Nothing Bars Questioning President’s Bad Ideas

It appears that the Armed Forces of National Liberation, or FALN, has finally succeeded in triggering a political crisis. While this Puerto Rican terrorist organization had little political impact in its decade of killing and maiming innocent people, President Clinton’s clemency of 16 FALN terrorists has unleashed a chorus of protests and set off a minor constitutional crisis. Despite the unanimous finding of law enforcement agencies that they remained dangers to the public, the terrorists were released after giving a promise to renounce violence to a political system that they have never recognized or accepted.

In the aftermath of the clemency, Congress has moved to inquire into the process and information involved in the FALN decision. Many people were suspicious of the president’s motives when, after exercising this clemency power in only three cases, Clinton suddenly skipped over thousands of petitions, including some compelling cases of injustice, to release a group of unrepentant terrorists. The White House and many academics have responded that it is irrelevant why the president granted the clemency since he has unchecked authority to do so. Accordingly, the president invoked executive privilege and insisted that he has the right to refuse all information to Congress related to his motives or decision-making process.

Yet, the motive for presidential decisions is always an appropriate issue for congressional inquiry. In 1787, the abuse of the pardon power was a matter of concern during the drafting and ratification of the Constitution. In a speech that could have been taken from the current debate, one delegate noted:

“Should the president pardon . . . or afterward forgive notorious villains, or persons who should be unfit objects of mercy, this would be such a misfeasance of this office, as would subject himself to be personally impeached. He is as responsible for transactions in one part of his office as another.”

While no one is suggesting a new impeachment effort over the FALN decision, claims such as the president’s current one of privilege would prevent the public from determining the most egregious forms of presidential misconduct: the use of pardon authority for personal or familial gain, including cases of bribery.

During his terms in office, President Clinton has been subject to a series of rulings rejecting his view of executive privilege as extreme and unfounded. While some of the FALN material is appropriately withheld by the president, the current assertion is too broad and based on a flawed concept of our separation of powers. James Madison created a unique mix of checks and balances under the theory that, in order to prevent abuses by the branches of government, “ambition must be made to counter ambition.”

Both Congress and the president possess some absolute or unchecked powers that can be exercised without approval of another branch. Yet, there is a fundamental difference between the exercise of an unchecked power and the accountability for such decisions. It is even more important for Congress to satisfy public concerns over the use of unchecked powers than the use of a power shared by the branches.

Many Americans would agree that, in the realm of uniquely bad ideas, the FALN clemency ranks supreme. Yet, no one is suggesting that the president cannot make bad or even moronic decisions. Rather, there is a concern that there may be something more at play than simply bad judgment.

There is nothing noble in the president’s current position. Even in cases where valid executive privilege claims have been raised, past presidents have routinely waived those claims to assure the public and to answer their legitimate concerns. Thus, when he pardoned Richard Nixon, President Ford appeared on Capitol Hill to answer public concerns. In the Iran-Contra scandal, when President Reagan was accused of illegal conduct, he waived executive privilege to answer the core questions. President Clinton should do the same. A president is entitled to many privileges of office but immunity from informed public review is not one of them.