The Bush Administration's Security Blanket

Broadcast coverage [1] and photo spreads and from Election Night show people from Japan to India, from Israel to London, applauding, crying and dancing in the streets over the election of Barack Obama. More to the point, they were celebrating the return of “the America we loved,” as John Le Carré put it [2] in 2004. Look again at these photos [3]. Al Qaida has nothing to compete with that.

But bringing back the America we loved will take more than an election. It will require the return of justice and the rule of law. Now, while Americans obsess over the value of their 401(k)s, the climbing unemployment rate, the financial bailout and the Big Three bailout, plans are afoot in the West Wing to keep Bush administration officials from needing to be bailed out – of jail.

Scott Horton surveys the limited options available for “Justice after Bush: Prosecuting an Outlaw Administration” in the December Harper’s. Americans have shown a reluctance for investigations and prosecutions, and a desire to put the Bush-Cheney era behind. Horton cautions [4] (subscription required),

Americans may wish to avoid what is necessary. We may believe that concerns about presidential lawbreaking are naive. That all presidents commit crimes. We may pretend that George W. Bush and his senior officers could not have committed crimes significantly worse than those of their predecessors. We may fear what it would mean to acknowledge such crimes, much less to punish them. But avoiding this task, simply “moving on,” is not possible.

What Horton's survey doesn’t consider is how the Bush administration might perpetrate its next (if not final) insult to the rule of law. This summer, Salon examined rumors that Bush would issue blanket pardons [5] – preemptively, of course – for those involved at any level in carrying out detainee interrogations. Those rumors persist [6].

Presidents George Washington, Andrew Johnson and Jimmy Carter issued blanket pardons [7] under very different circumstances. James Ross, legal and policy director for Human Rights Watch, told [8] London’s Telegraph that a blanket pardon by Bush in these circumstances,

"[W]ould be the first pre-emptive pardon in US history for war crimes. Such a pardon might seek to protect low-level government officials who relied on legally dubious Justice Department memos on interrogations.

"But it would also provide blanket immunity to senior administration officials who bear criminal responsibility for their role in drafting, orchestrating and implementing a US government torture programme."

A blanket pardon offers the Bush administration some advantages. Post-pardon spin will focus on the benefits for protecting low-level government personnel, as Ross notes. But issuing a blanket pardon would also protect White House-level players such as Dick Cheney, Donald Rumsfeld, David Addington, Alberto Gonzales and John Woo (and perhaps Bush himself) while avoiding two major pitfalls of granting individual pardons: tying by name high-ranking administration officials to the design, approval and conduct of criminal programs; and tacitly admitting their guilt for history.

Scott Horton insists that breaking the Bush culture of lawlessness is essential to reassert, as Thomas Paine insisted, that “the law ought to be King; and there ought to be no other.” And that the will of the people is sovereign.

Open criminality is a cancer on democracy. It implicates all who know of the conduct and fail to act. Such compliance presents a practical crisis, in that a government that is allowed to torture will inevitably transgress other legal limits. But it also presents an existential political crisis. Many democracies have simply collapsed as the people permitted their leaders to abandon the rule of law in the face of alleged external threats.

And alleged internal ones. While rumors focus on blanket pardons for torture, pardons for transgressions of “other legal limits” are not out of the question [9]. Warrantless surveillance comes to mind. Cataloging the administration's sins, Horton observes, “This administration did more than commit crimes. It waged war against the law itself.” Avoiding that – and permitting it to go unchallenged – is a greater threat to America than al Qaida ever was.