Preemptive Pardons

Sunday, November 30, 2008

SOME LAWMAKERS and liberal interest groups have begun calling for criminal investigations of Bush administration personnel who crafted or implemented controversial anti-terrorism policies. As a result, President Bush may be contemplating preemptive pardons, including those involving CIA agents and others who carried out "extraordinary renditions" or "enhanced interrogations." There are compelling reasons for the president not to go down that road.

The Bush administration distorted statutes and case law to legally justify interrogation techniques that had long been considered torture under domestic and international law. It relied on sloppy or aggressive legal analysis as a basis for evading judicial review of a warrantless wiretapping program. It has at every turn chosen the most expansive interpretation of the law to rationalize indefinite detentions and deny federal court review to those in custody. It has, in short, determined its preferred course of action first and then stitched together absurd readings of the law to defend those choices.

The proper response to this will be for the next administration and Congress to determine, and it won't be an easy call. We're mindful of the dangers of excessive investigation. These decisions were made by an administration on a war footing, in an effort to protect the country against an unconventional enemy. In many cases Congress gave its active or tacit consent. It could set a harmful precedent and possibly chill advice to future presidents if people are subjected to criminal prosecution for offering unwise counsel.

At the same time, no country should be in the business of concealing its history. Shameful acts took place, and far from everything is known about them. To this day, the trail of decision making from top Pentagon officials to Abu Ghraib perpetrators remains obscured. A bipartisan committee, modeled after the Sept. 11 commission, might obtain definitive answers on how and why antiterrorism decisions were made and executed and by whom. Such an inquiry could answer critical questions about the past, identify anyone who should be held accountable and help future administrations find a better balance.

The one sure thing is that a blanket pardon from Mr. Bush, even if he has the legal right to issue one, would be wrong. It could make legitimate inquiries more difficult, while inflaming partisan outrage and suspicion. President-elect Barack Obama soon will inherit the power of the pardon. If there are line officers who deserve such protection down the road, Mr. Obama will have time enough to make a fair and just decision.

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