Pardon Me, Did You Say 'Torture'?

An interesting article from the Wall Street Journal today (well, yesterday now).

The White House is asserting that because they wrote up judicial memos of dubious legality justifying torture, that there's no need to pardon any of the people who took part in the torture program, because they didn't commit any crime. This is essentially like when Richard Nixon tried to claim that it was impossible for the President to violate the law, because "when the President does it, that means it's not illegal", and it is clearly not true.

But my take on this is that this is a smoke screen, largely hoping to avoid having those who might be left twisting in the wind by not being pardoned to feel abandoned, disgruntled, and perhaps eventually inclined to testify about the program in a future investigation, if offered an immunity deal.

Because here's the dirty little secret: The President cannot issue blanket pardons. A pardon requires specificity, both in terms of the specific person or persons (by name) being pardoned and the actions (potential crimes, whether charges have been brought or not) for which they are being pardoned.

Now, imagine what would happen if President Bush were to start issuing pardons with that specificity. He would essentially be admitting that torture took place and would be giving enough detail for future investigations to determine just exactly what took place. And he would be removing the threat of prosecution from the very people who might now be called to testify on such extreme interrogation programs, people who would now have only to fear prosecution for failure to provide accurate testimony (contempt of court/congress, for example).

Recall that President Bush can not pardon himself, and that Presidential pardons only apply in the United States. If we did torture, even once, it violates international law (in the form of the Geneva Convention, to which we are a signatory nation), and even if the Obama Administration or some future one declined to prosecute, it is not beyond the realm of possibility that the International Court might decide to take a crack at it, given sufficient evidence that such violations occurred.

So really, there is nothing to be gained and everything to lose for President Bush to offer those pardons. This justification is (to use a much maligned phrase) lipstick on a pig.

Liam.