The truth will set you free

What conclusion would you think would follow from the following (courtesy of Sadly, No!)?

Dark deeds have been conducted in the name of the United States government in recent years: the gruesome, late-night circus at Abu Ghraib, the beating to death of captives in Afghanistan, and the officially sanctioned waterboarding and brutalization of high-value Qaeda prisoners. Now demands are growing for senior administration officials to be held accountable and punished. Congressional liberals, human-rights groups and other activists are urging a criminal investigation into high-level "war crimes," including the Bush administration's approval of interrogation methods considered by many to be torture.

I would think: we are a nation of laws.  The accused will no doubt have better legal representation than their alleged victims (someone said something like that once–who was it?), but they'll still have to answer for their deeds.  That's what I would say.  Here's what the author said:

It's a bad idea. In fact, President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers. (It would be unseemly for Bush to pardon Vice President Dick Cheney or himself, but the next president wouldn't allow them to be prosecuted anyway—galling as that may be to critics.) The reason for pardons is simple: what this country needs most is a full and true accounting of what took place. The incoming president should convene a truth commission, with subpoena power, to explore every possible misdeed and derive lessons from it. But this should not be a criminal investigation, which would only force officials to hire lawyers and batten down the hatches.

Couldn't this be said about any criminal act?  What the family needs is a full accounting of what happened–outside of the Rashomon-like perspectivism of a criminal trial–so let's grant the accused immunity and  just hear about how he went about his crimes.

Of course that's nonsense not worthy of the most motivated high school debate student.  People will continue to lie to protect their reputations–even when nothing is at stake.  Criminal trials don't really produce truth anyway, they produce, maybe sometimes, justice.


10 thoughts on “The truth will set you free”

  1. This administration has show nothing but contempt for the rule of law, so it should come as no surprise when one of their professional lickspittles inveighs on those who would dare attempt to hold Bush, Cheney, et al. responsible for their crimes. Furthermore , the supposition that from clemency follows truth, is simply laughable, unless you suppose that upon being granted immunity, our Fearless Leader will pen the epic tome, If I Did It: How I Would have Lied My Way Into War and Destroyed the Constitution

    “For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”  –Thomas Paine, Common Sense

    “[L]aw should be like death, which spares no one.” –Montesquieu, The Spirit of the Laws

    “The law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady undeviating course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men….Tis deaf, inexorable, inflexible.  On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder to the clamours of the populace.” –John Adams, from his summation as defense counsel for the British soldiers accused of murder in the “Boston Massacre.”

  2. Who is this Taylor guy anyway? This seems like a truly awful argument he’s making here.

    Interesting that the real reason he thinks we shouldn’t go through trials is simple political expediency.

    “Of course, if he carries out pardons, Bush will be attacked for cronyism and accused of a cover-up. But one of the main beneficiaries would be the next president. 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. No new president—especially if he turns out to be Barack Obama, who has made such a point of getting beyond partisan bickering—needs that.”

    It seems like we could just generalize this to eliminate all accountability for previous administrations (why stop there? Any prosecution of a politician might lead to “partisan bickering.” Anyone remember Monica?)

    I would think that if we are going to allow for this sort of consequentialist over-riding of the law, then we should look at all the consequences. Just as some Republicans have been pointing out with Freddie and Fannie (O.K. one Republican congressman on Newshour said it I think, but it sounded like a talking point), if people can assume that there are no sanctions for engaging in illegal or  borderline illegal behavior, then they will be more likely to do it. Just as we shouldn’t encourage Banks to engage in risky behavior by bailing them out to easily, so we shouldn’t bail out war criminals, or else we will face bigger problems down the road.

    Short sighted expediency of the sort that this columnist appeals to, is the enemy of a nation of laws. He should just simply be ashamed to have offered this argument.

    Of course he is probably right about this:

    “But any such prosecutions would probably fail. Congress has retroactively amended the War Crimes Act to block any prosecutions for brutal interrogation methods short of torture. And officials could raise a nearly airtight defense of good-faith reliance on advice of counsel—OLC memos on approved methods would be like “get out of jail free” cards.”

    This makes the prosecution possibly imprudent, but that should be decided after lawyers look at the facts of the cases and determine whether there is good reason to prosecute. It is not something that should be decided by outgoing Presidents, even shrouded in the fey (or is that faux?) “high-mindedness.”

  3. O.K. The argument isn’t as awful as I made it out to be, I think.

    1. There is no real possibility of securing convictions.
    2. The only other motivation would be partisan politics.
    3. Partisan politics hinders the government’s ability to confront important social and economic issues.
    4. The President should prevent politically motivated prosecutions.
    5. Pardons will prevent politically motivated prosecutions.
    6. Therefore, the president should pardon everyone.

