Pardon Them

I've been suggesting for months now that the best course for Obama on torture is pardon plus commission: a blanket pardon for everyone involved in torture, from the former President of the United States down to everyone involved in actually carrying out the policy, followed by a Truth and Reconciliation Commission to discover exactly what happened and what the consequences were. I have quite a few new readers, and there have been several relevant events this month, so I think it's time to make the full case again.  Here goes...

Look, I understand the point of view of the president.  He came into office with a massive agenda.  As a Democrat, he had no choice but to attempt large-scale health care reform and climate change legislation.  Given the events of the world, he had no choice but to attack the recession, reform banking laws, and fight in Afghanistan and against terrorists who are at war with the United States. He also took office after an unusually inept administration, which means that there are messes all over the place to clean up, some known (Iraq) and some not yet known.  All kinds of stuff.  Hey, President Bush has some foolish scheme to put people back on the moon for no apparent reason!  Do you just let it keep running, costing billions of dollars for no good reason, or do you take on the constellation of entrenched interest groups who want to keep it going?  On top of all that, as a Democrat, he has all sorts of smaller commitments (beyond health care and climate) that various groups in the party care about, and that he had to make promises about in order to get nominated and elected: civil rights, education, regulations of unions..I don't want to list them all, but generally Democrats have a lot more specific policy commitments they need to make to reach the White House than do Republicans.  The key point here is that most of these goals were not really choices; they were a consequence of winning the presidency in 2008 as a Democrat.

Add to that the good chance of unexpected new events that distract time and energy away from his main goals, and I think it's not only understandable but basically commendable that Barack Obama is trying to avoid unnecessary controversies.  Don't talk about race.  Nominate safe candidates (liberals, but not too liberal) to the bench.  Avoid topics that are internally divisive within the party, such as immigration.

From this point of view, Obama's choices are very understandable.  As far as I can tell, the policy goes like this: First, we're certainly not going to torture any more.  Second, whenever we're faced with a tough choice in the future, we'll abide by the law.  But third, we're not looking to pick any fights in this area; we're not going to look back and prosecute anyone who should be prosecuted, and when there are tough calls that do not involve falling on the wrong side of the law, we'll avoid picking fights with the Cheney crowd, even if it means adopting suboptimal procedures or infringing a bit on civil liberties.

And in most issue areas, I'd say that the administration made the right call with that sort of policy.  Sometimes, it's not really worth taking on entrenched interests, whether it's in the military, or agriculture, or health care.  The full power of the presidency might be enough to win those battles, but only at the cost of the larger war.  Barack Obama wasn't elected president to make sure that the medical device industry would never profit from government-supported market malfunctions, or that large agribusiness companies wouldn't be able to game the system.  Those aren't the big fights he needs to fight, and so he's probably correct to duck them.  His plate is more than full already.  And I can see why he would feel that way about torture: he obviously couldn't continue a policy that was morally wrong, illegal, and counterproductive, but it must have been very appealing to do the least amount possible and then move on to fight the big fights.

It was understandable, but I'm more convinced than ever that it just isn't going to work. 

The problem is that it seems increasingly evident that laws were broken.  By a lot of people.  We don't know, for sure, a lot of it, but as I read the evidence it is essentially certain that torture was carried out, and that American law and treaty obligations were broken.  That makes the Obama position, I believe, untenable.  He is simply not allowed to look the other way when it comes to evidence of crimes...and efforts to keep him from having to do so (that is, keeping evidence far away from the places he might normally be looking, so that he doesn't have to look away) are dangerous to his presidency.  It is also impossible for the Justice Department to look away, and efforts from the White House to get them to do so are horribly dangerous to his presidency.

