Should Obama Pardon Bush?

The Senate Intelligence Committee, chaired by Dianne Feinstein (D-CA), has released its so-called “torture report,” detailing interrogation practices by the CIA during the months and years following the September 11, 2001 attacks. The report, which details both abysmal treatment of prisoners and efforts to cover it up, has elicited responses that question the nation’s claim to its own core values.

But the implications of the report extend not only to the theory and practice of a liberal value system that supposedly stresses basic human rights and the rights of the accused. Like many developments in American politics lately, the torture report has party politics implications. According to the New York Times (linked above), the report itself was “conducted by staff members working for Democratic Senators on the committee.” The committee’s Republicans issued a separate rebuttal.

One question with serious implications for party politics is how the Obama administration will respond. The practices described in the report, after all, are among the kinds of abuses that Obama’s 2008 candidacy was partly built on repudiating. However, the stakes for expressing that repudiation by holding the previous administration legally accountable are very high. At Slate, Eric Posner argues, “This is the idea that you don’t try to gain political advantage by prosecuting political opponents—as governments around the world do when authoritarian leaders seek to subvert democratic institutions.”

The administration’s own credibility on respecting rule of law in its counter-terrorism strategies is also fairly strained. Posner further points out, “Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.”

ACLU director Anthony Romero offered a different approach: instead of prosecuting, Obama could pardon a highly visible group of Bush administration officials – including former Defense Secretary Donald Rumsfeld, and Bush and Cheney themselves. Romero mentions three important instances of “preemptive pardoning,” when presidents have issued pardons in order to heal a national division: Lincoln and Andrew Johnson’s pardons of Confederate soldiers, Ford’s pardon of Nixon, and Carter’s pardon of Vietnam draft-dodgers. The latter two are widely seen as having been politically costly, and Ford’s pardon of Nixon even as a serious lapse in executive accountability. Writing last year about the political use of pardons, Leon Neyfakh suggests that a number of twentieth century presidents have used pardons to signal disagreement with existing policies.

What’s striking about this list is how many of the pardons meant to send a political signal do so in a way that either repudiates opponents or affirms the president’s own political identity. As Neyfakh describes, Kennedy and Johnson used the pardon to express disagreement with crime policy passed under Eisenhower. Ford pardoned the president under whom he served as vice-president. George H.W. Bush pardoned Reagan administration officials implicated in the Iran-Contra scandal. (For more on presidential pardons, check out work by Jeffrey Crouch and P.S. Ruckman). Wilson and Carter both pardoned on issues that crossed party lines in some way – Prohibition and Vietnam, respectively. But neither constituted a reversal on a major issue, stated repeatedly in an election campaign. The biggest exceptions are Lincoln and Andrew Johnson’s pardons – efforts to heal in the wake of the Civil War.

A potential Obama pardon would be different, then, from the recent pattern. It might infuriate critics on the left who are increasingly skeptical that this administration takes human rights and rule of law seriously. Like Ford’s pardon of Nixon, the act of pardoning would also acknowledge the wrongdoing, even while closing off the possibility of punishment. At the same time, it would depart from the logic that has informed many other politically visible pardons: while breaking from the past, it would acknowledge his opponent’s – not his own party’s – legitimate role in the polity despite serious transgressions. In the current political climate, that might actually be a radical move.

[Cross-posted at Mischiefs of Faction]

Julia Azari

Julia Azari is an Assistant Professor at Marquette University.