The ACLU Endorses Blanket Amnesty for Torture

by Kevin Jon Heller

I am very rarely shocked, but that was my response to yesterday’s editorial in the New York Times by Anthony Romero — the Executive Director of the ACLU — arguing that Obama should pre-emptively pardon all of the high-ranking officials responsible for the Bush administration’s systematic torture regime at Guantanamo Bay, Bagram, Abu Ghraib, various Eastern European black sites, etc. Here is a painful snippet:

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 Guantánamo Bay prison, David S. Addington, John C. Yoo and Jay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all.


The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware. Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.

I struggle to discern even the basic logic of this argument. I guess the key is that “[p]ardons would make clear that crimes were committed,” the idea being that you can’t pardon someone for doing something legal. But Romero’s argument has an obvious fatal flaw: “pre-emptive pardons” might make clear that Obama believes Bush administration officials committed torture, but they would say nothing about whether the Bush administration officials themselves believe they did. Romero is not calling for a South-African-style Truth and Reconciliation Commission that would condition amnesty on confession of wrongdoing; he wants to skip the confession part and go right to the amnesty. And the Bush administration’s torturers continue to believe that they did nothing wrong. To the contrary, they still cling to their puerile belief that they were the true patriots, Ubermenschen willing to do what lesser men and women wouldn’t to save the US from the existential threat of terrorism. No amount of evidence will pierce the veil of their self-delusion — and no pardon will have any effect whatsoever on their own perceived righteousness.

That Romero fails to see this is baffling enough. But I’m flabbergasted by his assertion that a blanket amnesty for torture — the correct description of his proposal — is necessary to make clear “that future architects and perpetrators should beware.” Beware what? Not prosecution, unless we are naive enough to believe that there is deterrent value in saying to the Bush administration’s torturers, “okay, we’re giving you a free pass for your international and domestic crimes this time — but next time will be a different story.” I’m sure future Bushes, Cheneys, Rices, Rumsfelds, Yoos, and Bybees will be positively quaking in their boots.

It’s also important to note something that Romero completely fails to address in his editorial — the message blanket amnesty for torture would send to the rest of the world. It’s bad enough that the US portrays itself as a champion of human rights abroad while it simply ignores its obligations under the Torture Convention. But there is a significant difference between lacking the political will to prosecute the Bush administration’s torturers and having the political will to offer them a blanket amnesty. If Obama “pre-emptively pardons” those who committed torture, how could the US ever criticise another government that decides to choose “peace” over justice? Some states in the world can at least plausibly argue that amnestying the previous regime’s crimes is necessary to avoid political destabilisation and future conflict. But the US is not one of them. Republicans and Democrats will not start killing each other if Obama does not pardon the Bush administration’s torturers. Ted Cruz will not lead a convoy of tanks emblazoned with the Texas flag on Washington.

But if Obama does issue Romero’s pardons, you can guarantee that future government officials will turn once again to torture the first time it seems “necessary” to counter a serious threat to the Republic. (Such as ISIS, which will no doubt be exploding Ebola-ridden suicide bombs in downtown Chicago any day now.) That’s the logic of criminality, at least when the crimes are perpetrated by the powerful — impunity simply emboldens them further. Give them an inch, they will take Iraq.

The bottom line is this: you want to make clear that torture is wrong, that torturers are criminals, and that future torturers should beware? You don’t offer blanket amnesty to the Bush administration officials who systematically tortured.

You prosecute them.

24 Responses

  1. I share your outrage and reasoned response to a patently absurd proposal from someone who should know better. What an absolute embarrassment for the ACLU (he should immediately resign, after all it sounds like he’s hankering for a high government job). The New York Times should invite Lisa Hajjar to respond to such bullsh*t.

  2. Shocking indeed!
    First, under the CAT and the 1949 Geneva Conventions, the U.S. has an unavoidable obligation to initiate prosecution of or to extradite every person who is reasonably accused of criminal responsibility for torture (like waterboarding, the cold cell, death threats, etc.). Of course, Obama has led the U.S. to violations of both treaties — also in violation of his constitutionally-based duty to faithfully execute the laws!
    Second, it is not possible constitutionally to pardon any person for an international crime (I wrote an essay on this way back — see language re: the pardon power in the Const.).

  3. We need to be specific about who may be prosecuted. Many who approved of or perpetrated these acts relied on legal advice of the Executive Branch and OLC, a part of the DOJ. The DOJ should and would therefore be estopped from prosecuting them. However, if those who wrote or relied on the opinions can be shown to have acted in bad faith, or if there are those who provided incomplete or erroneous information to procure those legal opinions, they could and should be prosecuted.

    Something must then be done to prevent the Executive Branch from using any form of legal argument or interpretation that allows it to violate criminal statutes clearly intended to constrain its activities.