And yet, the original instinct is, as I said, understandable.  An aggressive Justice Department looking at the record might well wind up investigating, and perhaps charging and trying, high officials from the previous administration.  There's no way to do that without the full participation of the administration -- it would be a circus -- and that means giving up some of the focus on all those things that I said, way up at the top of this post, that Obama has little choice about trying to get done. Usually, the solution of muddling through such tough spots is very appealing, but I just don't think it can work.  The emerging evidence supports this claim.  Just in the last couple of weeks, several stories have at least hinted at the tension this policy is causing (or, better, failing to solve).  There's the story of the Gitmo Three, with allegations that the Obama administration failed to conduct a full investigation (this is a complex story, and I don't want to endorse any particular view of it; follow-ups, critiques, and defenses can be found here, here, here, here including the comments, here, and here).  There's the report on Yoo and Bybee (and see here and here).  There's Jane Mayer's story about the KSM trial, Eric Holder, and Rahm Emanuel.  And today there were relevant developments in the Binyam Mohamed trial in Britain.  I'm not saying that the administration did anything wrong in any of these cases.  The point is that the position they are in, both in the White House and over at Justice, is going to continue producing these sorts of tensions.  As much as it makes good political sense to want the whole thing to go away, I'm convinced that the facts make it highly unlikely that it will do so. 

The way out -- the only way out that I can see -- is to offer a full pardon to everyone involved, followed by a commission.  The president should make a statement that is as generous as possible to the motives of the previous administration, while as harsh as possible to the specific acts at issue.  I don't think this is a difficult stretch at all.  In fact, I think it would be pretty popular; I suspect, whatever the polling shows, that Americans aren't all that thrilled with the idea of "walling" people or devising ways to exploit their phobias, but they also don't really want to confront the possibility that their government did these things for sadistic or political reasons.  Obama can claim (whatever the truth actually might be) that he believes that every act was motivated by a sincere and commendable desire to protect the American people, and that whatever mistakes were made were just understandable overreaction in the heat of battle. 

Pardon is preferable from the president's perspective to a road that could involve prosecutions.  It's also necessary to get a Truth and Reconciliation Commission to work (by the way, that's not a name I'd recommend; it should be named after its chair, preferably a distinguished general, with some very dull official name that no one would ever use).  Part of the problem from the point of view of Republicans right now is that for them to oppose torture is to betray their fellow party members to the possibility of prosecution and prison.  It really is understandable (I feel as if I'm using that word a lot here, but with good reason) that they would be reluctant to do that.  Of course, that applies even more to those who were peripherally involved in illegal activities, or were somewhat aware of things that were probably illegal...right now, there is little incentive and quite a bit of danger from coming forward.  Pardon, at least, reduces the danger. 

The best possible scenario for pardon would involve key Bush administration officials accepting the pardon.   As I've said before, I do not think it is entirely far-fetched to think that George W. Bush might be willing to do it.  In this, I agree with Andrew Sullivan, whose open letter to President Bush was one of the most best and most important things I've read in the last several months.  Sullivan's position, if I understand it, is that Bush's participation was probably similar to Ronald Reagan's participation in the Iran/Contra affair: not innocent, but not filled with guilty intent.  Whether that's correct or not (in either case), I think it's possible that Bush might see accepting the (graciously offered) pardon as a heroic thing to do, especially if his father and anyone else who might carry any weight with him and who opposes torture could help him to see it that way (Colin Powell?  Condi Rice?  Bill Clinton?).  Certainly, anything even remotely conciliatory from George W. Bush would be a major break with Dick Cheney (who, obviously, would react to pardon/commission with the usual attacks and all), so perhaps it comes down to whether Bush can be convinced that breaking with Cheney is worth doing.  I do think pardon/commission is the best path even without Bush on board, but without him it probably won't have any addition political or policy benefits.

So, that's the argument.   A pardon, as generous as possible, followed by a commission that would conduct a full investigation, including whenever possible public hearings.  While it's possible that such a commission might find that torture is necessary in extreme cases, I doubt it; the more likely result would be to discredit various stories about the successes of such methods, or more to the point to publicize that the "success" stories have in most cases already been discredited.  But, if there are findings in the other direction, then the commission could recommend changes in law or treaty.  More likely, the commission could establish as fact what happened, and document as plainly as possible that torture and abuse are both morally and practically terrible policy.  There is, however, nothing wrong with stacking the commission with people who begin with a bias against torture.  After all, the United States of America is committed to oppose torture, so one would expect that a government commission would have tend to support that position.

(A key question here, and one that I'm not at all certain about, is the scope of the pardons and of the commission.  Should they be limited to torture?  Include other detainee policies such as rendition?  Be broadened to include possible civil liberty violations outside of detained prisoners?  I don't know).

Pardon, then commission.  I'm afraid that the alternatives, as tempting as they are, will be even worse.