Thursday, July 17, 2008

The Undeliverable Gift

This rant raises some interesting questions about "gifts."

The issue at hand is a proposal by Stuart Taylor in Newsweek to "pardon" all those who committed torture under the guidance and legal assurances of the Office of Legal Counsel. The idea, ostensibly, is to establish a "Truth Commission" (Mr. Taylor carefully elides any reference to "& Reconciliation," presumably because that would be too akin to "accountability"). But this commission would be established by the next President, under Mr. Taylor's proposal, after the current President issues a blanket pardon to all those people who did what this President has said was not done.

Anybody see a problem with this yet?

Now, of course, that would utterly defeat the purpose of any "Truth Commission," because the "stick" of the T&R Commissions in South Africa was that the carrot of amnesty was offered ONLY after full and truthful testimony about crimes committed. In other words, confess your crime, and we will give you amnesty. Lie to us, and you go to jail. Mr. Taylor would obviate all that messy "accountability," and just urge pardons all around, passed out like lollipops to persons unknown. There are more than a few legal problems with this scheme, even if a legally illiterate President like George W. Bush wanted to put it into effect.

First, who committed the torture we don't admit was ever committed, oh, except for a few cases of waterboarding we now admit were committed? You see, a pardon is not a public act, a blanket "amnesty" issued to all and sundry, persons known or unknown, named or unnamed. According to Burdick v. United States:

"A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private [italics ours], though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended."
The court there is quoting, with approval, an earlier ruling on the nature of Presidential pardons; the emphasis on "the individual" is mine.

Now do you see the problem? Without a specific individual to whom a pardon can be delivered, there is no pardon. What Taylor is calling for here are blanket pardons, something the President cannot grant. George W. Bush would have to name each CIA agent, each military officer or soldier, each Administration official, involved in any way in acts of torture, and grant to each of them, individually, a pardon. Which means he would have to admit torture was committed, and by persons in his Administration, all the way down to Lynndie England. And then they would have to accept it. Moreover, under Burdick, they would have to present it in court as a defense against charges of torture. That's the ruling in Burdick, and it is still the law today.

But wait, there's more! Burdick also establishes the principal that acceptance of a pardon is acceptance of guilt. You cannot be pardoned for not committing a crime.

Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy. This, at least theoretically, is a right, and a right is often best tested in its extreme.
Now, granted, that is not a legal ruling, and it rests on concepts of honor and shame which have been completely eviscerated in public life in these last 8 years, but the basic premise is still sound: accept the pardon, and you are accepting that your acts were criminal. This, too, is contrary to Mr. Taylor's intent:

President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers.
That "approved by administration lawyers" phrase is what Mr. Taylor imagines is a "Get Out of Jail Free" card. He repeats it more than once, in variations:

The goals should not include wrecking the lives of men and women who made grievous mistakes while doing dirty work—work they had been advised by administration lawyers was legal, and which they believed was necessary to prevent terrorist mass murder.
Pardons would not be favors to criminals. One can argue that officials could have or should have resigned rather than implement questionable legal judgments, but there is no evidence that any high-level official acted with criminal intent.
The officials involved appear to have approved only interrogation methods found legal by administration lawyers, and in particular by the Justice Department’s Office of Legal Counsel (OLC). According to long tradition, the OLC is considered a sort of Supreme Court of the executive branch.
None of which matters a wet snap in a court of law: if you accept a pardon, you are not proving your innocence. You are accepting the fact that you committed a crime, and that while you are guilty, you don't have to face the consequences doled out by the American justice system.

Derrida argues that a gift, to truly be a gift, must be given without knowledge of the giving, or the receiving. Mr. Taylor and Sadly, No, assume pardons work just that way; happily, they don't. Pardons cannot be given in ignorance by the donor, nor received in ignorance by the recipient. As the Court said, a pardon is a "private" act which must be acknowledged publicly, and that acknowledgment means you know you are guilty, and you don't want to face trial. Sadly, No is convinced Mr. Taylor's plan, at least in part, will be implemented. Happily, no, it can't be. Bush cannot issue a blanket pardon, and he won't issue individual pardons because to do so would be to admit that this Administration ignored the clear prohibitions on torture that exist in law in this country, and ran roughshod over our system of government. Besides, there are too many "little people" to pardon. He can't be bothered with such things.

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