Michael C. Dorf

Why President Obama Should Consider Pardoning those Who Designed, Authorized, and Carried Out the Bush Policy of Abusing Detainees

By MICHAEL C. DORF


Wednesday, April 22, 2009

Last week, the Justice Department released four previously secret memoranda that the Office of Legal Counsel ("OLC") under President Bush had issued to the CIA. The memos provided an ostensible legal basis for abusive interrogation techniques that were used, during the Bush Administration, against detainees suspected of terrorism. In a statement accompanying the memos' release, Attorney General Holder also announced that the Obama Administration would not bring federal criminal charges against government officials who acted in reliance on the memos, and would defend them against any international charges and civil lawsuits. Interestingly, Holder's statement did not explain what, if anything, the Administration plans to do with respect to the people who designed the policy and wrote the memos.

At least six of those people—David Addington, Jay Bybee, Douglas Feith, Alberto Gonzales, William Haynes II, and John Yoo—face the possibility of criminal charges being lodged against them by Spanish investigating judge Baltasar Garzón and by others elsewhere overseas. Meanwhile, some American commentators (mostly on the political left) have argued that these and other current and former government officials should be charged criminally in a U.S. court. Yesterday, President Obama told reporters that he would leave the decision whether to bring charges to the Attorney General "within the parameters of various laws."

Criminal charging decisions are indeed partly a matter of reading the applicable laws. But prosecutors, including the Attorney General, also have discretion, and it is hard to imagine that political considerations would not play some role in the determination whether to seek indictments arising out of the detainee abuse. As I shall explain below, those political considerations make it unlikely that anybody will face domestic criminal charges for torture.

If the Obama Administration ultimately decides not to initiate prosecutions against anybody who designed, justified, or carried out the Bush Administration's program of detainee abuse, then it ought to consider issuing pardons to all such persons. As I will explain below, doing so would at least have the virtue of acknowledging that wrongs were committed.

The Memos' Justification for Detainee Abuse

Even before the latest release of memos, it was widely known that the Bush Administration had used waterboarding and other coercive techniques in an effort to extract information from detainees. The newly-released memos are nonetheless significant because they show both how systematic the Bush program of cruelty was, and the lengths to which the Administration went to justify it. The techniques for which the Administration sought legal authority included: nudity; facial immobilization during interrogation; face slapping; abdominal slapping; cramped confinement; stress positions; water dousing; prolonged sleep deprivation; and waterboarding.

Whether waterboarding legally constitutes torture has been the subject of vigorous debate in recent years. In order to provide a negative answer for waterboarding and the other interrogation techniques, the OLC memos adopt one basic legal strategy: They emphasize both the subjectivity and the extreme nature of the language used in the federal statute providing criminal penalties for torture. For instance, one of the memos italicizes such statutory terms as "specifically intend," "severe," "prolonged," and "profoundly," and goes on to argue that if performed under the right circumstances, each of the listed practices could be said not to qualify as torture.

A great many experts in international human rights law and domestic criminal law have disagreed with that conclusion, at least with respect to some techniques. Yet even if the OLC memos could be credited as correct (or plausible) in defining torture down, there is a further complication: Whereas domestic criminal law only applies to torture, U.S. treaty obligations also forbid "cruel, inhuman, or degrading treatment or punishment." And all or most of the techniques listed in the memos pretty clearly violate the common-sense meaning of this obligation.

Accordingly, perhaps the most disturbing aspect of the Bush OLC memos is a point that is unstated. Despite containing such general protestations as "torture is abhorrent both to American law and values and to international norms," the Bush OLC memos fundamentally ask the wrong question. Instead of asking whether the listed practices are legal, the memos instead focus on whether American personnel who use the listed methods can be criminally prosecuted. Because the international legal norm is broader than the scope of criminal liability, the conflation of these two distinct issues allowed the memos' authors to purport to find legal authority for forbidden acts.

The memos' authors were, of course, aware of the broader prohibition of cruel, inhuman or degrading treatment. They tried to get around it through a dubious two-step dance: First, they noted that the Senate ratification of the applicable international treaty included a reservation to the effect that it only forbade practices already forbidden by U.S. constitutional law. In ratifying the U.N. Convention Against Torture, the Senate added the reservation that the U.S. would understand "cruel, inhuman, or degrading treatment or punishment" to mean "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." But of course, nearly all of the techniques described in the memos would be constitutionally impermissible if used against Americans held in jail or prison. That is where step two comes in: The memos next note that under domestic precedents, the listed constitutional protections do not apply to aliens outside the United States. Thus, they conclude, the treaty does not protect aliens outside the United States against cruel, inhuman, or degrading treatment.

Yet the more natural reading of the Senate reservation is that it applied to the substance of what was forbidden by the Fifth, Eighth, and Fourteenth Amendments, not to the geographical applicability of the those provisions' prohibitions.

To be sure, the memos offered other rationales for limiting the applicability of the prohibition on cruel, inhuman or degrading treatment, but the overall spirit remains the same: The fundamental goal of the memos was to establish grounds for evading, rather than complying with, the international obligations of the United States.

One need only imagine how the U.S. would justifiably react were a foreign power to subject Americans to any of the techniques described in the memos. Such a scenario illustrates the point that the memos authorized methods of interrogation that are repugnant to civilized nations.

