Henry Farrell’s Modest Proposal

Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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55 Responses

  1. BSK says:

    “While Obama has effectively admitted that they were torturers, he has indicated both through public statements and continued inaction, that he would prefer to let bygones be bygones.”  I’m okay with this, so long as Obama himself personally touches base with all of Cheney’s victims to communicate this message.

    The problem is that Cheney’s crimes had real victims.  Manning’s, to this point, do not.Report

    • Scott in reply to BSK says:


      “The problem is that Cheney’s crimes had real victims.  Manning’s, to this point, do not.”

      Really, you know that to be true about Manning?  Just b/c you don’t know of any harm doesn’t mean it hasn’t happened. Sounds like opinion masquerading as fact.


      • BlaiseP in reply to Scott says:

        Manning did incalculable damage to American intelligence gathering.   I strongly suspect Hizb’allah rolled up every operator in Lebanon based on what Manning revealed.   I do know more stars were added to the wall at Langley.   Brave people died because of Manning.Report

      • Katherine in reply to Scott says:

        You cannot directly tie Manning to anyone’s death.  You can directly tie Cheney to people being tortured.Report

  2. Creon Critic says:

    With respect to the conduct of the Bush administration, I’m partial to the public inquiry model. Given it’s highly unlikely they’ll be held accountable in court, a fuller examination of the (mis)conduct and publication of an account of whys and wherefores, would be the nearest thing to serving the purposes aimed at in a trial.

    With respect to Manning, obviously his mistreatment in custody is wrong, no ifs and or buts. Regarding the act of disclosing state secrets, I think that’s a pretty tough hill to climb – particularly given who is dispensing the pardons. Had Manning been a whistleblower in a much narrower sense, I could see a plausible case – so misconduct in Iraq or Afghanistan, information disclosed about Iraq or Afghanistan. But simply disclosing heaps of information held as confidential on wholly unrelated matters, covering the whole globe, over a period of decades – well, I can see why the government would be extremely reluctant to even consider pardoning that kind of behavior. I’m also a lot less convinced that the State Department cables amounted to mere embarrassment – if your organization relies on confidential informants, potential retaliation against lots of informants just makes your job a lot more difficult.Report

    • BlaiseP in reply to Creon Critic says:

      Bradley Manning is only a symptom.   In any rational intelligence gathering and dissemination framework, the operators are confined to what they need to know.   In the wake of 9/11, this was viewed as a problem so the USA overreacted, chmod-ing and chown-ing everything into one big messy pile, thus exposing a huge trove of documents to Bradley Manning and tens of thousands of other people.

      Bradley Manning was a punk.   Opportunity makes the thief.   He’ll get whacked but everyone with a clue knows it’s the morons who opened up the Access Control Lists who belong in jail.   Manning’s motives are unclear:  he seems to have been hanging around with hackers, hoping to be a big shot.   But I don’t see anyone questioning the motives of the OPSEC jackasses who allowed this to happen.Report

      • Mike in reply to BlaiseP says:

        I don’t think the problem with Manning was who controls access, it was the fact that he was able to sit at a workstation several hours a day for what could have been months copying classified data on to recordable CD’s and leaving with them.  The problem was his chain of command and NCO support chain.  He had a direct supervisor who had no idea what his subordinate was doing, and apparently either he had too few duties for the hours that he was at work or he never had any duties and no one had any idea what he was doing on those classified systems.Report

        • BlaiseP in reply to Mike says:

          Well, yes, that’s the first layer of the problem, no argument there.   But the question remains, what business did some lowly US Army 35F have looking at State Dept traffik?    SIPRNET’s barn doors were wide open.   I strongly suspect the only reason the case against Manning came out was because SIPRNET had already been breached, probably many times.Report

          • Mike in reply to BlaiseP says:

            That would be a typical position for an Intelligence Analyst at the Brigade level; sitting in front of a workstation, preparing reports and briefings.  He may have had a legitimate work reason to access the State Department site, but even if he didn’t t up until Manning, it would have been ridiculously easy to just “sign up” for an account.