    The question is whether 1, 2, and 4 are true. It seems to me that even if 1 is true, 2 needs to be justified, and 4 has precedent given to us by President Ford.

    I think we have good reason to wonder whether this argument which dresses a certain cynical real-politik up in high-minded statesmanship would really be the motivation for said pardons. And secondly whether such “high-minded statesmanship” betrays a far too easy and cavalier attitude towards our legal system.

  4. Bah, I should edit my responses to eliminate my knee-jerk dismissals, or at least to be less long-winded.

  5. The main reason for the pardon–an accounting of the truth–is fundamentally ridiculous.  Aside from that, the severe nature of these crimes (as Taylor–who does legal commenting on the News Hour) admits, and the fact that some attempted to give the perpetrators specious legal cover, are all the more reason to pursue the matter in the interest of justice.  People will claim, as they always do, that the result will be unfair and politically motivated, but that’s really a red herring–that’s why our system has the safe guards it does.

  6. Colin, I would disagree with your assessment of the first point. Without a exhaustive investigation- the sort that would be conducted by the U.S Attorney’s office during the course of a trial, that conclusion is premature. An investigation could reveal that individuals within the administration, cognizant of the torture methods being employed, chose not to stop them. That kind of negligence is absolutely crimminal. Without the evidence, how could it be judged as insufficient?

    Futhermore, I would reject the notion that crimminal proceedings should ever be averted because of the perceived liklihood of ‘getting a conviction’.

  7. Steve,
    I think I agree with you that the argument is ultimately not persuasive, but I think not because it fails as a matter of logic, but because, as you say, we should determine guilt or innocence through the proper procedure. Somewhere in there is a premise that I think is false though I didn’t quite make it explicit.

    But, I take it that Taylor’s argument is that because of the way that the law is written there is no way of actually holding anyone accountable through these prosecutions. Therefore, we should avoid them, etc. If the premise is true, then it seems that part of the argument succeeds, whether it justifies pardons I’m not sure.

    I would tend to agree with your suggestion that an investigation is needed prior to any decision about pardons etc, and if the JD needs to grant immunity to some people in order to make their case the decision should be made on those grounds and not by the President.

    I would guess that criminal proceedings are regularly pursued or not pursued based on likelihood of getting a conviction. This seems reasonable to me. If you don’t have the evidence to secure a conviction, or you know that the defendant has an air-tight defense, you would need some other reason to pursue prosecution (personal vendetta? publicity? etc.). In the absence of such a reason, it seems like you would be wasting taxpayer money.

    I think that the accounting of the truth is a secondary aim that becomes relevant once we see that securing convictions is (supposedly) impossible because of the way the law is written and the forms of defense that is available to the defendants. IANAL, of course, so I will assume that Taylor is right about that point. Then, if the prosecution is doomed to failure, what would motivate us to spend time and effort on it? Seems like a reasonable alternative is that we think it’s important to know the truth. If that’s the reason, then, Taylor would be arguing, we can achieve this without the partisan acrimony that would be the likely result of a prosecution, by holding hearings without threat of prosecution (allowing for greater disclosure by potentially implicated individuals).

    If this is Taylor’s argument it doesn’t seem to me to fail as a matter of logic–though where exactly it fails I can’t say. Probably there is some claim about proper procedure, that is being ignored by this argument– something like, the President shouldn’t make decisions to pardon based on this sort of reason. If the relevant investigative or prosecuting authority chooses not to prosecute or to grant immunity then that would seem to be cricket. But there is something worrisome about the President pardoning potential criminals in his own administration. At least, he could wait until the conviction and then “Scooter” them.

  8. Maybe. Going with what’s written, I think those are silly reasons to grant a pardon in advance. The relevant conclusion to draw from allegedly criminal acts committed under color of law is a criminal investigation. The clarity of the law regarding those criminal acts ought is not a relevant impediment. Prosecutors find new and creative ways to prosecute new and creative criminals all of the time. I don’t see how this is any different.

  9. Let’s momentarily set aside the fact that there is no power to “pre-emptively” pardon. What the author is suggesting is essentially that Bush grant these people immunity from prosecution, and I’d like to see how the argument that he could do so would stand up in court. Even the nutbars he has appointed to the Federal bench wouldn’t buy that.

  10. I was wondering about the pre-emptive pardoning, but didn’t get around to looking into what exactly Nixon was pardoned for.

    But what’s the difference with the telecom immunity provision recently passed? Presumably the executive doesn’t have to authority to declare a class of actions immune from prosecution? Or am I misunderstanding the immunity provision that was just passed?

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