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How Will the Imperial Presidency End?

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November 18, 2008

In the waning days of the Bush administration, it may seem like a boatload has already been said about the mess George W. created — gallons of newspaper ink, innumerable blog posts, an Oliver Stone biopic, endless books already on the shelves, and more on the way.

close gitmo

Yet with the plethora of information at hand, the biggest thing we know is that we don't know nothin' yet.

The American people still know very little about how we came to the place we are at today, or even exactly where that is. The genesis and extent of our policies when it comes to torture, domestic spying, rendition, and other abuses that have been carried out by our 43rd president are still shrouded in secrecy.

Which is why investigations are critical both to ferreting out wrongdoing and preventing such abuses in the future. This becomes trickier, however, if Bush issues a blanket pardon as he's rumored to be contemplating. The pardon wouldn't grant immunity to a specific class of people — like Carter's blanket pardon to Vietnam draft-dodgers — but would be programmatic and would apply to a broad swath of people who participated in any activity related to the Bush administration's torture and interrogation programs.

Last night on Countdown with Keith Olbermann, constitutional law scholar Jonathan Turley noted that a blanket pardon of that order would "allow presidents to have a virtual criminal enterprise going on from the beginning to the end of their term, and then just issue a blanket pardon for everyone in their administration. It would be a terrible, terrible precedent."

Mark Benjamin reports on that the Obama administration is considering creating a commission to investigate a broad range of those exact activities. Obama's been talking about investigations since August, but just what an investigation would look like or whether the end result would be criminal charges is unclear.

Benjamin reports that some worry a quick move to prosecute Bush administration officials would devolve into partisan warfare and note that changes to the War Crimes Act in 2006 actually make it harder to prosecute those involved in interrogations.

The emphasis for now seems to be investigation first, and decisions about prosecution later. Is it a side step? Turley puts it this way:

This issue has never been about the issue of torture. That principle — that we don't torture — already existed in international law, it existed in domestic law. The principle we've been debating for the last 8 years is the principle of the rule of law. Whether a president is above the law. What I think you are seeing now is a bit of a bait and switch, where the Democrats are turning this into a question of whether we will finally denounce torture. We already did that many years ago; the world did that many years ago. The question is whether the Democrats will stand with the rule of law and demand an investigation of crimes.

Meanwhile the ACLU and Brave New Foundation are working to gather our own form of testimony (without the mighty power of Congressional subpoena) from people with first-hand knowledge of the system of injustice thriving at Guantánamo Bay. Check it out at

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