            It’s just amazing to me that he had the time to steal so much without a first line supervisor getting a clue.Report

            • BlaiseP in reply to Mike says:

              Lord, yes.   I did a gig for US Army not too long ago.   It’s amazing who they’ll give a CAC card to anymore.   I’m sorta coming around to your opinion, though I still maintain an E4 35F had no business in State Dept. traffik.

              Manning had already been a Problem Child, several outbursts, I think he got an Article 15 and a demotion to E3 for getting into a fight with some female.   His commanders, as you say, were directly responsible for this situation.   He should have been discharged far earlier.Report

  3. BlaiseP says:

    It seems important to note few in the Justice Department felt obliged to tell the White House “No, this is against the law of land warfare.   We do not torture because it does not work.   It pumps bullshit into the intelligence pipelines.”

    The FBI complained, nobody listened.

    Cheney, well, he knew the CIA hadn’t been doing its job.   He also knew the Clinton administration had been outsourcing torture.   He did nothing but what others before him had done and will do again.Report

  4. Will H. says:

    Obama has taken a fairly hard line against whistleblowers generally.
    The odd thing is that the federal system is set up so where it depends on them.

    In sections 3729, et seq., of Title 31, are the qui tam statutes. Briefly, this provides for a civil action with citizens as “private attorneys general” to prosecute fraud against the gov’t. These are our whistleblower statutes.
    This is used to prosecute Medicare fraud and defense contracting fraud, and not much else. First, attorneys that do this sort of thing are going to want to see a matter of $10 million at issue. Secondly, there are the seal requirements, which are set up for summary judgment.
    Pat of the reasoning behind the seal requirement is to allow the gov’t time to investigate. The US Attorneys Office becomes involved with something like 20% of qui tam actions, and these are much more likely to succeed.

    Section 1983 of Title 42 is the action for deprivation of civil rights (criminalized in section 245 of Title 18). This is the US Attorney’s Office answer to manpower issues.
    Some federal statues grant particular rights. This is the cause of action for asserting those rights.
    There is a lot of caselaw from section 1983 involving federal employees and the First Amendment. Part of that is that the Court has recognized two different classes of employees.

    Anyway, our federal system depends on private citizens stepping forward. That’s pretty much all we’ve got.
    The Obama admin. has been very hostile to whistleblowers generally.Report

  5. If I had to choose between demanding prosecutions that will never come and getting no information and no admission of complicity in war crimes, and allowing for pardons in the hope that some light will be shed, then I’d support the latter.Report

  6. Tod Kelly says:

    I actually love the idea. If nothing else it is a way for us all to acknowledge that in both cases crimes were committed (as opposed to merely falling back on partisan squabbling) which would create a precedent that might make it harder to commit such breaches in the future.Report

  7. Burt Likko says:

    This will have to wait until after the election, of course.Report

  8. Matt Huisman says:

    Does Tom Daschle get pardoned too?

    The problem with this trade is that it scapegoats Cheney, when the reality is that (just about) the entire government leadership was in on it.  We (except for you, Jason) decided to do these things.  If we didn’t, we’d have thrown every one of them out.

    Manning, and perhaps many will admire him for it, went rogue.Report

    • BlaiseP in reply to Matt Huisman says:

      Cheney’s role is unique.   It’s Cheney who leaned on CIA and the military to take the gloves off by his own admission.   The role of Vice President isn’t all that clear but he was definitely off the reservation and should probably be in prison.

      And no, it wasn’t We who decided to do these things.   They were done in secret and they were done by obtaining legal opinions from rubber-stamp stooges.Report

      • Matt Huisman in reply to BlaiseP says:

        Just to clarify – how much of what Cheney did (in principle) do you think Tom Daschle was completely unaware of?Report

        • BlaiseP in reply to Matt Huisman says:

          That’s an absurd question.   Daschle was one of the few people who raised his voice against the War on Iraq.   John Thune, fine upstanding asshole that he was, said he was Emboldening the Enemy.   That much we both know.Report

  9. MikeSchilling says:

    I’m not seeing it.

