The New York Times reported this weekend that “[f]elons are asking President Bush for pardons and commutations at historic levels as he nears his final months in office, a time when many other presidents have granted a flurry of clemency requests.” However the Times noted that despite commuting Scooter Libby’s prison sentence, applicants “should expect to be disappointed” because Bush “has made little use of his clemency power” compared to past presidents.
Except perhaps if you participated in any illegal activity involving the Bush administration’s controversial counterterrorism programs. According to the Times, “several members of the conservative legal community” in Washington D.C. are urging Bush to issue “pre-emptive pardons” to those involved so as to “not be exposed even to the risk of an investigation and expensive legal bills”:
Such a pardon would reduce the risk that a future administration might undertake a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated laws regarding torture and surveillance.
Some legal analysts said Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt. […]
“The president should pre-empt any long-term investigations,” said Victoria Toensing, who was a Justice Department counterterrorism official in the Reagan administration. “If we don’t protect these people who are proceeding in good faith, no one will ever take chances.”
Stuart Taylor, Jr., a constitutional law fellow at Brookings, agrees, saying in a recent Newsweek column that investigations into the Bush administration’s “high level ‘war crimes'” are a “bad idea” and instead called for a “truth commission“:
A criminal investigation would only hinder efforts to determine the truth, and preclude any apologies. It would spur those who know the most to take the Fifth. Any prosecutions would also touch off years of partisan warfare. […]
Absent pardons, pressure to go after GOP “war criminals” would make it very hard to unite Americans of all stripes behind solutions to the many economic and social challenges facing the country.
In fact, the conservative D.C. lawyer circuit may just get its wish. The White House “would not say whether the administration was considering pre-emptive pardons, nor whether it would rule them out.” (HT: Dan Froomkin)