A reader writes:
Your reader's suggestion that President Obama pardon Bush, Cheney, and Rumsfeld has a certain appeal, but it is flawed. In Burdick v. United States, the Supreme Court held that (1) a pardon carries an "imputation of guilt", and (2) a pardon cannot be forced upon a person and can be rejected by such person. I can't see Bush, Cheney, or Rumsfeld ever accepting explicitly or implicitly such an imputation of guilt. And so it is very likely that they would reject a presidential pardon unless accompanied by a real threat of US prosecution for war crimes. Because President Obama clearly has decided against such a prosecution, the likely result from an attempted pardon would be to hand the war criminals a public relations victory.
Even if I agreed that Bush could and should be pardoned, there is a major reason why he can't be: "war crimes" isn't limited to domestic prosecution.
This is especially the case considering that some of the crimes took place in Iraq, Afghanistan, Italy, Germany, various places in Eastern Europe, etc. While multiple attorneys and lawyers have recommended that Bush staffers never leave US soil, that won't stall prosecution in abstentia for war crimes. And a presidential pardon would signal to the rest of the world, including places with less-than-savory dictators, that the ruler of a nation is above the law if he wants to be. The reaction from Europe and many other democracies, which hold that no one is above the law, would all but be forced to prosecute for war crimes.
The reader who suggests that Obama grant a blanket pardon to Bush, Cheney, and all others who ordered or enabled war crimes has taken entirely the wrong lesson from Gerald Ford's pardon of Nixon.
First and foremost, Nixon never acknowledged any disgrace or admission of wrongdoing. His stated reason for resigning was to spare the country the trauma of a prolonged impeachment trial which he knew he would lose. He spent the rest of his life rehabilitating himself as a statesman, successfully building an image in Republican circles of a great man brought low by Democratic political tricks - not by his own evil.
Likewise, of all those who worked for Nixon, only John Dean openly admitted wrongdoing. The rest either denied their crimes or, like G. Gordon Liddy and later Dick Cheney, denied that they were crimes at all. There was no "full and potentially cathartic investigation" - indeed, the only reason we know as much about Watergate as we do know is that there were criminal trials for many principals both before and after Watergate.
Of course Ford's pardon of Nixon proved to be an enabler to these people in the future. By pardoning Nixon, Ford made the adage a practical truth: "when a president does it, it's not illegal." The pardon set a precedent - presidents, and ex-presidents, would be protected from prosecution for anything they did in office. Cheney and his ilk looked at the pardon and thought: We can get away with it. We can get away with ANYTHING.
(Photo: US Secretary of Defense Donald Rumsfeld, US President George W. Bush and US Vice President Dick Cheney attend the Armed Forces Farewell Tribute to Rumsfeld at the Pentagon December 15, 2006 in Arlington, Virginia. Praise was heaped on the outgoing secretary by Bush and Cheney, and Rumsfeld used his farewell speech to call for an increase in military spending. By Chip Somodevilla/Getty Images.)
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