Could George W. Bush Pardon Himself?
As President George W. Bush approaches the end of his final term,(finally)the question of impeaching him for war crimes has arisen once again.
Before leaving office, it is expected that President Bush will issue a very large number of presidential pardons to his operatives who, with the administration´s blessing, ventured far outside the law to wage Bush´s "war on terror." It is difficult to imagine just how long that list of pardons might be, since so many in the Bush White House relied in good faith on radical legal opinions crafted by his own White House lawyers to justify an "anything goes" response to the "enemies", both real and imagined.
After the US Supreme Court had finally ruled that the Geneva Convention applied to US detainees, it's no wonder the administration and the Republican politicians scrabbled to get "absolution" for the various torture incidents that had previously been well reported in the news, including the international news. This includes reports of the torture of prisoners, violations of human rights while in US custody and "Rendition", a term used by the Bush Administration where a prisoner is shipped off to a foreign country where they "specialize" in torture techniques.
After the Supreme Court ruling, the US House of Representatives and the Senate "scrambled" and was successful in passing a bill "redefining the treatment of detainees" while the Republicans were still in control of the US Congress. Inside the bill is a portion that gives the administration a full "pardon" of any crimes regarding the war. But does this mean that the President could also be pardoned or could "pardon" himself? This is an interesting question, because the text of the Constitution conflicts with common understanding. On a literal reading of the Constitution, the President could pardon himself, as no limitations are placed on whom he may pardon. However, the principle that no person may be the judge of his own cause was fundamental to the framers of the US Constitution. Most constitutional scholars do believe that the President may not pardon himself. In any case, no President has ever attempted to do so -- not even Richard Nixon, who left office facing a variety of possible criminal charges.
Section 2 of the Constitution says the President "shall have the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Of course, if someone other than the President is convicted by the Senate, the President may pardon him with respect to the criminal justice system. That way, although the official is removed from office, he does not face criminal prosecution. If the President were convicted by the Senate, he could not pardon himself with respect to subsequent prosecution because he would no longer be president.
Could the President, prior to conviction by the Senate, pardon himself with respect to any future criminal prosecution (much as Gerald Ford pardoned Richard Nixon with respect to any future prosecution)? This possibility has never been tested and as stated before, the text of the Constitution conflicts with its common understanding, so this would be treading into new "Constitutional" territory. The issue would probably become another issue for the Supreme Court.
If outside pressure were to cause the President to resign, would that stop an impeachment process? Not necessarily. Could Congress impeach and try someone who is no longer in office? Yes. It has happened before in 1876. Secretary of War; General William Belknap, accused of accepting a bribe, resigned just hours before the House was scheduled to consider articles of impeachment. The House went ahead and unanimously impeached him, and by a vote of 37-29 the Senate rejected the argument that Belknap's resignation should abort the case.
By contrast, when in 1926 Illinois District Judge George English, impeached for various acts of wrongdoing, resigned from office six days before the scheduled commencement of his trial in the Senate, the matter was discontinued. The same was true, of course, when Richard Nixon resigned just prior to adoption of articles of impeachment by the House.
There is a direct and practical reason why a Congress might choose to proceed with an impeachment, even after a resignation. One potential punishment of impeachment is disqualification from holding a future office. If an embattled president did resign, Congress could choose to go ahead and impeach, try, and convict the President which would disqualify him from holding any future office. Evidence suggests that the framers of the Constitution concurred in this conclusion. They did not regard resignation as automatically precluding impeachment or conviction.
Now, there is another potential problem for this President and his administration. Violations of The War Crimes Act, US Law and International Law can carry from many years in prison, to life in prison..and in some cases..the death penalty. Benjamin Ferencz, the former chief prosecutor of the famous Nuremberg Trials after WW II, says there is an international case for trying President Bush for a; "supreme crime against humanity and an illegal war of aggression against a sovereign nation."
Most Americans firmly believe there is nothing the United States or its political leadership could possibly do that could equate to the crimes of Hitler's Third Reich. The Nazis became the "gold standard of evil," as author John Dolan once put it.
The truth is, the Bush Administration has done it most recently and significantly in Iraq. Perhaps no person on the planet is better equipped to identify and describe Bush's crimes in Iraq than Benjamin Ferencz. The former chief prosecutor of the Nuremberg Trials successfully convicted 22 Nazi officers for their work in orchestrating death squads that killed more than one million people in the famous Einsatzgruppen Case. Benjamin Ferencz, now 87, has gone on to become the founding father of the basis behind international laws regarding war crimes. His essays and legal work, drawing from the Nuremberg trials and later the commission that established the International Criminal Court have remained a lasting influence.
Ferencz's biggest contribution to the war crimes field is his assertion that an unprovoked or "aggressive" war is the "highest crime against mankind". It was Bush's decision to invade Iraq in 2003 that made possible the horrors of Abu Ghraib, the destruction of Fallouja and Ramadi, the tens of thousands of Iraqi deaths, civilian massacres like Haditha, and on and on. Ferencz believes that a "prima facie case can be made that the President of the United States is guilty of the supreme crime against humanity. That being an illegal war of aggression against a sovereign nation."
Some of you may be feeling that of course; "this will never happen", but you may also be angry that the scumbag Bush might just get his day in court. Please, just bite your lip and remember, America has always tried to stand for "Liberty, Justice and fairness". If we are fortunate and he does get taken to task for his illegal activities, and we did not allow his day in court, how are we any different than all the other "scumbags"? How can we stand up in the world and demand "freedom, liberty and fairness" if we don't pursue those virtues ourselves? We either believe in those ideas, or we go down in history as the "supreme hypocrite". People who believe that the end justifies the means, at the end of a gun as Bush has done, this is not what America was founded upon.
We must respect the rule of law, even for a scumbag like George W. Bush.
Gary Alter - May 2, 2008 - posted at www.americanchronicle.com