The benefits of a Bush preemptive blanket pardon for torture
Liberals have warned of the possibility of Bush utilizing (some might say abusing) his Presidential discretion to issue preemptive pardons to shield anyone involved in "enhanced interrogation" techniques, including the high-level members of his administration who approved the policies, from future criminal prosecution. Such a scenario generates understandable outrage from some liberals who feel this would be tantamount to legally excusing war crimes, while some conservatives feel it is only fair to protect the executors of a policy for which Bush himself must take ultimate responsibility. I propose that blanket pardons would serve a positive purpose.
IMHO the arguments from the left about the dangers of excusing war crimes and from the right about not punishing people for doing their jobs both miss the point. I think it's fair to categorize waterboarding as torture following the usual definitions thereof, although I'm open to opposing arguments. However, this simply does not rise to the level of war crimes for which trials are typically held. One can acknowledge the historical context without excusing the designed brutality of these techniques. This is not to say that there isn't a case for criminal prosecution; I believe there is, but it is not a straight-forward slam-dunk matter of locking up evil wrongdoers.
At the same time the "only following orders" defense is self-evidently shallow. There are many actions available to someone tasked with implementing a policy of questionable legality and morality; concerns can be communicated to supervisors, alternatives proposed, and there is always the option to refuse to participate. Certainly this might result in substantial inconvenience, but often doing the right thing is difficult, and that a refuser would not typically incur even heavier costs here points to the gray nature of the issue.
That said, these are the positive outcomes I see resulting from a Bush preemptive pardon:
1. There will be an outcry and a corresponding desire to codify and detail exactly what is and isn't permitted, which branches should follow what practices, and what the consequences are for failing to abide by regulations. This debate began with the MCA and continued with the question of application to the CIA (more here , and see also our own discussions, e.g. here ) but in my opinion there is continued uncertainty, perhaps deliberately so, as to what practices are legal (let alone moral). Let's not sweep this under the rug, we should either justify and embrace techniques as necessary and ultimately non-destructive (physically or mentally), or else we should repudiate and reject them as illegal and immoral torture.
2. It would provide legal cover for borderline cases, along with cover for those who perhaps ought to face charges. The sticking point here is that prosecutions of high-level officials is difficult; there is some vagueness in memos or instructions (again, perhaps deliberately so), there are non-absurd LiveSex free web cam girls arguments as to legal justification, and of course there are expensive lawyers waiting to proclaim their clients patriots just trying to protect their country. It would be the people at the bottom of the pyramid who would lack such protections, even though they arguably deserve it more. The military is not even close to perfect when it comes to investigating itself, but there is a process in place for weeding out genuine bad apples (ditto for institutions like the CIA, I assume). Those people who did what they were commanded to do with more-or-less good intentions may have made a mistake, and perhaps should face consequences such as losing their jobs. But criminal prosecutions at this level are probably not the best answer.
3. It would draw a bright-line between the past and the future. There would be an immediate "what's done is done" feeling that might have several beneficial aspects. From a purely political standpoint, such an action by Bush would give the incoming administration the best of both worlds: an opportunity to express their outrage as to the abuses that occurred and were sanctioned under Bush's watch, and at the same time the ability to move on and not get mired in backwards-looking momentum-killing prosecutions that would, fairly or not, have an air of revenge about them. It would solidify international opinion behind Obama, which could be of significant practical use. Conservatives could either view the pardons as a victory of sorts or as a mistake by the Bush administration, but either way they would not be stuck fighting the partisan battles begun under Bush and could concentrate on revitalizing their party and offering a strong conservative vision for the country.
4. It might lead to some restrictions on usage of Presidential pardons, and I think that would be a good thing. It's not clear to me how such restrictions could be given the constitutional force of law, but presuming that hurdle could be overcome (either by a friendly SCOTUS interpretation or amendment) I don't see any reason not to put common-sense limitations in place. For example, preemptive pardons of anyone serving in the administration of the President could be prohibited. The idea behind Presidential pardons, as I understand it, is to provide a mechanism to help ordinary people who were unfairly convicted or received sentences grossly disproportionate to their crime, but for whatever reason (and goodness knows there are plenty of them) don't have immediate legal recourse to appeal through the courts. The outrage over Clinton's pardon of Rich, and then over Bush's pardon of Libby (edit: technically Bush only commuted Libby's prison sentence), have already created a receptive public climate for changing this system.
This doesn't cover the negatives, which are certainly present. What's your opinion?