    1. Obama pardons Cheney.
    2. Cheney angrily rejects the pardon as a partisan attempt to smear him when he’s done nothing either illegal or wrong.
    3. ????


    • Scott Fields in reply to MikeSchilling says:

      I’m with you, Mike.  This is a suggestion with political “sh*tstorm” written all over it.Report

      • It’s never been established that waterboarding is illegal under US law.  This old chestnut depends on what is still a rhetorical assertion,

        that waterboarding is torture

        torture is illegal, therefore

        Cheney is a criminal.

        It cannot state directly that Cheney is a criminal because waterboarding is illegal, because it’s not established by the legislature or the US courts that it is.  [The Bush admin itself discontinued waterboarding in 2006, so although it’s not a live issue, we must still have our pound of flesh.]

        Farrell’s post itself is not very good:

        1) Mr. Schilling is correct.  It would be a slime job, finding Cheney guilty of something not litigated. [Yes, the Nixon pardon was open-ended, for any crimes he “may have committed.”  But it was never specific about those crimes, nor did Nixon fight it, as Cheney would.]

        Nor a) Is it clear waterboarding is illegal under US law, and a pardon would not clear Cheney et al., from International law, although the US is not a signatory to its jurisdiction.

        President Obama himself said, “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

        If ignorance of the law is no excuse, ignorance of multiple possible interpretations of it may be.  President Obama’s use of “good faith” here is probably with the law in mind, not just sunny rhetoric.

        HOLDER [at his confirmation hearing]: We will follow the evidence, the facts, the law, and let that take us where it should.

        But I think President-elect Obama has said it well. We don’t want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don’t want to do that.

        Oh, the criminalizing of policy.  There’s been plenty on that from the left, using this issue as a jumpoff point in particular.  But if it became common, I suppose every president will be obliged to issue a blanket pardon to anyone who served in his administration, or at some point, no intelligent person will ever enter public service.

        I don’t know the details on this


        but man, it seems wack to the extreme.

        2) There is no connection here to the Bradley Manning case in the least except in Mr. Farrell’s quite creative synapses.  The little weasel betrayed his country, and from what I gather more out of adolescent pique than high principle.

        [UN “rapporteur’ Mendez] told the Guardian that “the 11 months under conditions of solitary confinement … constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.”

        Once you own the “torture” word, you can wield it with impunity.


        • BlaiseP in reply to Tom Van Dyke says:

          You’re simply lying about waterboarding, Tom.   Captain Edwin F. Glenn was prosecuted for waterboarding prisoners and sent to prison as early as 1902.   It was against interrogation SOP during the Vietnam War.Report

          • Tom Van Dyke in reply to BlaiseP says:

            My objection here is purely formal, Blaise:  who determines “waterboarding is/is not torture” wins the day, of course.  Rhetorically, the moralist wins; that “waterboarding is not torture” is an absurdity, a sophistry.

            However, waterboarding as used vs. al-Qaeda has never been established in US law as “torture.”  [Regardless of treaty language, the US reserves the right to interpret the treaty language, not some international body.]  Perhaps they just should have gone right for the electrodes on the balls, and saved everybody a lot of time, talk and trouble.

            But they didn’t.  They chose a more legally ambiguous route. Therefore, to call Cheney a “war criminal” is not a statement of [legal] fact, but a term of art in the context here of a US government pardon, since the “crime” is alleged, but nowhere near proven in a US court of law.

            This is why Henry Farrell’s argument is not very good.  In fact, trying to dovetail it into the Bradley Manning case [who is a criminal under US and military law by a slam-dunk] leaves the Farrell essay thorough crap on the level of factual premise and thereby formal argument.

            [As for your cite of the 1904 Philippine case [also used by the Japanese in WWII], I’m going to rely on memory that the “waterboarding” to which you refer here involved pouring gallons of water down the poor fellow’s gullet.  This was called the “water cure,” and isn’t the same thing as the “waterboarding” that al-Qaeda got.

