Recent reporting suggests that President George W. Bush, in an attempt to cap off eight years of failed foreign-policy initiatives, may issue a blanket pardon to administration officials who participated in the formation and use of coercive interrogation tactics during the war on terrorism. Under the administrations view of constitutional and international law, none of these acts were illegal. A presidential pardon would make it difficult to conduct domestic investigations and hold officials responsible for war crimes. Bush is just hoping that when the next administration crashes his party, it wont notice the beer foaming up in the tulip bed.
In 2001, Bush administration officials determined that the Geneva Conventions did not apply to the conflict in Afghanistan and set about creating a new legal architecture for the war on terrorism. Since then, U.S. prisons in Afghanistan, Iraq and Guantanamo Bay, Cuba, have drawn international scrutiny for their treatment of prisoners. Although the administration has continually maintained that any violations of human rights were the work of a few bad apples, executive branch legal memoranda prove that this isuntrue.
Philippe Sands, an international lawyer and scholar at University College London, addressed this issue at Mondays jovially named Human Rights Happy Hour. In his talk, sponsored by UTs Rapoport Center for Human Rights and Justice, Sands argued that a blanket pardon would draw the ire of international courts, possibly resulting in an international investigation. Imagine if Vice President Dick Cheney and former Attorney General Alberto Gonzales could never again travel abroad, lest they, like Augusto Pinochet, be snapped up by foreign police and charged with war crimes. (Incidentally, Cheney and Gonzales have recently been indicted in Willacy County, Texas, in connection with abuses at the immigration detention facility there.)
Trial in international court would be a deeply ironic form of comeuppance for officials who devoted eight years to avoiding the nations international legal obligations. But it would also be another mess. If Bush issued a pardon to all those involved with the interrogation procedures, he would effectively pardon himself. Preventing a full and lengthy domestic investigation, replete with criminal charges where necessary, would impinge on the nations ability to fully come to grips with the abuses of Abu Ghraib and Guantanamo. Instead, this fact-finding mission would be outsourced to someone else. Lawyers in Brussels and at the Hague might be tasked with charging our elected officials with crimes they committed on our soil offenses against U.S. citizens as well as against the victims of torture and indefinite detention.
Ill bet a keg that on Jan. 19, 2009, Bush will issue his blanket pardon and that two days later, ex-administration employees will come forward with their own (now moot) accounts of the detention and interrogation decisions. There have now been four Supreme Court cases on the war, dozens of federal cases and hundreds of habeas corpus petitions. President-elect Barack Obama will decide whether the nation needs a new preventive detention law and new national security courts. Yet justice still hasnt been served. Maybe Obamas message of change can successfully move the nation into the necessary period of national healing without the disruption of criminal investigations. But the nation cant wait to find out who was responsible for our historic abuses and how we can prevent them from reoccurring.