A Christmas Pardon

The release of the Senate Intelligence Committee report on torture puts U.S. President Barack Obama in a tough spot, which may be why the White House worked so hard to delay, sanitize, and/or derail the report itself. Not only does it cast strong doubt on the wisdom of Obama’s first-term decision to “look forward and not back” on the sorry legacy of Bush-era war crimes, but the evidence in the report suggests the United States is now obligated to prosecute the perpetrators or be in violation of the U.N. Convention on Torture (signed in 1988 by notorious anti-American activist Ronald Reagan). Indeed, today the New York Times editorial board called for Obama to begin a criminal investigation of these practices, up to and including former Vice President Dick Cheney.

Obama’s dilemma has been compounded by the furor over repeated incidents of police misconduct in the United States. The two problems are not identical, but the similarities between the torture regime and police excesses are still striking. In each case, coercive government agencies (mostly white) have engaged in brutal, morally repugnant, and illegal acts against suspects (mostly persons of color). In each case, excessive force is justified or defended as necessary to keep us safe, even when it does no such thing. And in each case the perpetrators are not being held accountable despite abundant evidence of wrongdoing.

This situation leaves Obama in a decidedly awkward position. Ironically, the president who was going to transcend race, restore the nation’s global image, and end the “war on terror” now runs the risk of going down in history as someone who ended the use of torture but let its practitioners get off scot-free.

So what’s Barack Obama to do? I have a suggestion: pardon them all. But I don’t just mean the Bush-era officials who ordered, justified, conducted, or tried to conceal these crimes. In addition, Obama should also pardon the whistleblowers and dissidents who broke the law while trying to expose these (and other) government excesses.

Let’s start with the first group. The Senate report removes all doubt about whether the CIA tortured a significant number of people, often in gruesome ways. It also shows that torture did not prevent subsequent terrorist plots or make Americans safer (and it would still be illegal and immoral if it had). Some of the torture victims were clear cases of mistaken identity, yet they still suffered grievously at the hands of the United States. Nonetheless, both former President George W. Bush and former Vice President Dick Cheney have defended their actions, as have the top-level officials — most notably former CIA Director Michael Hayden — who shielded these practices from proper congressional oversight.

Yet as the ACLU’s Anthony Romero noted in a recent New York Times op-ed, there is little chance that any of these parties will be held accountable. Why? In Romero’s words, “because 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.” Moreover, the country itself is divided on the question, which will make Obama even less likely to do the right thing. As Romero points out, the danger is that tacit acceptance of past wrongs will invite the United States to resume these heinous practices in the future. Or as Darius Rejali of Reed College put it, “Nothing predicts future behavior as much as past impunity.”

What Obama must do, therefore, is make it clear he believes that U.S. officials committed crimes, even if he declines to prosecute them at this stage. And he can do that by issuing a preemptive pardon. He can use the full power of the presidential bully pulpit and his own well-honed eloquence to make this point as powerfully as possible, and at this point he certainly doesn’t have to worry that this step will cost him Republican votes. And then he should preemptively pardon Bush, Cheney, Hayden, John Yoo, and all the rest, right down the line, just as Gerald Ford pardoned Richard Nixon.

This result is not as satisfactory as a trial might be, and the torture victims are unlikely to feel that justice has been done. But at least the conduct that these individuals oversaw would have been marked as outside the boundaries of civilized behavior.

But Obama cannot stop there. At the same moment that he pardons the torturers, Obama should also announce that he is issuing a presidential pardon to John Kiriakou, Thomas Drake, and, yes, Edward Snowden and Chelsea Manning (and maybe some others too). Let us stipulate that these four individuals broke the law (though only Kiriakou and Manning have been tried and convicted).* But just as Bush, Cheney and the torturers probably believed what they were doing was in the best interests of the country, these other individuals also acted to protect the country from what they believed were dangerous and unlawful abuses of power. Significantly, none of them were motivated by a desire for selfish material gain; indeed, they all understood that their actions were likely to land them in deep trouble. And so it did: Today, those who abused power and stained America’s reputation enjoy lives of great wealth and privilege, while those who tried to bring government abuses to light are in prison, in exile, or in compromised financial circumstances.

Pardoning both groups makes sense because each is in a sense a manifestation of the dark period that followed 9/11. The shock of that event triggered some of America’s worst impulses — and Bush and Cheney took full advantage of that reaction — and led the country into far greater disasters abroad. We now know that when 9/11 occurred, the United States was not in the hands of balanced, mature, and hard-nosed individuals who knew how to calibrate threats appropriately and devise responses consistent with our strengths and values as a society. They may have talked tough but in reality they panicked, and their responses did far more harm to America than Osama bin Laden and his gang ever could. In time, their crimes led others to break the law in different ways. By pardoning both groups, Obama could “tie off” this troubling chapter in our history and his action would be a permanent reminder of the dangers that lurk whenever a powerful country suddenly feels vulnerable.

Is this a perfect solution? Hardly. It won’t erase the stain on America’s global image, or satisfy its obligations under the Convention on Torture. But a blanket pardon has the virtue of displeasing both Left and Right in equal measure. The Right won’t like seeing the whistleblowers walk and the Left won’t like seeing Bush, Cheney, and the rest continue to dissemble about their crimes and blunders. So be it. It’s not a perfect world, American democracy is not a perfect system, and Barack Obama is not a perfect president. Pardoning them all could make the best of a bad situation, and if it’s not quite the change one might hope for, it could be the kind of change one might still believe in. And if that’s not reason enough: it’s Christmas.

*Correction, Dec. 22, 2014: Chelsea Manning was tried and convicted after leaking classified documents. An earlier version of this article implied that she had not been tried or convicted. (Return to reading.)

Photo by Mark Wilson/Getty Images