            Why you should call me a liar, old friend, over this factoid—and one I believe you’re wrong about—is to cross one of the last remaining possible bounds of gentlemanship, that we not use the “L” word.

            I realize that the dream of us discoursing as gentlemen and -women is a quaint nostalgia, and perhaps you’re only giving as you get, that being called a liar Is all in a day’s work for you.

            I prefer “mistaken.”  You are not legally correct on the applicability of the 1904 Philippine thing—the “water cure” is not waterboarding—but I wouldn’t think of using the “L” word on you.]

            I do not address “waterboarding is torture here” as a truth claim either way, except to point out that the legal validity of that premise in the context of US law and pardons is quite different from the rhetorical/moral assertion that it is.

            If you want me to run through my formal objections and arguments again I will: I think they’re sound and that I’ve been logical about the whole affair, Captain.  This is about clarity and not moral judgment, but if I’ve been too brief in respecting thios as a comments section, than pls do feel free to inquire more.  I’ve never got the hang of understanding when people don’t understand my argument, Blaise, or whether they’re pretending not to understand it because they don’t like where it leads.  You, I have always credited with being able to follow an argument you don’t agree with.

            That you and JasonK and Henry Farrell are all on the side of the angels is not contested here, it should be unnecessary to add.Report

            • Michael Drew in reply to Tom Van Dyke says:

              So, what constitutes torture under the law, then, Tom?  What couldn’t they have done?  If your view is coterminous with the Yoo/Bybee view I guess that might be information people would be interested to know.Report

          • George Turner in reply to BlaiseP says:

            Tom is correct, what Captain Edwin Glenn was convicted of was using the water <i>cure</i>, which was used by the Spanish and Filipinos, in which the victim’s stomach is filled with water.  A couple of years ago a radio station in California had a water drinking contest to win a car, not knowing that drinking lots of water is an extremely certain and painful way to die.  That’s why animals won’t naturally ever drink that much, and why the torturer’s have to hold the victim’s mouth open and pour it in so the victim has to swallow it just to keep from drowning.  In any event, Glenn was convicted and had to pay a $50 fine.  If <i>simulating</i> what Glenn did to get fined $50 was taken to court, I would expect a penalty on the order of about $5.

            As for issuing a pardon to Cheney just to make him look guilty of something, I’m sure Obama’s successor would be happy to issue Obama a blanket pardon on two-hundred counts of child rape, murder, sex with farm animals, animal cruelty, and conspiracy to engage in child sex slavery – just in case he’d done any of those things.  You never know what might turn up in International Law, which is why it’s important to have a handbook on it, such as this one (http://www.amazon.com/Hand-book-international-Captain-Edwin-Glenn/dp/B002WU3JQS) written by Captain Edwin Glenn himself.


            • Jason Kuznicki in reply to George Turner says:

              I’m more than happy to leave aside the water cure, because it has never been the subject of this debate.

              What I have been talking about is waterboarding. And yes, it is torture.  Why?  Because you do not need to distend the stomach to very effectively trigger the body’s innate, instinctive response to drowning.  A few drops of water are enough to induce abject panic.  It seems weird, it’s hard to believe, and it is entirely true just the same.  Ask anyone who has undergone it.

              A good place to start is with the Christopher Hitchens essay in which he describes his own (voluntary) experience with being waterboarded.  Its title?  “Believe Me, It’s Torture.”


              • This is so 2006*.  The objection that Farrell’s essay is not very good is made formally here, and stands unmolested.  It is a legal argument unsupported by actual law.

                *when waterboarding was unilaterally discontinued by the Bush Admin anyway.  At this point, the actual issue of waterboarding is moot; the real question here becomes legal-political, that current administrations should prosecute the good faith actions of previous administrations.  I believe the Obama Administration is wise here, if only to preserve continuity between administrations rather than institute a dynamic of hostile takeover.  To repeat:

                President Obama himself said, “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

                If ignorance of the law is no excuse, ignorance of multiple possible interpretations of it may be.  President Obama’s use of “good faith” here is probably with the law in mind, not just sunny rhetoric.

