“The quality of mercy is not strain’d,” Shakespeare wrote. “It droppeth as the gentle rain from heaven/Upon the place beneath. It is twice blest:/It blesseth him that gives and him that takes.”
In that spirit, and unconstrained by reelection politics, President Obama used his last week in office to grant clemency to hundreds of federal prisoners, reducing the sentences of some and pardoning others outright.
Obama’s most controversial decision was to let Army Pvt. Chelsea Manning go after seven years of what was supposed to be a 35-year sentence for passing secret documents to WikiLeaks. Military and intelligence professionals were angered at the indulgent signal this might send. Still, damaging as Manning’s leaks might have been, she committed no direct violence, and she’s hardly gotten off scot-free.
The vast majority of Obama’s executive clemency orders affected people considered low-level, nonviolent participants in drug-dealing, plus a few odd cases such as that of baseball great Willie McCovey, whose conviction for failing to pay taxes on money he made signing autographs Obama reasonably wiped from the record.
What was Obama thinking, however, when he ordered the release of Oscar Lopez Rivera? During the 1970s, Lopez Rivera headed a Chicago-based cell of the Armed Forces of National Liberation (FALN), which waged a futile but violent struggle to win Puerto Rican independence.
The FALN claimed responsibility for more than 120 bombings between 1974 and 1983 in a wave of senseless destruction that killed six and injured dozens. In 1981, a federal court in Chicago sentenced Lopez Rivera, then 37, to 55 years for seditious conspiracy, armed robbery, interstate transportation of firearms and conspiracy to transport explosives with intent to destroy government property.
Notably, the seditious-conspiracy charge was not some “thought crime,” as Lopez Rivera’s lawyer has said: The indictment listed 28 Chicago-area bombings, some of which caused injuries, as “overt acts” in support of the conspiracy.
FBI agents discovered dynamite, detonators and firearms at two residences occupied by Lopez Rivera. At trial, a cooperating witness from the FALN testified that Lopez Rivera personally trained him in bomb-making.
So Lopez Rivera is neither a low-level offender nor a nonviolent one. Nor, crucially, is he repentant.
He defiantly challenged the legitimacy of the court that tried him. Shortly after entering federal prison at Leavenworth, Kan., he and FALN members on the outside hatched an escape plan; the FBI foiled it by arresting Lopez Rivera’s would-be helpers, who were armed with guns and explosives. A conviction for that escape attempt added 15 years to his sentence.
In 1999, Lopez Rivera was one of 16 imprisoned Puerto Rican terrorists to whom then-President Bill Clinton offered executive clemency.
He refused, reportedly because Clinton’s offer did not include one of the FALN members who had tried to break him out of Leavenworth.
In addition, Clinton required the Puerto Ricans to renounce violence as a condition of receiving clemency.
Obama’s offer this week came with no such requirement — in puzzling contrast not only to Clinton’s policy in 1999, but also to White House statements that Chelsea Manning deserved clemency because she accepted responsibility and showed remorse.
Not so Lopez Rivera. True, the 74-year-old probably no longer threatens the community; and yes, 35 years is a long time, perhaps even “a sufficient amount of time,” as a senior administration official put it. Lopez Rivera served honorably in Vietnam before undergoing what today might be called “self-radicalization.”
Still, unconditional release, for someone who claimed a right to wage war on the United States and repeatedly put innocent civilian lives at risk?
“I don’t see the guy as a threat,” Rick Hahn, the now-retired FBI special agent who helped investigate the original case against Lopez Rivera, told me. “But people I know who were victims of the FALN say that if the guy would just say he’s sorry, they’d all say, ‘Fine, let him go.’ ”
The voices Obama heeded instead were those of activists including celebrities such as Lin-Manuel Miranda and South Africa’s Bishop Desmond Tutu, the latter of whom said that Lopez Rivera’s only crime was “conspiring to free his people from the shackles of imperial injustice.” Sen. Bernie Sanders (I-Vt.) referred to Lopez Rivera, bizarrely, as “one of the longest-serving political prisoners in history — 34 years, longer than Nelson Mandela.”
The presidential pardon descends from similar power wielded by British kings. Alexander Hamilton wanted it in the U.S. Constitution, partly for use “in seasons of insurrection or rebellion . . . when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”
The FALN’s season of insurrection is long over. But for the group’s victims, as well as for all Americans concerned with the consequences our government applies to terrorists, this last-minute get-out-of-jail-free card for Oscar Lopez Rivera seems anything but well-timed.