Yesterday, the Senate Intelligence Committee issued what history will likely call the Feinstein Report, after California’s Senator Diane Feinstein, the committee’s outgoing chairwoman. The 600 or so pages represent the declassified summary of a 6,000 page report on the CIA’s use of torture in the war on Al Qaeda and its fellow travelers. Cable news and pundits had a field day discussing a document they probably hadn’t read in full, while the CIA argued that its work saved lives. Perhaps the most interesting suggestion came from the executive director of the American Civil Liberties Union, Anthony Romero, who suggested that President Obama pardon everyone involved. Interesting, but sadly, a non-starter because the President actually can’t pardon them.
The presidential power to pardon criminals for illegal actions is clearly spelled out in the Constitution. Article 2, section 2 clause 1 contains this line “he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There are situations in which the common good requires an offender to go free, or at least, there is no benefit to punishing a convicted criminal. Usually, the judiciary gets this right in sentencing, but on occasion, the judges are wrong, and this power serves as a final check on their authority.
Mr. Romero argued in a New York Times op-ed, quite cogently, that a presidential pardon “may be the only way to establish, once and for all, that torture is illegal.” He claims that the Obama administration has failed to prosecute, or even investigate, those responsible, and that “tacit” pardons are the order of the day.
[W]with the tacit pardons, the president leaves open the very real possibility that officials will resurrect the torture policies in the future. Indeed, many former C.I.A. and other government officials continue to insist that waterboarding and other forms of torture were lawful.
By issuing formal pardons, the president makes clear that there were crimes, that the actions taken violated the law, and that they do not, therefore, represent acceptable actions in the future. “Mr. Obama could pardon George J. Tenet for authorizing torture at the C.I.A.’s black sites overseas, Donald H. Rumsfeld for authorizing the use of torture at the Guantanamo Bay prison, David S. Addington, John C. Yoo andJay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all.” One would like to see Mr. Cheney’s face at the press conference where he accepts his pardon, no doubt purple with rage. Yet, failure to accept a pardon would leave him open to prosecution, and the public opinion on the matter might actually force such a trial.
When President Ford pardoned President Nixon for crimes he committed while in office, he did so in the firm belief that it was the only way to end America’s “long national nightmare.” Mr. Romero cited this pardon in his article.
There is just one problem with his proposal. President Obama does not have the power to issue such pardons. The Constitution clearly states that international law is part and parcel of American law, Article 6 reads in part, “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”
Britain’s Ben Emmerson is the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and he issued this in a statement
As a matter of international law, the US is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.
By signing onto these treaties, the US gave up the power to pardon in these instances. And as Mr. Romero noted, tacit pardons are dangerous, although they are remarkably like prosecutorial discretion. If prosecution, though, is demanded by international law, it cannot stop with the conviction of low-level operatives as happened in the Abu Ghraib case. Charges must reach into the Bush administration at the cabinet level. And that would begin another long national nightmare.