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.

After holding a McCain Palin sign on election day for 7 hours when the election was done I had this to say about the president elect.

You sometimes get a rookie pitcher with a winning season but usually not. I’m hoping for Chester Arthur but I’m expecting Jimmy Carter.

Well the staff picked so far seem to address my main concern which was not losing the war. It is very premature to say since the president elect is still the president elect for the next 49 days so we will have to see what they actually do when they are in there.

Well one vote for Chester so far

Running count Chester 1 Jimmy 0

Well I promised some politics so here is some:

I was thinking of the attacks on Mormons in California after Proposition 8 won by about the same margin that the President Elect won. There is an awful lot of self justification on the left for their actions and a lot of outrage on the right over the treatment of people. Why gets me is why anyone is surprised by any of it.

First of all consider before the election we were given the mantra that if (then) Sen Obama lost the election there would be rioting. Thus the legions of the left telegraphed that they would not be good losers.

Second of all the lack of attacks on Black Churches and too some degree Catholic Churches are due to the political ally rule. As the Black church is part of the democratic coalition it can’t be attacked or protested, the Catholic Church particularly in LA is left leaning and also highly Hispanic. The left’s history shows that any behavior of a person or group can be excused if it is a political ally. See Congressman William Jefferson D-LA and President William Jefferson Clinton misogyny of.

Third of all the lack of attacks on Islamic Mosques are simple cowardice. See the Mohammad Cartoon of South Park where the network had no problem going after Jesus in the episode but were afraid of having their throats cut if an image of Mohammad was shown being handed a helmet with a fish on it by Peter Griffin. Cowards never attack those who will fight back.

Finally although my fellow Catholics in general and Christians in particular may dispute the definition of Mormons as Christians, no believing Christian should be surprised at the attacks on Christians in general and/or Mormons in particular and the tact support of the media on said attacks. This is part of the job description of Christianity see John 13:16 and John 15 18-22. Any Christian who doesn’t understand this doesn’t understand what Christianity is.

This doesn’t mean that one shouldn’t opposed this behavior. One of my rules of life is the right thing is generally the smart thing too. Our friends on the left should refrain and condemn this behavior because it is wrong but if they won’t for that reason they should oppose it because if it smart to do so. They only need a swing of 4 percent in a future election and they have the media and most of the culture on their side. They are forgetting the lessons of history and will only turn people against them particularly in the privacy of the ballot box. People who feel repressed concerning their opinions tend to get their release in their voting booth. The left’s “fairness” argument is their strongest argument that should be their primary one.

Job description or no we on the right who supported prop 8 should take every opportunity to take the over the top behavior and intimidation of the left and hold it up in the light for all to see. The justifications of such behavior out there would make those at any Nazi, KKK, National Party of South Africa pre 1990, Know Nothing or Al-Qaeda member proud. Fair mined people will see that.