Torture Truth Commission

Obama seems inclined to investigate the torture allegations but not to prosecute, says Newsweek:

Obama aides are wary of taking any steps that would smack of political retribution. That’s one reason they are reluctant to see high-profile investigations by the Democratic-controlled Congress or to greenlight a broad Justice inquiry (absent specific new evidence of wrongdoing). “If there was any effort to have war-crimes prosecutions of the Bush administration, you’d instantly destroy whatever hopes you have of bipartisanship,” said Robert Litt, a former Justice criminal division chief during the Clinton administration.

Reactions in the ‘sphere are mixed, for reasons Kevin Drum puts his finger on:

At bottom we still have a public opinion problem here: like it or not, half the country still seems to think that torturing al-Qaeda suspects was perfectly acceptable.

Indeed. Even today there’d be no shortage of people willing to volunteer to take the cattle prod to 9/11 mastermind Khalid Sheik Mohammed, for instance. Memories of a historically unprecedented assault on the soil of the US will do that.

The broader reason, however, is maintain the country’s political stability. The minute one party starts believing that the only way to stay out of jail over what it sees as a political dispute is to hold onto power, it’s all downhill from there.

UPDATE: Matt Yglesias argues for trading leniency only for full cooperation:

I think it’s important to draw a distinction between simply declining to engage in war crimes prosecutions as a matter of prosecutorial discretion, and actually taking prosecution off the table. The latter should be done, if at all, only in exchange for confessions, expressions of remorse, and cooperation with investigations. The former may is probably the better part of wisdom for now, but many of the perpetrators can be expected to live for decades and absent something like a real Truth and Reconciliation Commission the door should be left open to doing something down the road if circumstances change. I don’t think it’s even remotely acceptable to just give a full retrospective stamp of approval on everything that was done during the Bush years merely because that might be the most convenient way to build legislative support for Obama’s domestic agenda.

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Al-Qaeda PR Department

Our old friend Ayman Zawahiri certainly showed himself fit for a KKK grand dragon’s robe with his offensive, race-based characterization of the president-elect. But I’m afraid commentators like Evan Kohlmann who are predicting blowback are a tad optimistic. Zawahiri is an Arab nationalist who cares little for how his words play outside of the Arab world. And if nothing else, the situation in Darfur suggests that Arabs and black Africans are not natural allies.

Newsweek: Bush Might Be Reluctant To Pardon

Michael Isikoff and Mark Hosenball play the on-one-hand, on-the-other hand game regarding speculation about pardons:

Vice President Dick Cheney’s former chief of staff, I. Lewis (Scooter) Libby, whose prison sentence for lying in the CIA leak case was commuted by Bush last year, has not submitted a pardon request to Justice. But speculation is rampant that Libby’s allies will press Bush for one. There is also talk that Bush will be asked to grant prospective pardons for CIA officers and others who played a part in the use of “enhanced interrogation” techniques in the war on terror. According to one legal source, who asked not to be identified because of the issue’s sensitive nature, White House counsel Fred Fielding has warned applicants the president is likely to frown on “political pardons.” But another Washington lawyer, who also asked not to be identified because he represents a pardon applicant, said Bush might be more open to considering pardons for CIA officers because they were executing his policies.

Turley on Blanket Pardons

Law prof Jonathan Turley, I see from my referrer log, agrees with me that a blanket pardon for Bush administration officials involved in torture is a Constitutionally dubious idea:

A “blanket pardon” would raise serious constitutional and criminal questions, though there is some precedent in the Kennedy and Carter administrations. A traditional pardon is a public document naming individuals who are pardoned for specific crimes. One possibility being discussed is the use of a blanket pardon that would not individually name people but cover anyone associated with the unlawful programs. It would be a terrible precedent, if upheld. A president could pardon the world at the end of an Administration — gutting any accountability for criminal acts.

One of his commenters suggests this needs to be addressed through a Constitutional amendment:

I have thought about this since the Scooter Libby disaster, and would propose one that would be something like “A president may not pardon or commute any one in his/her administration for crimes committed during the administration.”

I agree — and think a blanket pardon would touch off a massive, world-wide controversy with unforeseen political costs for the US. It would invite third-country prosecutions of the Pinochet variety.

Blanket Pardon?

Mark Benjamin at Salon thinks Bush is planning a wide-ranging pardon of all in his administration who might’ve been involved in torture. That’s certainly been a possibility all along, and the president’s pardon power is wide-ranging. But I should think it’s at least arguable that it has to be exercised on behalf of specific, named individuals. That makes a long-shot court challenge to an all-encompassing pardon for a class of individuals at least theoretically possible, if someone can be found who has standing. That’s probably a bigger uncertainty than the actual merits.