Pardon Them: A Proposition (With Many Caveats) Regarding Torture (Updated):
Come on - let's play a game: Let us believe, and why not, the President when he says that no one at the CIA will be prosecuted for the torture that received the Good Bushkeeping seal of approval. And let us take it further: let's say that the likelihood of actual criminal charges being brought by the Justice Department against John Yoo, Steven Bradbury, or Jay Bybee is small to nil. And, of course, there's virtually no chance that the actions of the Bush/Cheney/Gonzales axis of perversity will ever be fully revealed in our lifetimes.
Presume all of this for a moment. Put aside what you desire, like a lover who has gotten an emergency text just before laying your partner, to contemplate the very reality of the situation. To go after the Bush administration, the torturers and their enablers, in any way, shape, or form, risks war with the Republican party at this point. And until 2010, when (the Rude Pundit's predicting this here), barring any Congressional scandals, Democrats will own the Senate, too, Republican opposition is a reality. Meanwhile, here in the Leftyburg, we're screaming and waving our hands for something to be done to these bastards. What's Obama to do?
Again, this is a game, a little word play, some Truth or Dare just to get your clothes off, Battleship. Nothing serious. Just a bit of fun with our beliefs.
So, assuming all of this, there's one simple solution for the Obama administration: Pardon them. All of 'em. Everyone involved. As many by name as he can, up to and including Bush. A pardon for any crimes having to do with the treatment of detainees.
Follow the ball of logic that's bouncing around the room like a tweaking meth head who can't figure out how to open the lock on the bathroom stall: As the Bush administration was wheezing its last horrible, phlegmy breaths, a good deal of the pardon talk, when not centered on Scooter Libby, was about whether or not Bush would pardon those involved in torturing detainees. But he didn't. Because pardoning them would be tantamount to admitting that a crime had been done. And Bush wasn't going to admit error at the very end of his agonizingly epic delusion of a presidency.
But context is everything, no? Keeping within the game that we're playing, with what Obama has said, with what Republicans want, with what people who give a shit about the law want, with the fact that two-thirds of the public want an investigation into torture, a pardon now becomes a trial, conviction, and sentence all at once. Because, you see, Bush was right: you can only pardon someone for a crime if a crime has been committed.
Outrageous, you might shout if Obama actually signed the pardons. And you wouldn't be wrong. But look at what the possibilities are:
Obama could issue a conditional pardon, one that requires the recipients to testify fully, under oath, about the whats, whys, and whos of the torture programs. We could have Patrick Leahy's truth and reconciliation committee up and running.
Those who accept any kind of pardon would be tacitly admitting that they committed crimes. They could be compelled to testify even without the conditions being placed on the pardon. Those pardoned would carry that mark with them the rest of their lives. Yeah, it's not the same as being waterboarded, but within the context of a no-prosecution promise, it's something. And it doesn't preclude other extralegal punishments, like disbarment, for instance.
And if, say, some of those named were to reject the pardons, then you have political cover for any investigations and prosecutions. Hey, they were offered pardons. Now, let's spin that roulette wheel of justice.
Like the Rude Pundit said, this is a game or maybe a political trick. It ain't what he wants. He would like to see John Yoo metaphorically strung up by his ballsack and batted around like a pinata. He'd like Alberto Gonzales to have to decide whether or not to join the Muslim prison gang or the Latin Kings to stop all the ass raping. He'd like George Bush to be dragged out screaming, like William Macy in Fargo, yowling into the expansive nothing of the Texas landscape that he didn't do anything wrong, the moment he moves from pathetic to disgusting.
Update: Regarding what several readers have said about how a pardon would still allow Spain, for instance, to proceed, as well as have an admission of guilt as evidence, well, you know, signing the memos is pretty much an admission of guilt. And, whether or not they're pardoned, Spain (or another international court) would still consider charges against the torturers.
Regarding what Barack Obama just said, that he's "open" to investigation and prosecution of some officials, well, let's hope so.