Today's topic: President Bush has issued few pardons compared to his predecessors, especially Bill Clinton. Is he missing an opportunity to correct some wrongs, or is he doing the right thing? Who, if anyone, should Bush pardon that he hasn't yet? I. Lewis "Scooter" Libby? The Border Patrol officers who shot an illegal immigrant? W. James Antle III and Glenn Greenwald discuss Bush's final days in office.
Avoid a Clinton-style "Pardongate" Point: W. James Antle III
It is often said, by both his admirers and his detractors, that Jimmy Carter has been a better ex-president than president. Barack Obama owes his election to George W. Bush's mistakes and failures as president, but he should be very pleased with the way Bush is leaving the presidency.
President Bush has mostly deferred to the president-elect on the major domestic policy questions. He has agreed to release the additional $350 billion in Troubled Asset Relief Program, or TARP, funds from the financial bailout. When a package to rescue the Big Three automakers in Detroit was tied up in Congress, Bush approved a bridge loan to keep the car manufacturers afloat until Obama could take office and negotiate his own solution. There has been a level of policy coordination between the incoming and outgoing administrations that has been unprecedented given the differences in party and ideology, to say nothing of the hostility on the campaign trail (Obama's opponent in the election may have been John McCain, but he won the presidency by running against Bush).
Now, many of these moves can be second-guessed as policy. I opposed both the bailouts of Wall Street and Detroit and think there is a good case to be made that releasing the additional TARP funds now could lead to waste and a lack of political accountability. But Bush's moves have provided a smooth transition and will make it easier for Obama to hit the ground running when he takes office Tuesday. As president, Obama will have the obligation to make his own policy judgments.
For the same reason, I think it is best for Bush to continue his relative stinginess with presidential pardons during the waning days of his administration. Whatever flaws there were to this approach earlier on, a series of controversial pardons now would be distracting and would serve nobody's interests.
To understand why, let's go back to the way Bill Clinton left office in 2001. On his last day in office, Clinton issued 140 last-minute pardons and commutations for political cronies and dubious characters, including the fugitive Marc Rich, whose former wife had been a substantial donor to the Clinton library. Even many Clinton supporters denounced these actions as disgraceful. The "Pardongate" controversy continues to haunt Democrats to this day, as it is likely to loom large in the confirmation hearings of Atty. Gen.-designate Eric H. Holder Jr.
As of this writing, it is being reported that I. Lewis "Scooter" Libby hasn't requested a pardon. Bush already rescinded a pardon for a Brooklyn developer whose father was a Republican donor that was extended without proper review. I have some sympathy for the campaign to pardon Border Patrol agents Ignacio Ramos and Jose Alonso Compean. But even that campaign has more to do with frustration surrounding Bush's refusal to secure our southern border and adequately enforce immigration laws than the legal merits of the case. Ramos-Compean pardons won't make up for Bush's immigration inaction for most of the past eight years.
Any high-profile pardons Bush is likely to issue at this point would only create unnecessary controversy and complicate a smooth transition. Bush doesn't need to leave the country with a Clinton-style "Pardongate." Two wars, a recession, unified Democratic control of the elected branches of the federal government and the impending bankruptcy of our major entitlement programs for retired Americans is quite enough.
W. James Antle III is associate editor of the American Spectator.
Bush isn't going that quietly Counterpoint: Glenn Greenwald
While you're right that the Obama and Bush teams appear to be coordinating rather smoothly in some areas, there are several last-minute steps Bush has taken that will, in effect if not by design, create serious problems. Just last week, the White House announced the appointment of 45 Bush cronies to various government boards and commissions, including some of his most controversial aides: Elliot Abrams, Atty. Gen. Michael B. Mukasey and White House Chief of Staff Josh Bolten. Many of those offices have a four- or even six-year term, meaning that Obama will be saddled with hard-core Bush followers in those positions.
More significantly, the Bush administration, immediately following Obama's November victory, transferred numerous political appointees (which are traditionally replaced immediately by a new president) into civil service positions (where removing them is much harder), thus creating long-term job security for these Bush-loyal partisans and depriving Obama of the opportunity to fill those positions. This practice is not new (Clinton did the same thing) and even has its own Beltway name ("burrowing"), but it is nonetheless obstructionist to the incoming administration.
And then there are the flurry of last-minute, new regulations that are clearly contrary to Obama's agenda. As U.S. News and World Report recounted Dec. 31: "In its closing months, the Bush administration has issued at least a dozen new important regulations and notices on energy and environmental issues, hitting upon everything from power plant emissions to safeguards for endangered species.... In [some] cases, the changes are dramatic."
These new rules range from loosening restrictions on dumping waste into rivers and streams to exempting entire sub-industries from environmental protections. And they are not as easily reversed as one might think. For the Obama administration to uproot many of these new rules will require long waiting periods or new congressional acts that will likely be arduous to negotiate and may therefore end up being subordinated to other, more important priorities.
Granted, that set of annoyances and impediments is somewhat common for an administration on the way out. By contrast, the Bush administration's game-playing with regard to Guantanamo Bay is far more than an ordinary irritant. That is the area in which one finds the most clearly intentional and bad-faith sabotage of Obama's plans.
Many of the detainees inside America's Cuban gulag have been languishing in cages for seven years without any charges being lodged against them and without any opportunity at all to contest the accusations. The Bush administration has demonstrated no haste whatsoever to try these detainees. Quite the contrary: Bush officials have been content to keep these individuals encaged for years without offering them any due process at all.
Suddenly, as Obama is close to being inaugurated along with his emphatic pledge to close Guantanamo, the administration rushes in a mad frenzy to commence the military commission of the most notorious detainee, Khalid Sheikh Mohammed, the alleged 9/11 mastermind. Doing this generated the most compelling media story line imaginable against closing Guantanamo: Finally, the 9/11 attackers get their due. But the far more significant impediment these actions created is that it is now certain that, once Obama is inaugurated, these military commissions will be in mid-stream: commenced but not yet completed.
By clear design, that procedural confusion creates a major complication in Obama's desire to close Guantanamo and shut down the military commission that accompanied them. How do you terminate that system when the "9/11 mastermind" himself is still in the middle of his "trial" -- a trial which raises numerous complex questions of law and fact that may take many months, if not longer, to resolve? Those actions were clearly an attempt to prevent, or at least substantially delay, Obama's plan to erase one of the truly dark stains on America's national character.
As for pardons, Jim, I agree with you wholeheartedly that last-minute pardons of high-level officials, such as Libby, would generate intense and well-deserved controversy. That's even truer of general pardons directed toward any and all executive branch officials who participated in illegal interrogation and surveillance programs as part of the so-called war on terror, as some conservatives are urging.
But while pardons of high-level political figures would be wrong, there is a massive need for pardons for ordinary Americans trapped by our unjust, draconian criminal laws. The U.S. now imprisons more of its population than any country in the world. We have less than 5% of the world's population yet incarcerate almost 25% of the world's prisoners. Many of those are petty drug-dealers or even people convicted of nothing more than mere drug possession. They have had imposed on them unbelievably harsh and long prison sentences as a result of mandatory minimum sentencing laws and vast sentencing discrepancies based on the type of substances they possessed or sold.
The pardon power was intended to be used in exactly such situations: where mercy advances the cause of justice, even when extending it may be unpopular. In that regard, the end of an administration may be the ideal time when ordinary Americans languishing in prison -- as opposed to powerful, corrupt politicians -- should benefit from this constitutionally enshrined presidential forgiveness.
Glenn Greenwald is a former constitutional lawyer, contributing writer at Salon.com and author of two books on the Bush administration.