Why Do Republicans Want to Give Nancy Pelosi the Pardon Power?
posted by Dave Hoffman
Pardoner of the House?
Is waterboarding torture? Charles Krauthammer argues today that because Nancy Pelosi was briefed about waterboarding in 2003 (after it happened), she blessed it.
“Our jurisprudence has the “reasonable man” standard … On the morality of waterboarding and other ‘torture,’ Pelosi and other senior and expert members of Congress represented their colleagues, and indeed the entire American people, in rendering the reasonable person verdict. What did they do? They gave tacit approval. In fact, according to Goss, they offered encouragement. Given the circumstances, they clearly deemed the interrogations warranted.”
I don’t understand this at all. The recently released Bybee/Yoo memo admits that waterboarding satisfies the predicate act requirement under the US Code -i.e., it is a “threat of imminent death” — an the only questions remaining are (i) what is the intent requirement; and (ii) was the resulting mental harm “prolonged.”
These aren’t moral questions. They are mixed questions of law and fact. Pelosi’s briefing provided her neither enough context nor enough facts to make headway at the definitional problem. That’s important because Pelosi – like all of us – operates on a presumption of government legality. She’s told: we’ve investigated the problem, and we determined that this technique is lawful. By sitting there, she’s at most agreeing to the proposition that if it was lawful, it is moral under certain circumstances. That doesn’t mean that if the behavior was unlawful she would have sanctioned it. For many, a determination of illegality makes a great deal of difference in determinations of morality. That’s why lawyers -and judges- have so much power in society.
But the “reasonable people” on the jury that may try John Yoo or Jay Bybee would have an different task: to determine guilt. They would be told about the known/contested science on the mental harm caused by waterboarding. They would be told facts about the captive’’s pre-existing mental state. They would be told about the number of times the captives were waterboarded, which may bear on what information the agents were really after. And they will be given competing stories about torture’s efficacy. And, finally, they will make a judgment. Not about whether the agent’s behavior was reasonable (that could be a decision in a civil trial, on a qualified immunity pre-trial motion). Rather, the jury will be asked if the prosecution proved the elements of a crime beyond a reasonable doubt. The only way I can see the agent’s reasonableness becoming relevant is if they raise a necessity defense. And I’m not even sure that they could, given the actual facts.
There are many times when the judgments of representatives in Congress can and do substitute for the mass of citizens. But here we’ve got a very specific criminal law which a few individuals may have violated. Maybe we shouldn’t have such a law, and maybe that law ought to be modified to give the President the authority to suspend it given certain findings. But the fact that a few members of Congress heard that we were engaging this activity is legally irrelevant to the agents’ and lawyers’ guilt.
Unless, perhaps, Krauthammer is looking to resuscitatethe good old days, when men were men, women were women, and Speakers were really, really powerful. Maybe he wants to give Pelosi a nudge toward legislative hegemony by usurping some of Obama’s power to pardon. I bet she could live with that.
May 15, 2009 at 8:03 am
Posted in: Constitutional Law, Criminal Law, Culture, Current Events, Politics
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Responses (2)
Jack Stanton - May 15, 2009 at 7:33 pm
Dave,
I am a bit perplexed by your post. Republicans attacking Pelosi probably care very little about the legal niceties. They care about draping the albatross of torture around Pelosi’s neck to damage Pelosi politically. They know that Pelosi is likely to remain in power as Speaker until Democrats start losing elections (and, were Obama reelected with a coattail effect, that could start in 2014), so I imagine they aspire to create a reverse Limbaugh effect: turn lying shrew Pelosi into the symbol of the Democratic Party, rather than super cool popular honest dude Obama. Pelosi the punching bag. Pinata Pelosi. It’s politics. Pelosi lies and smears our heroes of the CIA, our nation defenders, and the good guy Republicans are here to speak truth to powerful Pelosi and shame her into standing up for America. Look, in the sky. It’s a bird. A plane. No, It’s Jeb Bush in 2016.
Adam - May 17, 2009 at 12:20 pm
“But the fact that a few members of Congress heard that we were engaging this activity is legally irrelevant to the agents’ and lawyers’ guilt.”
That strikes me as entirely incorrect. As you noted, the legality of the interrogation techniques presents questions of law and fact. The fact that Pelosi and others in Congress may have agreed with the OLC’s legal analysis, or that they indicated no disagreement with the conclusion that the CIA’s actions in specific instances was not illegal strikes me as entirely proper reference points to note during a governmental investigation of the OLC’s analyses and the CIA’s actions. If the Executive Branch and Congressional leaders agreed as to the reasonableness of OLC’s legal analyses, then that should carry substantial weight in judicial-, congressional-, or other independent reviews.
Also, you err in concluding that “the only questions remaining are (i) what is the intent requirement; and (ii) was the resulting mental harm ‘prolonged.’” Even if analysis of points (i) and (ii) resulted in the conclusion that CIA interrogations violated that statute, the question remains whether such a statute binds the Executive Branch in the context of the war — i.e., the much debated constitutional separation-of-powers question.
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