Who else but Stuart Taylor? His argument seems to be that the best remedy for illegal acts of torture is to assure that (apart from some isolated low-level "bad apple" scapegoats) nobody is held responsible for them:
President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers. (It would be unseemly for Bush to pardon Vice President Dick Cheney or himself, but the next president wouldn't allow them to be prosecuted anyway -- galling as that may be to critics.) The reason for pardons is simple: what this country needs most is a full and true accounting of what took place. The incoming president should convene a truth commission, with subpoena power, to explore every possible misdeed and derive lessons from it. But this should not be a criminal investigation, which would only force officials to hire lawyers and batten down the hatches.[...]
Pardons would not be favors to criminals. One can argue that officials could have or should have resigned rather than implement questionable legal judgments, but there is no evidence that any high-level official acted with criminal intent.
There's an obvious contradiction here: If there's a great deal we don't know, how can we be sure that nobody aced with "criminal intent?" Wouldn't individual immunity deals, which don't require that assumption, be preferable to blanket pardons? But more importantly, if a legal opinion from DOJ lawyers (with the collaboration of their superiors) asserting that illegal and arbitrary actions are in fact legal is all that's necessary to avoid legal accountability for any administration member, any subsequent attempt to prevent similar abuses is a waste of time.
The key here is what Taylor identifies as the key goals of the "Truth Commission" he envisions:
Pardons would further a truth commission's most important goals: to uncover all important facts, identify innocent victims to be compensated, foster a serious conversation about what U.S. interrogation rules should be, recommend legal reforms, pave the way for appropriate apologies and restore America's good name. The goals should not include wrecking the lives of men and women who made grievous mistakes while doing dirty work—work they had been advised by administration lawyers was legal, and which they believed was necessary to prevent terrorist mass murder.
A criminal investigation would only hinder efforts to determine the truth, and preclude any apologies.
I have to concede that if you consider it an important priority that people responsible for arbitrary torture policies "apologize" and that we have a Very Serious "conversation" about torture, then pardons are a good strategy. If you take my view that preventing future arbitrary torture is an infinitely higher priority than people saying they're sorry, you're likely to think that justice and accountability are more important. All the best-conceived "legal reforms" in the world will mean absolutely nothing if a DOJ opinion can be expected to immunize virtually any action approved by an executive branch official as long as it can somehow be linked to the "dirty work" of the War on Terror.
--Scott Lemieux
