Dispatches from the Creation Wars

Resolution Against Preemptive Pardons

Rep. Jerrold Nadler of New York has submitted a resolution urging President Bush not to issue any preemptive pardons at the end of his administration. It isn’t binding law, it’s just a “sense of the House” resolution, but it would bring some public pressure to bear on the subject. There has been much speculation that Bush is preparing to issue a mass pardon to anyone in his administration who might later be found guilty of a crime, especially when it comes to things like torture of detainees. The New York Times reports:

As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?

Such a pardon would reduce the risk that a future administration might undertake a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated laws regarding torture and surveillance.

Some legal analysts said Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt. But several members of the conservative legal community in Washington said in interviews that they hoped Mr. Bush would issue such pardons — whether or not anyone made a specific request for one. They said people who carried out the president’s orders should not be exposed even to the risk of an investigation and expensive legal bills.

“The president should pre-empt any long-term investigations,” said Victoria Toensing, who was a Justice Department counterterrorism official in the Reagan administration. “If we don’t protect these people who are proceeding in good faith, no one will ever take chances.”

Emily Lawrimore, a White House spokeswoman, would not say whether the administration was considering pre-emptive pardons, nor whether it would rule them out.

“We are going to decline to comment on that question since it is regarding internal matters,” Ms. Lawrimore wrote in an e-mail message.

I take Victoria Toensing about as seriously on this (or any other) issue as I would take one of the Pussycat Dolls. I find it amusing that so many otherwise law-and-order conservatives think it would be just horrible to follow the law in these cases.