Obama Would Not — Cannot — Deem Any Activities Authorized by Gloves Come Off Finding Illegal

ACLU Executive Director Anthony Romero has what I’m sure he believes to be an out of the box op-ed in the NYT. In it, he calls on President Obama to issue pardons for all those who masterminded the torture program.

But with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.


But let’s face it: 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. AddingtonJohn C. Yoo andJay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all.

There are many many problems with this proposal, some of which Kevin Jon Heller hits in a piece that notes this would not be pardon, but blanket amnesty.

But Romero’s proposal (if it is intended as anything beyond a modest proposal meant to call Obama’s bluff) fundamentally misunderstands the situation — a situation the ACLU has been at the forefront in exposing.

Obama would not — categorically cannot — admit that what Tenet and Bush and Cheney did on torture is illegal. That’s because he has authorized war crimes using the very same Presidential Finding as the Bush Administration used to authorized torture.

As I have laid out at length, the torture program started as a covert op authorized by the September 17, 2001 Gloves Come Off Memorandum of Notification. And along with torture, that Finding also authorized drone strikes. The drone strikes that Obama escalated.

Just 3 days after he assumed the Presidency, a drone strike Obama authorized killed as many as 11 civilians, including one child, and gravely injured a 14 year old boy, Farim Qureshi.  And several years into his Administration, Obama ordered the CIA to kill American citizen Anwar al-Awlaki with no due process. As far as we know, both of those things were done using that very same Finding, the Finding that Romero would like Obama to declare authorized war crimes.

When the 2nd Circuit ruled the President — President Obama, not President Bush — could keep a short phrase hidden making it clear torture had been authorized by that Finding in ACLU’s very own torture FOIA, it did so because the Finding still authorized intelligence activities. The Finding authorizing torture was still active — President Obama was still relying on it — at least as recently as 2012.

For Obama to pardon Bush, Cheney, and Tenet, he would have to admit that the same Finding that he used to authorize drone strikes that have killed hundreds of civilians authorized war crimes. There is absolutely zero chance Obama is going to do that.

15 replies
  1. Ben Franklin says:

    ACLU as well as Human Rights Watch have hidden agendas. I look forward to righties trying to parse amnesty for those who have broken the law. Kettle-corn never tasted so good.

  2. Peterr says:

    The NRA would leap to Obama’s defense, though. “Just because I bought my gun at the same place that killer bought his doesn’t mean I shouldn’t be able to keep my gun. Indeed, it means that I need to go back there and buy another!”
    Yes, there is next-to-zero chance that Obama will do this. (I say “next-to” because Obama has a better track record when it comes to pardoning turkeys as opposed to criminals.) But I have to think that the ACLU was also trolling Cheney & Co. “You want to stay out of prison? Fine. What say we get the president to make it official, so you don’t have to keep worrying each time there’s a new AG?”

  3. ess emm says:

    Exactly right, emptywheel. I didn’t follow Romero’s logic either. The very idea of giving those cruel, unrepentant men amnesty (Heller’s right on that, it is amnesty) makes me angry. As an ACLU member I am deeply disappointed in Romero.

    • P J Evans says:

      One of the commenters at the Great Orange Satan is so ticked that they’re going to switch donations from ACLU to EFF. I don’t follow Romero’s logic, either, such as it is.
      (Pardoning Nixon got us what, exactly? The GOP got worse, having learned they could get away with their bad behavior, and the Democrats gave up fighting.)

      • ess emm says:

        I think switching to EFF is an over-reaction (giving to both is cool, though), as is asking for a resignation. But Romero is still very disappointing

  4. kathleen says:

    The exchange between Howard Dean and Joe Scarborough on Morning Joe on the torture issue was interesting. The woman co host (don’t know her name” and Joe kept repeating that “only” three people have been water boarded. The woman and Joe never let Howard Dean finish a sentence. Think you might be interested. Once again an effort to keep Americans heads up where the sun does not shine about this critical issue

  5. Ben Franklin says:

    Patrick Henry wrote,

    “What has distinguished our ancestors?–That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany.”

  6. omphaloscepsis says:

    I saw the op-ed headline on the NYT site, but didn’t open it, assuming it was Addington or Perle or one of those. The ACLU origin is certainly a surprise.

    I don’t know. It may not be the worst idea. Reactions may well correlate with reactions to Gerald Ford pardoning Nixon. I think he did the right thing. And only a week later, he granted amnesty to large numbers of draft dodgers and deserters. So he spread it around.

    Consider Mandela’s Truth and Reconciliation Commission. How much more did that accomplish than years of investigations and trials? Granted South Africa has lots of problems today, but aren’t they better off for that approach to their past?

    One of the obvious down sides to a presidential pardon — it doesn’t extend beyond our borders.

    • Granville Kennedy says:

      You should read Naomi Klein’s Shock Doctrine to see just how badly the revolution in S. Africa got co-opted by corporate interests… Truth and reconciliation was a poor consolation prize for the people of S. Africa.

  7. phred says:

    I cannot help but see Romero’s suggestion on a continuum with the recent grand jury decisions to turn a blind eye to the murderous abuse perpetrated by privileged white government officials on minorities whose lack of privilege results in harassment, torture, and death.
    As an ACLU member I am ashamed of Romero. I expect far far better leadership from the ACLU than this.

  8. Katheen says:

    A pardon officially stamps the crimes with a seal of acceptance. Would only add to the diminished faith that Americans and the world have for the US system. Prosecutions not all of the same “learn from the lessons”…:move forward”…”turn the page”…”sunlight is the best disinfectant” hoopla. Accountability through prosecutions the best disinfectant.

    Ew thanks for all of your persistent work and research on these critical issues

  9. klynn says:

    After all the years that I read Jeff Kaye’s blog over at the ACLU site, I am totally lost at the strategy being suggested by Romero. I keep working out and asking myself what sum? What game outcome did he map out before writing the piece?

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