                HOLDER [at his confirmation hearing]: “We will follow the evidence, the facts, the law, and let that take us where it should.

                But I think President-elect Obama has said it well. We don’t want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don’t want to do that.”


              • BSK in reply to Tom Van Dyke says:

                “”There should be little doubt from American history that we consider that as torture otherwise we wouldn’t have tried and convicted Japanese for doing that same thing to Americans,” McCain said during a news conference.”

                “In the war crimes tribunals that followed Japan’s defeat in World War II, the issue of waterboarding was sometimes raised. In 1947, the U.S. charged a Japanese officer, Yukio Asano, with war crimes for waterboarding a U.S. civilian. Asano was sentenced to 15 years of hard labor.

                “All of these trials elicited compelling descriptions of water torture from its victims, and resulted in severe punishment for its perpetrators,” writes Evan Wallach in the Columbia Journal of Transnational Law.

                On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced “a flooding sense of suffocation and drowning, meant to make him talk.” The picture led to an Army investigation and, two months later, the court martial of the soldier.

                Cases of waterboarding have occurred on U.S. soil, as well. In 1983, Texas Sheriff James Parker was charged, along with three of his deputies, for handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions. The sheriff and his deputies were all convicted and sentenced to four years in prison.”Report

              • George Turner in reply to BSK says:

                I wouldn’t want to go to trial with a John McCain comment as my primary evidence.  No Japanese officer was even charged with simple waterboarding, and what they did wasn’t waterboarding, it was the water cure, which involves actually flooding the nose and mouth with water, sometimes using a hose.  Each of them was also charged with beating prisoners with clubs, scabards, canes, belts, belt buckles, rifle butts,  burning them with lighted cigarettes and hot irons, subjecting them to mock executions and most importantly, making them stand for long periods of time and stand outside in cold weather.

                So not only does the prosecution of Japanese officers for an entirely different act (water cure vs. waterboarding) fail to establish a proper precedent, that precedent would have to include forcing someone to stand for a long time, or stand out in the cold, since those acts were also listed among the charges against the officers.  If we’re allowed to cherry pick these cases to define torture, then standing a long time is torture and can be prosecuted as a war crime.  That would mean that every person who drags a friend or relative to a Black Friday after-Thanksgiving sale and has them stand in line for hours could face prosecution, imprisonment, and possible execution for war crimes.  It means Obama could be executed for making White House tour groups stand outside in the cold too long.  In short, it’s silliness

                As for the sherrif in Texas, he violated 18 USC § 2340, which carries a 20 year prison sentence unless the victim is killed, in which case the death penalty can apply.  Police also aren’t allowed to shell cities with artillery, torpedo shipping, strafe highways, and bomb rail yards, but if one did and got convicted, would that likewise somehow prove that Dick Cheney is a war criminal because the military did something that the police aren’t allowed to?Report

              • Thank you, Mr. Turner.  Those were precisely my rebuttals, had I the energy to defend myself from every challenge no matter how hostile or poorly thought out.

                i just don’t have the time and the will anymore, and need to save it for people of good will and solid argument.  But yes, McCain’s position is old news [and not law], and the Japanese case was indeed ‘water cure’ and not waterboarding.Report

              • BSK in reply to George Turner says:

                If you reas the text of the charges against Asano, they incudes fastening a prisoner upside down and puring water up his nose. If you want to argue that that is somehing other than watwrboarding, you are playing politically expedient word games. Yes, Asano had other charges files against him, but that does not preclude the waterboarding charges. If those were not crimes, they would not have been listed amongst the charges.

