By Ann Woolner
The season of forgiveness is here, and federal felons everywhere are hoping some of it will alight on them.
The period from about Thanksgiving until precisely noon on Jan. 20, is prime time for pardons in a president’s last term.
Junk-bond baron Michael Milken wants forgiveness, ex- WorldCom chief Bernard Ebbers a shorter prison term. More than 2,000 applications have flooded the White House and the Justice Department, most from run-of-the-mill crooks.
Then there are those people not yet charged, much less convicted, who nervously look for pardons, too. Suspecting the future might bring indictments, those within President George W. Bush’s administration who may have broken laws to carry out Bush- Cheney policies could use the boss’s protection.
Beyond the wiretappers, the perjurers, the obstructers of justice in the U.S. attorney firings are those who promoted the notion that torture isn’t torture, and even if it is, it isn’t necessarily illegal.
Will Bush preemptively pardon them? If he doesn’t, what are the chances some of them might wind up behind bars?
It would be pleasant to turn our back on the shame of the recent past, fervently denounce torture as un-American and, with a new president and a world eager to trust him, say it won’t happen again.
There is something to be said for forgiving the excesses of public servants, some of whom were risking their lives, who believed they were protecting their nation even if skating close to the law’s edge.
‘Not Even Past’
The problem with just moving on is, as William Faulkner put it, “The past is not dead. In fact, it’s not even past.”
We can’t expect the enemy to respect anti-torture laws when they capture some of our guys, if we have flouted those same laws.
“It’s a question of protecting future military personnel in future conflicts,” says Scott Horton, a New York lawyer to whom military lawyers turned when they couldn’t get the ear of the civilian leaders at the Pentagon. Now he writes for Harper’s magazine, often on torture.
Nor can we allow to rest undisturbed the precedent Bush set for his successors. We can’t simply forget that an administration assumed it had authority to violate the law and human rights.
Lack of Accountability
Rumsfeld stayed on the job for another two years without so much as a reprimand from the president. It was as if the torture that killed at least one man, humiliated others and brought shame to the U.S. wasn’t sufficient grounds to kick him out of the Pentagon.
There has to be some sort of accountability for what happened. I am not talking about vengeance or political retribution. I mean a somber, thorough look at what happened and how to make sure it doesn’t again.
If, in the course of that, evidence turns up criminal conduct, we can take it from there.
I’m not especially worried about punishing interrogators who stripped detainees naked, forced them into contorted poses for hours at a time, hosed them down and refrigerated them.
Nor am I focused on those who waterboarded Khalid Sheikh Mohammed, for example, to make the al-Qaeda leader think he was drowning, or who drugged and flew suspects to secret Central Intelligence Agency sites or countries like Egypt for more expert torture.
(But I wouldn’t rule out prosecution for anyone up or down the line, depending on what a true investigation shows.)
More than zeroing in on interrogators, I’m interested in those who declared that sort of conduct legal in the face of clear law that forbids it. This crowd includes former White House Counsel Alberto Gonzales, Rumsfeld, some of Rumsfeld’s top aides and a slew of lawyers at the White House, the Justice Department and the Pentagon. One of them, Jay Bybee, who used to run the Justice Department’s Office of Legal Counsel, now works as a federal appeals court judge.
They crafted memoranda that said interrogators could essentially ignore the Geneva Conventions, international treaties and U.S. law barring torture. They said the president can authorize it in time of war, even though he can’t legally. And they laid out a defense for those interrogators who engage in torture, bogus as that argument was.
To accomplish this, they had to reject the wise and persistent counsel of career military lawyers and leaders. These experts insisted time and again that in permitting torture, government lawyers would be breaking the law, making torture more likely for captured U.S. troops, giving the enemy recruiting material and inflicting irreparable damage to the U.S.’s reputation.
Writing a bad legal opinion doesn’t make the author a criminal conspirator. But it’s another matter if a lawyer whose duty is to guide government agents in behaving legally, instead writes memos intended to distort the law and gives cover for illegal conduct.
So far, none of the investigations have led to a definitive account of what happened, though more are under way. If none produce a complete picture, the next president should empanel a commission that will.
Whether through full disclosure or actual prosecutions, there must be acknowledgement of past sins, a determination not to repeat them and accountability for any sinners.