  4. new at JURISSenate Report on Torture & Prior Admissions

    T re: Senate Report

  5. John: not merely bad faith. If an OLC opinion was manifestly in error, no defense “merely following orders” (or authorizations, or memos).
    Since 29 US cases, 3 int’l decisions, and 7 US Dep’t of State Country Reports had already recognized that waterboarding is torture = manifestly unlawful.

  6. Here is the essay on the pardon power
    offenses against the U.S. are not the same as offenses against the laws of the U.S.

  7. Romero’s proposal is the product of a sick mind. He should resign.

  8. It’s an absolute certainty that no one will be prosecuted for this. So what’s the alternative?

  9. It seems Romero has succumbed to the Sirens’ song of “looking forward, not backward.” All of us should adamantly and loudly refuse to endorse, and call out anyone employing, the fashionable political slogan that asks us, with regard to the public “revelations” about torture, that we “look forward, not backward,” for that shamelessly implies we ignore (i.e., act dismissive of, show contempt for, fail to appreciate the moral and legal significance of, obscure the moral and legal value of…) the fundamental moral and legal (hence also, criminal) importance of notions of accountability, responsibility, and culpability, all of which are, in large measure, “backward looking.”

  10. Romero’s logic is vaguely similar to the biblical teaching; that pardon leads to deeper devotion. Yet even that doctrine requires that the perpetrators are first convicted of wrongdoing.

    Granting pardon, without resorting to enforce law, and try the criminals, would not prove anything to anyone.

  11. even a pardon will not obviate universal jurisdiction in other countries, in the ICC (regarding crimes committed in part in the territory of a Party to the ICC), or in a special international criminal tribunal. The Obama Administration’s refusal to prosecute (or a presidential pardon) would leave the U.S. no option but to extradite – aut dedere aut judicare

  12. Response…American government instituted injustice must be exposed and judicially disposed. The ACLU, however, supports amnesty for creatures who reveled in a monstrous, inhumane program, thoughtfully created by minds so demented it has to hide its unspeakable, sick conduct in a maze of legal incoherence – and the torture continues in the shameful environs of Guantanamo Bay.

    The ACLU, like so many corrupted American institutions, now takes a path that deviates from justice, so desperately needed.

  13. Response…In response to a comment, going by the logic of that short article, can someone be pardoned by POTUS for something like murder of an ambassador?

    The op-ed does to me seem misguided but it also seems to be a cry of desperation. As a comment notes, I don’t see any real evidence of likely prosecutions. A few years back, Rachel Maddow breathlessly, almost, had continual segments about such crimes, including things still open to prosecution. Never happened.

    Personally, I think a truth and reconciliation approach has merit, but that happened in South Africa after the whites in effect lost. Telling point.

  14. Response…
    Et cet État continue de prêcher les droits de l’hommme et le rule of law; And this State preachs human rights and Ruke of law.

  15. A sad day for International treaty law indeed. However, I kind of agree with him. Better to have a quick pardon than years of litigation ‘torturing’ the language of the treaty and evicerating future, practical enforcement (like in U.S. v. Bond).

  16. OMG do you not understand that nothing will happen? That there will never be a prosecution of those torturers?
    Prosecution of criminals and the law in general is based upon precedent. There IS NO PRECEDENT in the US for the prosecution of its citizens much less administration officials for torture. This action of amnesty recommended by the ACLU is the best hope of establishing that prescedent.
    Kudos to them foe thinking out of the box. As for the author above, he seems unable to think at all.

  17. I simply cannot believe Mr. Romero’s response to the torture report. The torture report, although it documents sadistic criminal acts, and while I am in no way attempting to diminish the pain and humiliation suffered by the victims, pales in comparison to the remote electronic torture of thousands of Americans as we speak, that the torture industry has long migrated to.

    Mr. Romero knows about the remote torture too, as many have accessed the ACLU to inform them of their agony, seeking help.

    Please read:

Trackbacks and Pingbacks

  1. […] autoridades estadounidenses, quienes además no pueden cobijar con amnistías aquellas (como se ha propuesto por alguno de forma errada) las violaciones ni ampararse en normas internacionales dispositivas […]

  2. […] international law professor Kevin Jon Heller wrote that the “fatal flaw” in Romero’s argument is that the Bush administration’s […]

  3. […] autoridades estadounidenses, quienes además no pueden cobijar con amnistías aquellas (como se ha propuesto por alguno de forma errada) las violaciones ni ampararse en normas internacionales dispositivas […]

  4. […] wird, sofern Obama dem ACLU-Vorschlag folgen sollte, höchstens einen Präsidenten geben, der uns sagt: Übrigens, ich finde, das sind Verbrecher, aber bestraft werden sollen sie […]

  5. […] international law professor Kevin Jon Heller wrote that the “fatal flaw” in Romero’s argument is that the Bush administration’s […]

  6. […] And two at Opinio Juris: first, second. […]

  7. […] “rectal-rehydrating” Senate report on torture. Except, perhaps, to loudly reject the twisted logic of the ACLU’s call to pardon the perpetrators to “ensure that the […]