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.