Pardon Them 2

I've been doing this for a month now, and the only thing I've taken email flack for is my suggestion that Obama pardon the torturers. My emailers basically say: "Shouldn't they be held accountable?"

I want to go back to it, because unfortunately things are breaking pretty much the way I expected. With prosecution on the table, the rhetoric from conservatives is breaking strongly in favor of torture. And that's with the best circumstances; all that's being talked about at this point is prosecutions for those who broke the Bush administrations own pro-torture guidelines. I'm not sure I completely buy Dahlia Lithwick's argument that such an investigation isn't much different from none at all, but I do agree with her, and with Andrew Sullivan, that the real issue here isn't about the people that prosecutor John Durham is supposed to go after. The real culprits here are the policy makers, and that goes to the President of the United States and his Vice President. And, yes, as far as ethics goes, I'd personally prefer that they are held accountable.

But this isn't ethics; it's politics. Not (only) electoral politics, but politics as the art of the possible.

The path we're on right now leads to two possible outcomes. One is a handful of low-level prosecutions and nothing for anyone else. I don't believe that yields justice, nor do I think it shields against torture happening again in the future; future presidents would be assused that as long as they can find someone to write CYA memos. That's evil in my view on policy grounds, but also corrupting in terms of the proper operation of the presidency and the executive branch.

The other outcome from the present path is, if anything, even worse. It proceeds with the prosecutor moving up the ladder, and eventually indicting policy-makers. I've said I disagree with Charles Murray that this is a sure public opinion win for Republicans, but what I do think is that the certain result of such indictments is to ensure that Republicans and conservatives in general will double down on torture. We're already seeing that this week, and I have no doubt at all that further prosecutions or threat of prosecutions will only secure the connection between the GOP and explicit pro-torture positions.

Pardon has the promise of breaking that dynamic.

This issue, I think, plays out a lot differently than, for example, health care. The truth is that virtually no one in the Republican party has any stake at all in having health care reform pass. There probably are some Republican politicians who are in fact bothered by problems in the American health care system, and some of those may believe that Obama-style reform (or single payer, or whatever) would make things better. But probably such people are few, and those beliefs are not likely to be central to their personal goals in politics, because Republican politicians don't get into politics in order to help people without health insurance. If what you mainly care about -- what got you started in the first place -- are intrusive regulations, or high taxes, or illegal immigrants, or national defense, then whatever your "true" feelings you aren't going to care very much about health care. And since there are no GOP-leaning interests invested in health care reform, it's no surprise that Republicans can line up (almost) unanimously against reform.

But torture is different. I think there's no question but that a solid group of Republicans don't want to see torture institutionalized as the American way of doing things. Moreover, a lot of Republicans are genuinely concerned about national defense, and realize that, Cheney's bluster aside, torture is no asset to national security. Those Republicans (just from the Senate I'd certainly include Lugar, McCain, Lindsey Graham, and others) are cross-pressured right now, because a whole lot of Republicans don't want to see themselves or their friends get chucked in jail as war criminals. So within the Republican party, their views are going to lose out, and consequently most of them will just keep quiet. And when they're quiet, all the noise is going to come from the crazies. Pardon takes the personal motivation of the pro-torture crowd out of the mix, and pardon done right could elevate the grown ups on this issue within the Republican party. And if grown ups from the party are speaking out against torture, the crazies are likely to move on to some other issue. There's never a shortage.

Would it be unjust to let Yoo, Cheney, Ashcroft, Rumsfeld, and the rest of the gang walk? I suppose so, but I'd certainly trade that for a political establishment, including the next generation of GOP leadership, that returns to the great American principle that torture is an evil. And pardon isn't nothing; pardon is an official, presidential claim that what was done was wrong. It should be accompanied by clear, understandable narratives of exactly what was done, and why it was wrong. As I said, I think it's reasonable for the president to grant that evil was done for understandable motives after the September 11 attacks. But the real imperative here isn't jail time for the war criminals; it's to do whatever is possible to avoid the terrible likelihood that war crimes will become a platform plank of one of our major political parties.

Yes, Obama would risk some fallout from the left if he went ahead with pardon. Yes, a Cheney faction of the GOP wouldn't be silenced. But I think it's far more likely that grown ups in the GOP will stand up to Cheney if prosecutions are off the table, and Obama's going to get flack from the left no matter what he does on this issue. And don't forget that there is an important constituency against torture: the CIA, the FBI, and the armed forces. A constituency which, again, is more likely to rally to the president's side of prosecutions are off the table.

Pardon is a political solution to a serious political problem with terrible potential policy consequences. It's the best way right now to make a clean break with torture as a political issue. I'll continue to believe that Obama should pardon the torturers, from any actual rogue CIA agents all the way up to Dick Cheney and George W. Bush.