The Rationales Behind Non-Prosecution

Why, then, might the Obama Administration decide not to proceed with prosecutions against the people who designed, authorized, and carried out the abusive policies? The answers will likely differ for different categories of personnel.

Field-level CIA agents (and others) who implemented the interrogation policy were the most directly involved but, in an important sense, the least culpable. They were, after all, following, rather than giving, orders. Although no one can escape responsibility for "just following orders," in this instance, as Attorney General Holder's statement notes, the individual field officers were given written assurance, by people who appeared to be highly qualified, that the interrogation techniques were legally permissible. In a sufficiently extreme case, even that sort of assurance should not be enough to prevent criminal responsibility, and one can make the argument that some of these techniques do present sufficiently extreme cases. At the very least, however, one would think it only fair to first prosecute those who designed and authorized the policy before going after the field officers.

What about the lawyers? They certainly made very bad legal arguments. The fundamental error of the Bush OLC (except when it was briefly headed by Jack Goldsmith) was that the lawyers misunderstood their role, seeing it as similar to that of a criminal defense attorney, who is obligated to make every colorable argument to exonerate his client. But an OLC lawyer is not a participant in an adversarial process, and so has a responsibility to give the President balanced advice. In practice, of course, government lawyers--like private lawyers advising clients in a non-adversarial context--have some tendency to tell the principals what they want to hear. However, an OLC lawyer must make a concerted effort to check that tendency. The Bush OLC lawyers either did not make that effort, or failed miserably in it.

That said, and even recognizing that providing legal justifications for illegal acts can sometimes make lawyers complicit in those acts, it could be difficult to obtain a conviction of the Bush lawyers for actually committing torture. To employ a somewhat tendentious analogy, it is easy to see how a mob boss is guilty of murder for ordering a hit; in contrast, the mafia lawyer who advises the don about how to get away with his crimes may be guilty of something, but it is probably a lesser offense.

Accordingly, if anyone is going to be prosecuted for violating the criminal law in connection with detainee abuse, it ought to be the high-ranking officials who designed the policy (some of whom are lawyers). Yet, the Obama Administration little to gain politically from pursuing such criminal prosecutions. Why? Because doing so would be perceived by many as vindictive and backward-looking, at a time when the President wants to focus on his own agenda.

Raising the Stakes of Politics

There is, in addition, a principled basis for not prosecuting the architects of the Bush detainee abuse program: In the long run, to do so could be bad for our democracy.

In non-democratic regimes and fragile democracies, politics is an extremely high-stakes affair because those who win power often use that power to confiscate the property of, imprison, or even kill those who formerly held power. This is why transitions from one government to the next are so fraught outside of stable democracies.

Thus, one of the great, but often unnoticed, virtues of democracy is that it lowers the stakes of politics. Electoral losers know that they will be permitted to enter private life, or regroup and fight another political battle; conversely, winners know that they could lose the next election. Because electoral defeat is a setback but not a personal disaster, politicians across a broad swath of the ideological spectrum stay involved in the system, rather than literally attacking each other.

Prosecution of political opponents threatens to raise the stakes of politics and thus to undercut this important feature of democracy. Lengthy trials of Bush Administration officials for authorizing torture would inevitably be perceived as partisan, and would likely lead to a further cycle of recriminations. One need not think that the U.S. would actually slip into dictatorship to worry about these effects. In this sense, if President Obama or Attorney General Holder makes the political judgment that there is no angle to be found in prosecutions, that decision could also be fairly characterized as a matter of principle.

The Benefits (and Costs) of Pardons

It is therefore quite possible that no one will be prosecuted for the detainee abuses, even though Attorney General Holder's statement only purports to eschew prosecution for the field officers. And that, in turn, raises an important question about accountability. Will there be no consequences at all for people who violated international law and American ideals?

In fact, there are likely to be at least some consequences. For instance, Congress will hold hearings about detainee abuse, although the same political calculations that have led the Obama Administration not to prosecute the authors of the Bush policy will likely be at work for the leadership in Congress.

Still, much of the publicity itself has been harmful to the careers of some of the Bush lawyers. Alberto Gonzales has had difficulty finding a job, a truly remarkable predicament for a former U.S. Attorney General, even in a severe recession. John Yoo finds himself a virtual pariah in legal academia. Judge Jay Bybee hears repeated calls for his impeachment. And none of the Bush officials involved in detainee abuse is likely to use his passport again.

Still, these inconveniences hardly rise to the level of prosecution for war crimes. And for that reason, if there are to be no prosecutions, then I would urge the Obama Administration to consider the counter-intuitive response of pardoning everyone involved. The approach is counterintuitive because a pardon may suggest that the people pardoned did nothing wrong. However, it is possible to make clear that the conduct in which the pardon recipients engaged was reprehensible, but that the country's need to move on makes it impracticable to proceed with individual trials. Certainly that was the spirit in which President Ford intended his pardon of President Nixon, and in which President Carter intended his pardon of Vietnam War draft evaders.

By pardoning, rather than merely not prosecuting, the architects of and participants in the Bush policy of detainee abuse, the Obama Administration could send a signal that offenses were, in fact, committed. Of course, pardons will not satisfy those who believe--with considerable justification--that prosecutions would be the better course. But pardons would formalize what appears to be the best explanation for the potential Obama policy of simultaneously repudiating the conduct and seeking to reconcile the country.



Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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