Why President Obama Should Pardon Hillary Clinton--and George W. Bush
Before he leaves office on January 20, 2017, President Obama should take two unpleasant, unfortunate but absolutely necessary steps. First, Obama should pardon his former Secretary of State Hillary Clinton because she's violated no laws yet nevertheless faces the likely prospect of indefinite investigation and possible prosecution. Then the 44th President should also pardon the 43rd, because George W. Bush admitted his crimes yet never faced any legal consequences at all. And the President should provide relief to Clinton and make an example of Bush for the very reason Republicans cited back in 2009: to prevent the "criminalization of politics."
Oh, and there's one other consideration. President-elect Trump has already promised that the United States will once again engage in committing war crimes, including waterboarding, killing terror suspects' families and "much worse."
Now, that's not all he promised. During their second debate, The Donald promised Secretary Clinton that under President Trump, "you'd be in jail." Referring to now-concluded the FBI investigation of Clinton's private email server, a probe which produced no charges, Trump promised:
"If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception. There has never been anything like it, and we're going to have a special prosecutor."
Now, most observers took Trump's pledge for what it is: a threat to America's democratic institutions. (For example, see here, here, here and here.) In the modern United States, the very notion of imprisoning political opponents had been beyond the pale. In fact, as Ari Melber pointed out, misuse of his executive power by "interfering with" the Federal Bureau of Investigation "was literally one of the articles of impeachment against Richard Nixon."
Throwing red meat to their rabid followers, Trump's allies have a different reading of history and the law. Running mate Mike Pence called the prosecution promise a highlight of the second face-off between his man and Hillary Clinton:
"I thought that was one of the better moments of the debate. I'm old enough to remember a day when a president of the United States erased 18½ minutes and they ran him out of town. She used high technology to erase 33,000 emails."
Even with election over, the Republicans' never-ending thirst for payback remains unquenched. Campaign manager Kellyanne Conway, who had brushed off Trump's October threat as a "quip," announced last Wednesday that we'll learn Clinton's fate at his hands "all in good time." House Oversight and Government Reform Committee Chairman Rep. Jason Chaffetz (R-UT) declared last week, "It would be totally remiss of us to dismiss [the email investigation] because she's not going to be president." Meanwhile, would-be Trump Secretary of State Rudy Giuliani argued, "you don't want to disrupt the nation with what might look like a vindictive prosecution, even though it might not be" before adding, "on the other hand, you want equal justice under the law." As for President-elect Donald Trump himself, he told CBS 60 Minutes on Sunday, "I'm going to think about it."
For his part, President Barack Obama shouldn't think about it for very long. He should pardon Hillary Clinton despite the fact that she hasn't asked for it, almost certainly doesn't want it and despite Obama's past insistence that clemency will only be given to those formally apply to the Office of the Pardon Attorney. President Obama should simply repeat the same words he offered in defense of not prosecuting the architects of the Bush administration's regime of detainee torture:
"We need to look forward as opposed to looking backwards."
Then Obama should do the same thing for President George W. Bush precisely because America must look back at the crimes Bush acknowledged, ones Donald Trump has boasted he will repeat.
President Bush's endorsement of the use of waterboarding and other enhanced interrogation techniques against 9/11 mastermind Khalid Sheikh Mohammed and other terrorism suspects came during an appearance before a business audience in Grand Rapids, Michigan in June 2010. As CNN reported:
"Yeah, we waterboarded Khalid Sheikh Mohammed," the former president said during an appearance at the Economic Club of Grand Rapids, Michigan, according to the Grand Rapids Press.
"I'd do it again to save lives," he added.
If that sounds familiar, it should. That February, Dick Cheney bragged to ABC's Jonathan Karl is almost the exact same terms:
"I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques..."
And in that same interview, Cheney confirmed that the both Bush legal team that invented the spurious rationale for detainee torture and those implementing it were merely following orders:
"The reason I've been outspoken is because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do."
