This discussion at the Volokh Conspiracy deserves more than the short comment I left there. Here is the excerpt quoted by Glenn:
ERIC POSNER: “Obama supporters should probably root for Bush to issue pardons. Bush might be just ornery enough to refuse.”
Here is the long version of my answer:
Two interesting things on this thread.
First seems the absolute assumption that that “torture” took place and was sanctioned by the White House. Apparently everybody here has seen Clear and Present Danger enough to know it is an absolute fact.
I have a young friend who I’ve known for most of his life. He was stationed at Gitmo and he said there was plenty of abuse going on, but it was of the guards by the prisoners who knew that the guards had to take it. The loose use of the word torture is particularly offensive when we’ve within the last week seen actual examples of it from our foes that carry no ambiguity, but seem to provoke less outrage among our intellectual class.
If is certainly possible that laws were broken and both those arguing for pardons and those arguing for prosecution have strong credible arguments in their favor. Laws are like muscles if not used they rot but personally I’m not inclined to go after people who successfully protected my family from attacks such as we’ve seen in India this week.
All of this being said here is the overriding consideration why, in my opinion the president-elect will not move on this issue regardless of what the current administration does. Frankly it’s rather crass.
You can take this to the bank: Any successful attack on American soil during an Obama administration is going to be wholly owned by not only that administration but the Democratic party.
It won’t matter how diligent or responsible the administration has been. It won’t matter that they acted in good faith which any fair minded person must assume. It won’t matter if like Hornblower in Hornblower during the Crisis members of the current administration and people who understand how hard it is to be right every time rush to their defense. The public will remember who succeeded in protecting the country and who failed particularly if a major population center is successfully hit.
Any kind of trials will be drawn out affairs and would likely be still going on during a successful attack. How much worse will it be for those who failed to protect the country if those who succeeded in protecting the nation are on trial during their failure? Would they risk it? Would they even consider it? Considering the history of the president elect who has a history of avoiding risk I think not. If his attacks on the current administration were mere rhetoric then he will never take the risk. If they were not I don’t know if he would have the moral courage to proceed and even if he did would people below him with less courage urge him against the risk?.
I just can’t see it, but it is moot because I think the current president will offer those pardons. He has already proved his willingness to take the slings and arrows of those who he has protected. I think he is comfortable enough in his skin to take one final hit for his country and for those loyal to him. The fanatical haters will just be louder but it would it would save the incoming administration from an additional burden. It would also keep national secrets from coming out at any trials. I think the current president has the guts to do it, but it will be a close thing since there is just enough of a that smirk in him to want to watch those who follow him stew in it.
I’m glad its his decision and not mine.