Monday, December 22, 2008

Pardonable Offenses - From Whiskey Rebels to Jihad Johnny: The Legacy of Presidential pardons

In 1795 President George Washington pardoned members of what came to be known as the Whiskey Rebellion, exercising his right as President to pardon Federal offenders. The Whiskey Rebels took arms against what they believed were unreasonably high taxes on alcohol, and perhaps Washington, who had so recently helped orchestrate the American rebellion against the British, largely under the auspices of unfair taxation, felt sympathy for these men.

Since then countless criminals of all-stripes have applied for Presidential pardons. For the past few years John Walker Lindh and his family have appealed for just such a pardon.

Such a notion has dismayed conservative columnist Michelle Malkin, who is livid at the notion and the audacity of "Jihad Johnny" and his family, and somehow the entirety of the "Left", that an American member of the Taliban would expect such a favor.

If it’s December, it’s time for the Left to throw another shameless pity party for convicted American jihadist John Walker Lindh (aka Suleyman al-Faris, aka Abdul Hamid). Every Christmas season for the last four years, the Taliban accomplice and his parents have asked President Bush to pardon him. This country should save its tears and mercy for the defenders of freedom....

...In Afghanistan, I remind you, Jihad Johnny took up arms with the terrorists. His purpose was to kill Americans and his “reserve of will” accomplished the goal....and upon being captured [he] deliberately and defiantly chose not to tell American CIA officer and former Marine Corps artillery specialist Mike Spann about a planned Taliban prison revolt. Spann was killed in the riot.

It is, without doubt, a tragic story, and Malkin is right to be infuriated. Indeed, the very notion that this man even has the ability to be pardoned is extremely disconcerting. And yet, the best she can muster is a flimsy, "may American traitor John Walker Lindh rot in hell."

Well, okay, that's certainly the "Op" part of an Op-Ed. Nobody could say with a straight face that Malkin's opinions are in any sense of the word diluted. On the other hand, perhaps it would be more interesting to hear some analysis of the risk involved here--in other words, a little less opinion, and a little more dissection of the underlying problem, which isn't Lindh sadly, at least not directly.

Certainly Lindh represents a problem with this nation's disillusioned youth. He is a potential case-study in all sorts of misguided delinquent behavior, from gang activity, to school shootings, to membership in suicide-bombing clubs like Al-Qaeda, or misogynistic theocrats like the Taliban. But he's been captured, and those studies are ongoing sociological quagmires without any likely positive or definitive outcome. Boys will be boys, as the old adage goes.

More to the point is the question of Presidential pardons. The idea that President Bush would even consider pardoning a terrorist is absurd, of course, but then again, he pardoned a cocaine dealer the other day. Anything's possible when a man has the power to sidestep the law so utterly. Clinton pardoned all sorts of crooks and scumbags, including yet more cocaine dealers, embezzlers, and con-men. Potential campaign donors, I suppose, and future political allies.

Article II, Section 2 of the US Constitution states that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." An official Pardon Attorney assists the President in the legality of his pardons, though the framework for such acts of clemency and reprieve seems woefully lax. After all, Nixon had no trouble pardoning that crook Jimmy Hoffa. It wasn't because he was innocent, either. And then, of course, Ford didn't bat an eye when he pardoned that crook Nixon.

At times the pardons do seem just. There are men wrongly accused, or whose sentences were too stringent, or perhaps faced sentences that were largely political. Andrew Johnson pardoned the entire South after the death of Lincoln. This was an important step toward healing the nation, and a just and noble thing to do. It should be noted that nobody pardoned the North, though arguably their crimes against the Constitution were as bad or worse than anything the secessionists did in exercising their right to secede. A pardon for the South's crime of slavery would have been more apt, in a way, though I fear no President can absolve men of such barbarism.

Still, the extraordinary power of Presidential pardons raises countless questions. A whole litany of potential abuses seems to crop up at the end of any Administrations term. So are Presidential pardons necessary? Do they circumvent our legal system too much? Do they undermine justice in this country, or do they provide a necessary safeguard against injustice that only a man as powerful as the President can exercise? Or do they place too much power in the Executive branch?

It's true that only a relatively few people are pardoned by the President. The most frivolous pardoner, FDR, was also the longest serving. He pardoned 3,687 criminals. Also true is the fact that information surrounding Presidential pardons is readily available and public--though the relationships between pardoner and pardoned tend to be less transparent.

Essentially, the problem with Presidential pardons is that they inherently favor prominent figures usually of political persuasions similar to the President who pardons them. It is a power without check or balance, a Constitutional authority that sits above the law, and anything above or outside the law has the potential to do great good, or be greatly abused, and usually the latter prevails. Certainly every President in the past few decades has pardoned people that most Americans consider at the very least controversial, from George Steinbrenner to Marc Rich. President George W Bush has actually pardoned far fewer people than his predecessor, and neither man came close to FDR's staggering figure.

President Bush has pardoned far fewer high profile offenders than Clinton, though with the emerging data on illegal torture activity condoned by the Administration, it is quite possible that more are in the offing. If there is one dark legacy that will stain the history of the Bush Administration it is the top-down orders for the use of torture as a method to interrogate prisoners. It will be blacker still if nobody is held accountable, and could certainly embolden future leaders to take similar steps outside the law.

The very fact that we are not as bad as our enemy, and that even the torture we utilized was not as heinous as the crimes of our enemy, should act not as justification for our actions, but the most pressing argument against them. Torture is simply not an American institution, and regardless of political persuasion or perceived threat, it should never be used, and never condoned, and never pardoned, lest it become one.

Nor should terrorism. John Walker Lindh should remain in jail, and feel lucky that he wasn't executed for his crimes against his country and people, something past generations would have had no qualms doing.

So here we face the true moral dilemma of the Presidential pardon. The terrorist we rightfully leave to spend his days in prison, yet the torturer goes free. The traitor is denied his pardon, but the men who acted as representatives of the American people and then used an abhorrent, un-American practice on the prisoners in their care should be pardoned de facto, sans trial.

Is that there any clarity in this, moral or otherwise? Was this what our Founders intended when they wrote this power into the Constitution?

Like so many of the powers granted to our Executive Branch, Presidential pardons do not have to be abused. It can be hoped that the men and women we elect to serve as our leaders can choose to rebuke the many corrupting powers they are given--to use them in the way they were intended by our Founding Fathers--carefully, and cautiously. Perhaps the model future Presidents should follow is not that of Franklin Delano Roosevelt, but of George Washington, who in eight years of service to his country pardoned only sixteen men. Maybe if our future Presidents look to his actions more often they will stray less from the mission they've been given--to lead us safely and honestly forward as a nation; to preserve our integrity as a people; and to act as our first diplomat to the world.

Somehow pardoning white collar criminals, cocaine dealers, and political officials responsible for endangering our troops through despicable acts of torture, simply doesn't seem to fit into that job description. These are hardly Whiskey rebels.

Somehow I doubt that George Washington would approve.