawal from Geneva stick, or that it would even try: it would be isolationism gone so far amuck that we'd lose NATO and the EU as allies. You may think that's as extreme a forecast as I think yours is, but I think that at minimum we'd be in seriously uncharted waters if a future United States tried to do what you're worried about, and I think even just the attempt would cost proponents of the move dearly. At least it should: we'd hold the high ground, we'd not let it happen without massive protests, civil disobedience, electoral work, the works.

  17. Julian, I respect the optimism in your post, and do still hope that sane Republicans would rise to the top and repudiate torture and admit that what we did was torture. Pushing Cheney out further into the fringe would be good for the country. However, that's an extremely slim possibility. Fox News, Limbaugh, and Drudge own the GOP's talking points. They are clearly on record as supporting torture and they feed reasons to support torture to GOP elected officials (and those seeking office as well). The Washington Post is another heavy hitter on the torture front, having two of the most unapologetic architects of the Cheney torture regime (Krauthammer and Thiessen) on its staff. These voices wield tremendous influence. They cannot be shown that they are wrong -- they are simply not wired that way. Someone as highly regarded as Robert Gates to come out and repudiate torture will be seen by the GOP as coming from someone tainted by Obama. Same with Colin Powell, Stanley McChrystal, and Admiral Mullen.

  18. Thomas -- correct me if I'm wrong, but didn't Bush Jr. unilaterally abandon the Strategic Arms Limitation Treaty?

  19. Jonathon you suffer from a total failure of imagination. You imagine that the American people a) watch politics like you and me b)understand very much of anything and c) care what happens to the 'enemy' whomever that may be.

    The truth is this: Americans tune into the very basic outlines of what is going on. If these people get a pardon, it will be understood that they DESERVED a pardon, and that will be that.

    People understand raw power. Take your arguments and apply them to Scooter Libby: even Bush understood that once a guy has been frog-marched in cuffs and found guilty at trial, that a pardon starts to stink.

    Obama should have come in and hammered the shit out of Cheney and minions, and left Bush alone. 1/3 of America could not even tell you who Cheney is or what job he used to have, and you are worried about what respected Washingtonians think ?

    Your kind of thinking is what led the Wiemar government down the rat-hole. If these WAR CRIMINALS can get on TeeVee and taunt the president that he will be a one-termer, and they tortured and what of it, all I can say is
    "pardon" me for saying so, but you understand nothing about the American mind.

    You should know that we are in a time unlike any in your lifetime- this democracy is in danger like it has not been since 1860. Read the manifesto of the man who flew into the IRS building today: made perfect sense to me and plenty of people I know who read it.

    Lincoln did not eff around when South Carolina walked, and if Obama lets high officials trash the rule of law, its not very far from the same damn thing. Wake Up !

  20. I don't think whether Obama prosecutes or pardons is the key decision here.

    The problem we have is the torture narrative. Dick Cheney claims the Jack Bauer mantle--he's willing to do the dark things necessary to protect America that liberals aren't willing to acknowledge.

    Whether you pardon or prosecute Jack Bauer doesn't so much matter--what matters is that you call his bluff--you have to demonstrate that you are utterly happy to talk about this, and make a forceful case that these acts were not merely immoral, but stupid and hysterical.

    Maybe a pardon is one part of doing that. Maybe that would change Cheney from being the Dark Hero who Has Seen This City's True Face into being yet another poor victim of 9/11 hysteria--forgiven not because he was right but because he was weak.

    But I'm not sure a "minimalist" like Obama has any interest in fighting narratives. He keeps wanting to pivot away from national security to health care or jobs. Which only plays right into Cheney's narrative--it makes it look like Obama and thus all opponents of torture are afraid to see the truth.

  21. Let me repeat myself: this country is full of marks who dont know their asses from a hole in the ground. The sooner we get that, the better.

  22. Cheney and his henchmen deserve the exact same punishment that Captain Matsuo Komai of the Imperial Japanese Army got at the end of World War Two for the torture and murder of prisoners he dubbed "illegal combatants".

    He was tried, convicted, sentenced and hanged. Other IJA officers did hard time in prison. The former president of Peru, Alberto Fujimori, is currently serving prison time for torture, as are members of the Junta of Argentina.

    It's pathetic that Third World countries have a better commitment to the rule of law than the USA.

  23. Punk makes a lot of sense. Bernstein is projecting a rationale that is utterly lost on the bulk of voting Americans. Wake up indeed !

  24. God forbid we withdraw from Geneva! hat would just be putting an official vaneer on an already obvious reality. We can't follow our own basic laws anymore and yet we should be concerned about whether or not we are a party to some old international treaty?
    Revisionist Punk nailed it. But I also wish to point out, that I don't care more about not torturing or opposing torture than I do about justice and the rule of law. I think and hope that everyone who is so incensed by the utter lawlessness on this issue, certainly opposes torture and its disgusting immorrality, but, deep down is passionate about the rule of law, and America continuing to be a member of the civilized world.

    If the republicans want to stake out their positon as the party of actual torture, in the face of plain as day readings of statutes, laws and treaties, then we should have a little more faith in the true moral compass of our electorate. And if they want to have an open debate about whether we should change our laws to allow for torture then I say bring it on. Seriously, it's a much better place to be than where we are now: debating that we should make illegal conduct legal simply by straw-polling fiat!



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