The President can’t pardon people who don’t seek forgiveness. And he can’t forgive as he was not the aggrieved.
Yesterday the U.S. Senate released the long-awaited report on CIA torture. In an OpEd in the New York Times, Anthony Romero, the president of the American Civil Liberties Union, stated that he thought the people involved all the way up to the President should be pardoned. Romero’s logic was that only a crime could be pardoned, and therefore by pardoning these people the President would be a acknowledging that crimes had occurred.
Were only that easy.
Today, CNN reported that in response to that release, former VP Cheney said that he would do it all again and that report itself was deeply flawed. In that same response he indicated that he hadn’t actually read the report. Where I come from, before one can be forgiven, one must first seek forgiveness. Those who tortured but do not see the error of their ways must learn that a civilized society rejects them and their ways. The best way to convince them and others that we think torture is wrong is to hold those who are responsible accountable in a court of law. Mr. Cheney may never have been in the chain of command. What we see from him is simple puffery, an attempt to grab the microphone once again. His actions are those of a chicken hawk.
Some of the people who committed torture do in fact regret their actions, as was all too clear in an editorial in yesterday’s New York Times from former intelligence officer Eric Fair. Mr. Fair freely admits that he tortured. However, he did so under the color of authority of the United States. It is therefore not appropriate for the President to pardon him, either; because neither the President nor the people of the United States are the aggrieved. Rather, it is for the President to apologize to the victims on behalf of the United States in whose name these acts were committed, and for the Attorney General to prosecute. Once that has happened, and if the victims wish it, then and only then should he consider pardons. I would go so far as to add that Mr. Fair is also an aggrieved party, as he has scarred himself through this experience. Maybe the next person called upon to torture will learn how to say “no”. Maybe the Senate report will help us understand what happened, so that it does not happen again. It happened on our watch.
Update: CNN’s Peter Bergen points out all the flaws in Dick Cheney’s logic here.
Over the last few days there have been a plethora of conservative commentaries that range in their argument from Dick Cheney accusing the Obama administration of a political vendetta to The Wall Street Journal repeatedly arguing that the prosecutions are just wrong headed (such as this one) to Debra J. Saunders in the SF Chronicle, arguing that the employees in question should be pardoned. There are at least two problems with the arguments now appearing on the street:
- In all cases, torturer sympathizers seem to forget that we, the American People, don’t actually know what happened yet. That is what an investigation is for.
- In some cases, the argument seems to be that members of the CIA who were acting on orders should be shielded by the fact they were just following orders. We tried people and convicted them, not withstanding that defense, in Nuremberg. They were known as Nazis. We as a society need to send a message that no one is above the law. It may take years to catch up with people who have been politically shielded from their crimes, but they will be brought to justice.
- According to the CIA, torture has been shown to be unreliable.
That leaves the argument that the current investigation by the Justice Department is politically motivated. I would have to say that if one’s politics require one to believe that torture is illegal and immoral, then the answer is yes. Our morality throughout the world has been called into question. Do we condone the torturing of human beings? What, then, separates us from those we accuse of being evil?
On the other hand, I do not see any evidence that this is some sort of game of political Gotcha. While Debra Saunders writes that General Holder has in the past been inconsistent in his views when it comes to pardons, that means nothing in the context of a factual investigation.
As to Mr. Cheney, let him speak. He may, at best, be shielded by the fact that the vice president cannot order anyone in the executive branch outside his own staff to do anything. He would be the wrong person to go after, anyway. If President Bush ordered a crime to be committed, let him be held accountable, assuming a crime was committed.
This past week Eric Holder went before the United States Senate Judiciary Committee so that he might be confirmed as the next Attorney General. In that hearing, he was asked whether waterboarding was torture, and he gave a pretty unequivocal answer of “yes”, much along the lines that his soon-to-be boss President-elect Obama has said.
According to an article in the New York Times, and a separate one in the Wall Street Journal, the statement itself, obvious as it may seem, will have consequences for those who committed the acts, and for the United States government itself, who is party to a treaty that requires prompt investigation of all credibly alleged acts of torture.
The Times article mentions, however, that the Military Commissions Act of 2006 (where they probably mean the Detainee Treatment Act of 2005, PL 109-148 §1004) protects officials from prosecution if they acted in good faith based on the opinion of the Attorney General and the President.
Let’s put this another way: if the President and AG say it’s okay to torture, then according to that law, ain’t thing one a future president can do about it. Furthermore, simply changing the law would not remove the protection for officials, as any prosecution would be considered ex post facto, which is prohibited by our Constitution.
Of course nobody ever said that the President or AG said torture was okay. They just defined it in such a way that waterboarding wasn’t included. Well, why not do that with electrical shock, or caning? It’s a hole of infinite size through which any numbskull could step through.
What, then, does it mean when we say that the United States doesn’t torture people?
Continuing our theme from Independence Day, let’s talk about freedoms and rights. For those such as Alan Dershowitz who advocate such things as torture warrants, or for simple apologists for the Bush administration’s shameful behavior, now comes this little ditty from the New York Times about how the CIA took a crash course in rough interregation techniques for Guantanamo Bay just after the Towers came down. What they probably didn’t know was that the material was derived from a 1957 Chinese training manual that an airforce psychologist discredited as generating false confessions. Of course, even if the method did work, we now know who this administration turns to for guidance: a discredited regime used by a form of government we despised. This brings me to a point that I’ve always believed: fasism, communism, whatever: each can be used to subjugate citizens in just the same manner. It’s just a slightly different rationale. Yes, that says that it can and has happened in the United States, and it goes back to what Benjamin Franklin said: Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety. We’ve already seen that U.S. Senator Kit Bond was a perfect example. Of course, Franklin was defending against a different King George.
With our King George and in this case, we have to worry about what moral authority we have lost. Those Americans who happen to be abroad and in the wrong place and the wrong time will be the sorry beneficiaries of this president’s legacy.