Besides, former National Security Adviser and Secretary of State Condoleezza Rice explained in 2011 to her students at Stanford University, what President Bush asked them to do was legal by definition. Echoing Richard Nixon's post-Watergate dictum that "when the president does it that means that it is not illegal," Condi announced:
"The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture...The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture." [Emphasis mine]
There are only two problems with the Bush-Cheney tag team defense of waterboarding. The first, as the Senate torture report is expected to once again confirm, is that it didn't save lives. As ThinkProgress noted:
Waterboarding Mohammed 183 times didn't save any lives. In fact, Mohammed told U.S. military officials that he gave false information to the CIA after withstanding torture. Additionally, a former Special Operations interrogator who worked in Iraq has stated that waterboarding has actually cost American lives: "The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001."
The second problem for the Bush torture team is the one President Ronald Reagan raised in his May 1988 signing statement accompanying the Convention Against Torture (CAT). Reagan noted that it "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment." As the Gipper explained in his message to the Senate:
The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.
To put it another way, American and international law doesn't give Barack Obama--or any American President--the choice to decide whether "to look forward as opposed to looking backwards" when it comes to torture practiced by the United States. It's no wonder the UN's CAT Committee expert Alessio Bruni asked Assistant Secretary of State Tom Malinowski "if the delegation could give an example of prosecution of public official violating this legal provision."
As Marjorie Cohn detailed in October 2012, the United States has "a legal duty to prosecute torturers":
The US has a legal duty to prosecute those responsible for torture and abuse, or extradite them to countries where they will be prosecuted. When we ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), we promised to prosecute or extradite those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.
In February 2010, Scott Horton pointed out that the while legal action against members of the Bush administration would be an extremely difficult task, in this case the prosecutors would have one major piece of evidence in their favor:
Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?
As a horrified Horton pondered in amazement:
What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.
Ironically, George Washington University law professor Jonathan Turley thought so as well. Turley, the self-proclaimed crusader against over-reaching executive power, is now leading the House GOP's lawsuit against President Obama implementation of the Affordable Care Act. Writing on February 15, 2010, Turley lamented that President Obama had turned his back on the law:
It is an astonishing public admission since waterboarding is not just illegal but a war crime. It is akin to the vice president saying that he supported bank robbery or murder-for-hire as a public policy.
"Because it would have been politically unpopular to prosecute people for torture," Turley later wrote, "the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point." And, as we'll see below, a Republican talking point at that.
Even he before he was sworn in, President-elect Obama made it clear that the Bush, Cheney and their torture architects need not fear punishment from him:
"We need to look forward as opposed to looking backwards."
From a political and economic perspective, Obama's fear of looking into that rearview mirror was understandable. After all, the economy he inherited from President Bush was in freefall. In the last quarter of 2008, GDP collapsed by 8.9 percent; 2.2 million jobs evaporated in the first quarter of 2009 alone. With the economy requiring immediate action and his ambitious agenda for 2009 before Congress, President Obama was afraid to risk a total political conflagration in Washington by launching the kind of investigation the Bush administration's possible war crimes demanded.
So, Obama signaled to Team Bush and its Republicans allies there would be no accountability for their high crimes and misdemeanors. And he did so by reducing war crimes to a talking point conservatives love most: "criminalizing politics." During his confirmation hearings on January 16, 2009, Attorney General nominee Eric Holder declared, "waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else:
"I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that."
Ultimately, President Barack Obama never prosecuted anyone involved in the design and execution of President Bush's program of detainee torture. While the memos authorizing these potential war crimes have seen the light of day, those who ordered and perpetrated them did not. Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." (Ultimately, none were, as Holder in August 2012 ended his last investigation into two detainee deaths. President Obama went further in seemingly backing away from any legal action against the Bush torture team:
"In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution...
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
But while Obama was counseling reflection, Republicans and their amen corner were promising retribution if the new President did anything more. If Republican war criminals were prosecuted, conservatives warned, Republicans would launch a scorched-earth response to metaphorically burn Washington to the ground.
Powerline's John Hinderaker made that threat in a piece titled, "Criminalizing Conservatism." "Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail," he wrote, adding, "Toward that end, they have sometimes tried to criminalize what are essentially policy differences." In a scathing editorial on April 23, 2009 titled, "Presidential Poison," the Wall Street Journal went on the attack using the GOP's tried and untrue criminalizing politics canard:
Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...
Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...
Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.
But over five years later, no "patriotic official" has been indicted, no judges have been impeached and no professor has been stripped of his academic tenure--not even the one who defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. Two years ago, John Yoo was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee remains on the federal bench. Cheney's legal alchemist David Addington is now creating alternative realities at the Heritage Center. Psychologist James Mitchell, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lost his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." Jose Rodriguez, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who has smeared the soon-to-be released Senate Intelligence Committee report on the CIA torture program despite having never read a word of it. Meanwhile, Dick Cheney appears regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush is free to paint himself in the shower and give speeches to "replenish the ol' coffers."
Now, no one enjoys filling the coffers as much as Donald Trump. And as President, Trump wrote in an April 11 op-ed, he would enjoy something else:
The president of the United States is the commander in chief of our forces and has the ultimate responsibility when it comes to the conduct of American officials gathering intelligence about potential actions harmful to this country. I have made it clear in my campaign that I would support and endorse the use of enhanced interrogation techniques if the use of these methods would enhance the protection and safety of the nation. Though the effectiveness of many of these methods may be in dispute, nothing should be taken off the table when American lives are at stake. The enemy is cutting off the heads of Christians and drowning them in cages, and yet we are too politically correct to respond in kind.
Unencumbered by "political correctness" as well as U.S. and international law, President-elect Trump has been very clear about what his detainee policy would look like.
During the same press conference in which he urged Vladimir Putin's Russia to commit electronic espionage against the United States, nominee Donald Trump declared the Geneva Conventions "out of date" and proclaimed, "I am a person that believes in enhanced interrogation." By now, this didn't constitute news. After all, during a December 2015 GOP presidential debate, Trump promised that killing terrorists' families was just one of the war crimes he would happily commit:
"You look at the attack in California the other day--numerous people, including the mother that knew what was going on," Trump responded. "They saw a pipe bomb sitting all over the floor. They saw ammunition all over the place. They knew exactly what was going on."
"I would be very, very firm with families," he added. "Frankly, that will make people think, because they may not care much about their lives, but they do care, believe it or not, about their families' lives."
When Kentucky Senator Rand Paul warned that Trump's policy would force the United States to withdraw from the Geneva Conventions, Trump responded:
"So they can kill us but we can't kill them?"
Waterboarding ISIS terror suspects and killing their families isn't enough for the would-be 45th President of the United States. As Trump made clear repeatedly, his medieval brand of brutality isn't so much about extracting information as exacting vengeance:
"Well, I'll tell you what. In the Middle East, we have people chopping the heads off Christians, we have people chopping the heads off many other people. We have things that we have never seen before -- as a group, we have never seen before, what's happening right now.
The medieval times -- I mean, we studied medieval times -- not since medieval times have people seen what's going on. I would bring back waterboarding and I'd bring back a hell of a lot worse than waterboarding."
As with so much else advocated by Donald Trump and his most ardent backers, the term "enhanced interrogation techniques" sounded better in the original German:
Before there were "enhanced interrogation techniques," there was verschärfte Vernehmung, (which means "enhanced interrogation techniques") developed by the Gestapo and the Sicherheitsdienst in 1937 and subject to a series of stringent rules. Now, as we have seen previously, there were extremely important differences between the Gestapo's interrogation rules and those approved by the Bush Administration. That's right - the Bush Administration rules are generally more severe, and include a number of practices that the Gestapo expressly forbade.
As Andrew Sullivan pointed out, during the war those German officers who went beyond the verschärfte Vernehmung were punished. And after the war, as Scott Horton helpfully recalled, those who defended their brutality at the Nuremberg trials by saying they were "just following orders" or acting to prevent imminent attacks were put to death.
Now, some of the 21st century American cheerleaders for torture will apparently be joining the next White House and even sitting in the Oval Office. Which is why President Obama should pardon both Hillary Clinton and George W. Bush. To head off both the Republicans' "criminalization of liberalism" and their renewed enthusiasm for torture, America needs to look back to the future.