                It is a shame you continue to make arguments you are unwilling and (more precisely) unable to defend. I would imagine that engaging in such willful ignorance is tiring. Yet again, your claims have beene effectively refuted, resulting in another wave of personal attacks. What a shame.Report

        • BlaiseP in reply to Tom Van Dyke says:

          Tell you who used to do a lot of waterboarding, our good buddies Marvin the ARVN.   They’d simply hold the guy on the ground, put a handkerchief over his face and pour water over it until the guy started screaming.Report

        • BlaiseP in reply to Tom Van Dyke says:

          Once you own the torturers, you can torture with impunity.Report

        • … from International law, although the US is not a signatory to its jurisdiction.

          The US has ratified the Convention Against Torture (UNTC), and Special Rapporteur Juan Méndez highlights “cruel, inhuman, and degrading treatment” because the convention’s full name is the “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”. Also reading through Méndez’s CV (via UN OHCHR), in my opinion, for what it’s worth, he’s entitled to a degree of deference:

          – One time or another law professor at Georgetown, Hopkins, and Oxford
          – Former advisor to a UN Secretary General on the prevention of genocide
          – Represented political prisoners in Argentina,
          – As a consequence of representing political prisoners, was himself arrested and tortured

          Méndez’s reference to Article 16 is particularly apt:

          Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.


          • CC, I believe you’ll find the US reserves the right to interpret the language of treaties it has signed, not any random UN functionary, and does not submit to any jurisdiction other than its own.

            But I think your objection to my objection here:

            Méndez’s reference to Article 16 is particularly apt:

            Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

            Is excellent, sharp & germane.  Well done, sir.

            I can only disagree on the formal level—which is the nature of my objection here in the first place—that “acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture” is unenforceably vague and subjective under US law and constitutional practice, and further that your argument, even if sustained, amounts more to a treaty violation than a “war crime.”

            Can we even try Cheney for a treaty violation? What US statute does this violate?  Does one exist?  What is the penalty for violating it?

            “Shall undertake” [bold face mine, above from Article 16] is more a term of art, as is “cruel,” “inhuman” or “degrading.”  A US court could decide these things as binding, but not a foreign court or UN functionary.  Neither do we get anywhere near my primary objection—and Obama-Holder’s admission—that waterboarding has never been defined by US law or US courts as legally impermissible.  At this point in American law, it remains a question of policy: legal opinion, not legal fact.

            It’s good to see you back hereabouts, Mr. Critic, and it’s a pleasure to have a spot-on counterargument to reply to.  I don’t have time for any other kind anymore.Report

            • BSK in reply to Tom Van Dyke says:

              I am curious what makes my response above (3:10 PM on 3/17) not “a spot-on counterargument to reply to”? I quoted two sources which document various American institutions proscuting waterbarding as a crime, which directly counter you claim that “it’s not established by the legislature or the US courts that it [waterboarding] is [illegal].”Report

        • Mike Schilling in reply to Tom Van Dyke says:

           Mr. Schilling is correct.  It would be a slime job

          To be precise, my point is that Cheney would call it a slime job.Report

        • Michael Drew in reply to Tom Van Dyke says:

          There’s no reason the pardon of Cheney (and others associated) couldn’t be formally very similar or identical to the pardon of Nixon – i.e. nonspecific with respect to exactly what crime they may apply to.  What Nixon’s specific crimes were were also quite clear by that point.Report

  10. Matt Huisman says:

    Do you think Tom Daschle was shocked by much (any) of what was going on?Report

  11. Dan Miller says:

    I think this proposal would be a lot better than the status quo, and I’d take it in a heartbeat, even if it’s not my ideal situation.  I’d like to see a truth commission with subpoena power established as well, so that torture can be investigated (and a presidential pardon would, if I understand correctly, remove the 5th amendment when Cheney and others are called before said panel).Report

  12. Jeff says:

    No.  No pardon of Cheney.

    Every rotten act by a Republican administration, from Watergate, to the October Surprise, to Iran-Contra, to the invasion of Iraq, to torture, has been given a pass, usually as a Presisdential pardon.   We may not be able to try Cheney et al, but there’s no fishing way we should pardon him.Report

  13. Mike says:

    I don’t think Cheney would accept a pardon.  I think he would just snarl and dare Holder to indict him.

