A recent batch of presidential pardons has rekindled debate in the United States about whether George W Bush, the president, will, or should, preemptively grant amnesty to people involved in harsh interrogations – and arguably torture – of suspected terrorists.
Several major newspaper editorials and numerous Democratic legislators and legal scholars have in recent days urged the president against defensively forgiving departing and former administration officials who have not been prosecuted for their activities during the “war on terror”, but could be in the future.
“The only practical way of ensuring the executive is staying within the rule of law is to have the possibility and the threat of prosecution available against the people who carry out his orders,” said David Golove, a law professor at New York University. “If you don’t have that threat then you lack any sort of incentive to uphold the rule of law.”
Others argue that talk of such blanket amnesty would be unnecessary if Democratic legislators were not calling for criminal prosecutions of Bush administration employees. They say while policy disagreements are common between administrations and political parties, sending one’s predecessors to jail would be a bad precedent.
“It would be disastrous if they were to do that,” said PS Ruckman Jr, a political scientist at Rock Valley College in Illinois who runs a blog on pardon powers. “It’d be a pretty big can of worms to open.”
Mr Bush last week reduced the sentences of two men imprisoned on drug-related charges and pardoned 14 others. His White House secretary said there was a high probability there would be further pardons before Mr Bush leaves office, but would not elaborate.
The incoming administration of Barack Obama has not signalled any intent to prosecute people involved in interrogations. The Associated Press reported last month that two unnamed Obama advisers said there was little, if any, chance the new administration would take legal action.
Brooke Anderson, a spokeswoman for Mr Obama, recently said decisions about interrogation issues will not be made until the new administration’s full national security and legal teams are in place. She had no update this week after Mr Obama announced his nominations for key national security positions, including the attorney general.
Mr Golove and others noted that the Military Commissions Act passed by Congress in 2006 would probably protect anyone who approved or used at least some of the controversial interrogation techniques – including waterboarding, a form of simulated drowning.
“It’s really not clear that it’s going to be legally possible to prosecute people,” Mr Golove said. “There’s a bit of a point of unreality” in this debate.
Experts agree any such clemency, if granted at all, would not apply to soldiers already convicted of using illegal methods to abuse “low-value” detainees at the Abu Ghraib prison in Iraq, the detention centre at Bagram Air Base in Afghanistan and elsewhere.
Reversing the impression left by such notorious incidents will require bold action from Mr Obama, said Khaled Abou El Fadl, a law professor at the University of California in Los Angeles who specialises in national security law. Mr Fadl, a former Bush appointee to the US Commission on International Religious Freedom, said the new administration must break absolutely from practices criticised as torture with firm directives to the military and the Central Intelligence Agency.
Mr Obama must “as a matter of policy and cultural attitude be very clear… that the United States’ commitment to liberal democracy and human rights is, above all considerations, a fundamental part of our national security and national identity”. Pardons for possible torture would send the wrong message, he said.
The US constitution grants the president power to forgive any federal crime besides his own impeachment and the Supreme Court has interpreted this broadly to include the ability to preemptively pardon individuals before legal proceedings have started.
The power was famously exercised a month after Richard Nixon resigned as president in 1974 amid the Watergate corruption scandals. His replacement, Gerald Ford, pardoned him for crimes against the country he may have committed during his time in office although no specific indictments had been handed down.
Mr Bush could grant pre-emptive pardons to individuals within his administration or to an entire class of people – anyone who approved or used interrogation methods during his two terms, for instance.
His White House, however, “isn’t inclined to grant sweeping pardons” for officials involved in the interrogations, the Wall Street Journal reported late last month, citing multiple unnamed sources.
The report hedged however, saying Mr Bush’s position could still change.
One concern is that such amnesty would essentially be an admission the people it covers broke the law. White House officials have said the practice of waterboarding, for instance, was legal when it was used, although the director of the CIA has said he banned the technique in 2006.
Rock Valley College’s Mr Ruckman, however, said presidential pardons do not necessarily imply guilt.
Those who favour a blanket amnesty argue it would remove any likelihood of a legal investigation prompted by subsequent findings. Also, anyone receiving a pardon would have to give up their constitutional right to refuse to give testimony that might incriminate them – and this might encourage them to speak frankly if a truth commission were convened.
Although the constitution specifically says “Congress may not restrain the president’s power to pardon”, numerous Democratic legislators have come out publicly against amnesty for those involved in interrogations as well as surveillance activities.
Jerrold Nadler, a Democratic congressman from New York, last month introduced a bill calling on Mr Bush to refrain from preemptively pardoning senior administration officials.
Ilan Kayatsky, a spokesman for Mr Nadler, said the non-binding resolution is “more of a warning rather than a real attempt to stop him legally”.
Mr Bush has granted a total of 171 pardons during his nearly eight years in office, according to the AP. Bill Clinton and Ronald Reagan each issued more than twice that many in the same amount of time, with Mr Clinton issuing a large number in his last days as president before turning over the White House to Mr Bush and the Republican Party.