ACLU executive director Anthony Romero argues that an executive pardon by President Obama “may be the only way to establish, once and for all, that torture is illegal.” (Photo: Justin Norman/cc/flickr)
Note: The ACLU’s Anthony Romero suggesting a pardon for US torturers was out of character with the work the ACLU has done to oppose torture, seek prosecution and urge the release of the torture report. His column on pardons shows his frustration with the dysfunction of the US political and legal system. The Congress has done nothing to hold torturer’s accountable, it even agreed to hide their identities before releasing the torture report. President Obama and Attorney General Holder made the very serious (and illegal) error of not enforcing US law against torture by not investigating and prosecuting those who enabled, carried out, ordered and approved torture. The Department of Justice made a serious error by failing to recommend that lawyers who provided legal cover for torture lose their license to practice law. At every step in the process institutions in the United States failed to hold people involved in torture accountable. While I understand Romero’s suggestion that a pardon would indicate torture is illegal and is the only way to do so, this would be an improper decision by President Obama. Obama has used the rhetoric that we are a nation of laws that lives by the rule of law, but when it comes to torture he has not lived up to that rhetoric. Pardons would make him an accomplice to the crimes of torture committed by officials of the US government. Indeed, the failure to prosecute violates international law. As the UN’s Special Rapporteur on torture wrote: “The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.” The Obama administration has a legal responsibility to enforce the law and prosecute those involved in torture from former President Bush and former Vice President Cheney to the lawyers who justified it and those who ordered it and carried torture out. – KZ
In preparation for the much-anticipated release of the Senate’s summary report on CIA torture, the head of one of the country’s leading rights groups on Monday proposed a controversial solution to ensure that such crimes are never committed by the American government again: pardon President Bush and those who tortured.
Published in the New York Times op-ed pages, ACLU executive director Anthony Romero argues that an executive pardon by President Obama “may be the only way to establish, once and for all, that torture is illegal.”
Romero, as head of one of the organizations that has lead the fight to disclose the United States’ illegal torture campaign and demand accountability for those involved, acknowledges that prosecution of those responsible for the systemic abuses in the wake of the 9/11 terror attacks would be “preferable.”
“But let’s face it,” Romero writes, “Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout.”
He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.
Mr. Obama could pardon George J. Tenet for authorizing torture at the C.I.A.’s black sites overseas, Donald H. Rumsfeld for authorizing the use of torture at the Guantánamo Bay prison, David S. Addington, John C. Yoo and Jay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all.
Without such forthright action, Romero argues that Obama would leave open the possibility for government officials to “resurrect the torture policies in the future.” Romero cites historic pre-emptive pardons as precedent for this action: Presidents Abraham Lincoln and Andrew Johnson’s pardoning of Confederate soldiers; Gerald Ford’s pardoning of Nixon after Watergate; and Jimmy Carter’s pardoning of Vietnam War draft resisters.
“Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware,” the op-ed concludes.
Published in advance of the Tuesday release of the executive summary of the Senate Intelligence Committee’s report on CIA torture, Romero’s proposal was met with immediate criticism by fellow rights advocates.
Baher Azmy, who as legal director of the Center for Constitutional Rights has represented numerous U.S. torture victims, wrote in response that a pardon for torture would compromise of our fundamental rights.
“The notion that torturers should be shielded from any consequences for their actions only makes sense in a society in which human rights and constitutional protections have been demoted – no longer our highest values, they are now repeatedly expendable whenever the specter of ‘national security’ is raised,” Azmy said. “Reorienting our institutions toward accountability is a fundamental prerequisite to preventing future criminality.”
Investigative journalist Marcy Wheeler argued that Obama would never do such a thing because he himself has “authorized war crimes,” in the form of drone strikes, “using the very same Presidential Finding as the Bush Administration used to authorized torture.”
And international law professor Kevin Jon Heller wrote that the “fatal flaw” in Romero’s argument is that the Bush administration’s torturers “will continue to believe that they did nothing wrong.”
“No amount of evidence will pierce the veil of their self-delusion — and no pardon will have any effect whatsoever on their own perceived righteousness,” Heller writes.
Others shared their critiques online, arguing that such a move by the administration would be akin to a call for “amnesty” for war criminals.