    Besides, I don’t think the Obama administration wants to set up that sort of precedent.  Not after continuing renditions, holding an Al Qaeda prisoner aboard ship in violation of US law, and signing off on assassinations of American citizens.Report

    • James Hanley in reply to Mike says:

      I don’t think you can reject a presidential pardon.  Sure, you can say you don’t accept it, but it’s been given through explicit constitutional authority that has absolutely no constraints (except that it doesn’t apply to impeachments).  It’s not a gift that can be rejected–no matter how much Cheney snarled, as a matter of American law he would be pardoned.  If he went so far as to demand  a trial on the facts to prove his innocence, he wouldn’t be able to get one because he couldn’t be indicted for what he’s been pardoned for.

      That’s why it’s such a damned good idea. It’s like a symbolic bill of attainder.


      • Mike in reply to James Hanley says:

        I can’t imagine this happening.  Even if you’re correct and Cheney has no legal ability to refuse a pardon, issuing one would be this administration stating that the previous administration was criminal.

        Now, how would that play if next year a President Romney elects to pardon Obama and Holder, without bothering to even make the case they need one?

        I really don’t think we want to go down this room of just pardoning each administration of criminality “just in case.”  I realize that some people hate Cheney so much that they don’t care if they start a precedent that’s damaging to the republic.  However, I suspect cooler heads would prevail, which Is why I don’t believe the Obama administration would try to pull this.Report

  14. Michael Drew says:

    There were certainly liberals who suggested this option much closer to when Obama actually took office.  It’s not ideal for most of them, but I think most of them would take it over no official action at all.  Of course, no official action is what is going to occur.

    I do agree with Mike that the precedent wouldn’t be great.  But it’s maybe marginally less bad than that there just be lawbreaking and no accounting for it at all.Report

  15. Liberty60 says:

    A pardon would be a stunt, nothing more.

    While it seems tha Cheny will escape the noose, maybe the most effective punishment is simply publicly damning him, over and over as the man who authorized torture. Note that no one seems to be saying it isn’t torture as commonly defined; nowadays contemporary defenders of Cheney have to resort to contorted legalistic appeals (it was not TECHNICALLY torture, as defined by hoopetydoopteylawschooljargonsassafras).

    Notice also that Bush/Cheney have been flushed down the memory hole of conservatism; any mention of their names gets a nervous- “why you bringin’ them up? That was like, oh, God, 3 whole years ago! But we should really talk about Stalin….”

    Which in most people’s eyes is as lame as it sounds.

    So in time Bush and Cheney will be like Nixon, or J Edgar Hoover- mocked and ridiculed and parodied, even by generations unfamiliar with them firsthand.

    Which I would call  a win, if even a faint one, for justice.Report

  16. Kolohe says:

    “[Manning] appears to be a confused individual ”

    It’s weird when all the Manning defenders bring out the ‘He’s gay’ defense.   Spits in the eye of all those who served honorably before DADT was repealed, those that have come out since it’s repeal, even those that came out (and were fired for it) before its repeal.

    “including incidents that he witnessed directly in Iraq.”

    Like, personally witnessed?  I doubt it, he was a fobbit, like just about everyone else in his MOS. (NTTAWWT)  He ‘directly’ witnessed them on his computer.  Like literallyjoebiden over 1 million other people also were able to, and who decided not to do the ‘whistle blowing’.  In quotes because it would be one thing if Manning just released the “Collateral Murder” video, but he (allegedly) went further than that.  He (allegedly) disseminated several entire databases, not just any (allegedly) ‘man, this malfeasance needs to be exposed’ part.


    • Mike in reply to Kolohe says:

      That’s what I don’t understand about the left defense of Manning.  He wasn’t a whistle blower.  The quantity of information he released was too large that he could have even read it all.  He was just getting back at the Army for whatever real or imagined slights he thinks he experienced.Report