Source: http://www.nytimes.com/2014/12/09/opinion/pardon-bush-and-those-who-tortured.html
he Opinion Pages | OP-ED CONTRIBUTOR
Pardon Bush and Those Who Tortured
By ANTHONY D. ROMERO DEC. 8, 2014
BEFORE President George W. Bush left office, a group of conservatives
lobbied the White House to grant pardons to the officials who had planned
and authorized the United States torture program. My organization, the
American Civil Liberties Union, found the proposal repugnant. Along with
eight other human rights groups, we sent a letter to Mr. Bush arguing that
granting pardons would undermine the rule of law and prevent Americans
from learning what had been done in their names.
But with the impending release of the report from the Senate Select
Committee on Intelligence, I have come to think that President Obama
should issue pardons, after all — because it may be the only way to establish,
once and for all, that torture is illegal.
That officials at the highest levels of government authorized and
ordered torture is not in dispute. Mr. Bush issued a secret order authorizing
the C.I.A. to build secret prisons overseas. The C.I.A. requested authority to
torture prisoners in those “black sites.” The National Security Council
approved the request. And the Justice Department drafted memos providing
the brutal program with a veneer of legality.
My organization and others have spent 13 years arguing for
accountability for these crimes. We have called for the appointment of a
special prosecutor or the establishment of a truth and reconciliation
commission, or both. But those calls have gone unheeded. And now, many of
those responsible for torture can’t be prosecuted because the statute of
limitations has run out.
To his credit, Mr. Obama disavowed torture immediately after he took
office, and his Justice Department withdrew the memorandums that had
provided the foundation for the torture program. In a speech last year at the
National Defense University, Mr. Obama said that “we compromised our
basic values — by using torture to interrogate our enemies, and detaining
individuals in a way that ran counter to the rule of law.”
But neither he nor the Justice Department has shown any appetite for
holding anyone accountable. When the department did conduct an
investigation, it appeared not to have interviewed any of the prisoners who
were tortured. And it repeatedly abused the “state secrets” privilege to derail
cases brought by prisoners — including Americans who were tortured as
“enemy combatants.”
What is the difference between this — essentially granting tacit pardons
for torture — and formally pardoning those who authorized torture? In both
cases, those who tortured avoid accountability.
But 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. Were our
military to capture a senior leader of the Islamic State who was believed to
have valuable information, some members of Congress would no doubt
demand that our interrogators use precisely the barbaric and illegal methods
that the Obama administration has disavowed.
The Obama administration could still take measures to hold
accountable the officials who authorized torture. Some of the statutes of
limitations have run out, but not all of them have. And the release of the
Senate’s report provides a blueprint for criminal investigations, even if that’s
not what the intelligence committee set out to do.
But let’s face it: Mr. Obama is not inclined to pursue prosecutions — no
matter how great the outrage, at home or abroad, over the disclosures —
because of the political fallout. He should therefore take ownership of this
decision.
authorized conduct that violated fundamental laws, and compromised our
standing in the world as well as our security. If the choice is between a tacit
pardon and a formal one, a formal one is better. An explicit pardon would
lay down a marker, signaling to those considering torture in the future that
they could be prosecuted.
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.
While the idea of a pre-emptive pardon may seem novel, there is
precedent. Presidents Abraham Lincoln and Andrew Johnson pardoned
Confederate soldiers as a step toward unity and reconstruction after the Civil
War. Gerald R. Ford pardoned Richard M. Nixon for the crimes of
Watergate. Jimmy Carter pardoned Vietnam War draft resisters.
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.
Anthony D. Romero is executive director of the American Civil Liberties Union.
he Opinion Pages | OP-ED CONTRIBUTOR
Pardon Bush and Those Who Tortured
By ANTHONY D. ROMERO DEC. 8, 2014
BEFORE President George W. Bush left office, a group of conservatives
lobbied the White House to grant pardons to the officials who had planned
and authorized the United States torture program. My organization, the
American Civil Liberties Union, found the proposal repugnant. Along with
eight other human rights groups, we sent a letter to Mr. Bush arguing that
granting pardons would undermine the rule of law and prevent Americans
from learning what had been done in their names.
But with the impending release of the report from the Senate Select
Committee on Intelligence, I have come to think that President Obama
should issue pardons, after all — because it may be the only way to establish,
once and for all, that torture is illegal.
That officials at the highest levels of government authorized and
ordered torture is not in dispute. Mr. Bush issued a secret order authorizing
the C.I.A. to build secret prisons overseas. The C.I.A. requested authority to
torture prisoners in those “black sites.” The National Security Council
approved the request. And the Justice Department drafted memos providing
the brutal program with a veneer of legality.
My organization and others have spent 13 years arguing for
accountability for these crimes. We have called for the appointment of a
special prosecutor or the establishment of a truth and reconciliation
commission, or both. But those calls have gone unheeded. And now, many of
those responsible for torture can’t be prosecuted because the statute of
limitations has run out.
To his credit, Mr. Obama disavowed torture immediately after he took
office, and his Justice Department withdrew the memorandums that had
provided the foundation for the torture program. In a speech last year at the
National Defense University, Mr. Obama said that “we compromised our
basic values — by using torture to interrogate our enemies, and detaining
individuals in a way that ran counter to the rule of law.”
But neither he nor the Justice Department has shown any appetite for
holding anyone accountable. When the department did conduct an
investigation, it appeared not to have interviewed any of the prisoners who
were tortured. And it repeatedly abused the “state secrets” privilege to derail
cases brought by prisoners — including Americans who were tortured as
“enemy combatants.”
What is the difference between this — essentially granting tacit pardons
for torture — and formally pardoning those who authorized torture? In both
cases, those who tortured avoid accountability.
But 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. Were our
military to capture a senior leader of the Islamic State who was believed to
have valuable information, some members of Congress would no doubt
demand that our interrogators use precisely the barbaric and illegal methods
that the Obama administration has disavowed.
The Obama administration could still take measures to hold
accountable the officials who authorized torture. Some of the statutes of
limitations have run out, but not all of them have. And the release of the
Senate’s report provides a blueprint for criminal investigations, even if that’s
not what the intelligence committee set out to do.
But let’s face it: Mr. Obama is not inclined to pursue prosecutions — no
matter how great the outrage, at home or abroad, over the disclosures —
because of the political fallout. He should therefore take ownership of this
decision.
authorized conduct that violated fundamental laws, and compromised our
standing in the world as well as our security. If the choice is between a tacit
pardon and a formal one, a formal one is better. An explicit pardon would
lay down a marker, signaling to those considering torture in the future that
they could be prosecuted.
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.
While the idea of a pre-emptive pardon may seem novel, there is
precedent. Presidents Abraham Lincoln and Andrew Johnson pardoned
Confederate soldiers as a step toward unity and reconstruction after the Civil
War. Gerald R. Ford pardoned Richard M. Nixon for the crimes of
Watergate. Jimmy Carter pardoned Vietnam War draft resisters.
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.
Anthony D. Romero is executive director of the American Civil Liberties Union.
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