Tuesday, December 30, 2008


Newsweek - The United States, like many countries, has a bad habit of committing wartime excesses and an even worse record of accounting for them afterward. But a remarkable string of recent events suggests that may finally be changing - and that top Bush administration officials could soon face legal jeopardy for prisoner abuse committed under their watch in the war on terror.

In early December, in a highly unusual move, a federal court in New York agreed to rehear a lawsuit against former Attorney General John Ashcroft brought by a Canadian citizen, Maher Arar. (Arar was a victim of the administration's extraordinary rendition program: he was seized by U.S. officials in 2002 while in transit through Kennedy Airport and deported to Syria, where he was tortured.) Then, on Dec. 15, the Supreme Court revived a lawsuit against Donald Rumsfeld by four Guantánamo detainees alleging abuse there - a reminder that the court, unlike the White House, will extend Constitutional protections to foreigners at Gitmo. Finally, in the same week the Senate Armed Service Committee, led by Carl Levin and John McCain, released a blistering report specifically blaming key administration figures for prisoner mistreatment and interrogation techniques that broke the law. The bipartisan report reads like a brief for the prosecution - calling, for example, Rumsfeld's behavior a "direct cause" of abuse. Analysts say it gives a green light to prosecutors, and supplies them with political cover and factual ammunition. Administration officials, with a few exceptions, deny wrongdoing. Vice President Dick Cheney says there was nothing improper with U.S. interrogation techniques - "we don't do torture," he repeated in an ABC interview on Dec. 15. The government blamed the worst abuses, such as those at Abu Ghraib, on a few bad apples.

High-level charges, if they come, would be a first in U.S. history. "Traditionally we've caught some poor bastard down low and not gone up the chain," says Burt Neuborne, a constitutional expert and Supreme Court lawyer at NYU. Prosecutions may well be forestalled if Bush issues a blanket pardon in his final days, as Neuborne and many other experts now expect. (Some see Cheney's recent defiant-sounding admission of his own role in approving waterboarding as an attempt to force Bush's hand.)


PS Ruckman Jr, Pardon Power - Ulysses S. Grant's first clemency decision, on his third day in office, was to revoke two pardons granted by Andrew Johnson. Both men challenged Grant's power to do so, and lost their case in federal court. A central passage in a judicial opinion read:

"If the president can arrest the mission of the messenger when the messenger has departed but ten feet from the door of the presidential mansion, he can arrest such mission at any time before the messenger delivers the pardon to the warden of the prison."

The fact that "the president" - in this case - meant two different presidents (Johnson and Grant), and the fact that - in this case - the warden had actually received the pardons but simply stuck them in his desk for a while, did not matter. The pardons had not actually been placed in the hands of Moses and Jacob DePuy, so the two men stayed in prison and were pardoned (by Grant) later.

Grant also revoked the pardon of James F. Martin, but the New York Times, reported that the official order from the State Department reached the U.S. Marshal in Massachusetts "too late." That is to say, Martin had accepted his pardon and had exited the premises. No effort was made to put him back.

Finally Grant revoked the pardon of Richard C. Enright, who was sentenced to 18 months in prison and fined $2,500 for conspiracy to defraud the government. Johnson granted a full pardon 12 months into the sentence but, before the pardon could reach Enright's hands, Grant revoked it. Enright had to cool his heels another 8 months.

In a 1975 article for Case and Commentary, distinguished attorney Melvin H. Belli referred to an instance in 1969 when the President "managed to head off a pardon granted by the previous President." According to Belli, a telegram was sent to "waylay" the pardon "just before it was delivered into the hands of the intended receivers."

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