A departing president probably can’t help thinking about the judgment of history. At the end of eight years, President Bush likely isn’t any different. With the nation’s attention focused on his successor, it may seem as if there is little opportunity left for the current president to affect how he will be viewed. But there is one power left — the power of the pardon — that could, if it’s abused, create a controversy that both the president and the public could live without.
The power of the pardon is close to absolute. Short of interfering with their own impeachment, presidents can pardon whomever they choose. At the end of his term, however, this president should think twice before issuing pardons that call his judgment, and the integrity of the rule of law, into question.
If President Bush were to pardon key individuals involved in the misdeeds of his administration, from warrantless wiretapping to torture to the firing of U.S. attorneys for political reasons, the courts would be unable to address criminality, or pass judgment on the legality of some of the president’s worst abuses. Issuing such pardons now would be particularly egregious, since voters just issued such a strong condemnation of the Bush administration at the ballot box. There is nothing to prevent President Bush from using the pardon in such a short-sighted and self-serving manner — except, perhaps, public pressure that may itself be a window on the judgment of history. Everyone who can exert that pressure, from members of Congress to the press and the public, should express their views on whether it would be appropriate for President Bush to use his pardon power in this way.
Controversial pardons are nothing new, of course. President Gerald Ford’s pardon of Richard Nixon, which was a source of furious national debate, is perhaps the most famous of these. More recently, President Clinton issued a series of last-minute pardons that were highly criticized. Yet the power can also be used to show mercy — Clinton used the pardon power a number of times to lessen the impact of draconian mandatory minimum sentences for certain drug offenders.
The use of the pardon power throughout history has been just as varied. Presidents Andrew Johnson, Buchanan and Carter used the pardon power to try to heal national divisions and promote unity. Buchanan, for instance, in return for an oath of loyalty to the nation, pardoned Mormon settlers in Utah who had been accused of treason. It was Johnson’s extensive use of pardons after the Civil War that prompted Congress to try to limit the pardon power, which led to the Supreme Court’s seminal decision, Ex parte Garland, confirming its nearly unlimited scope. The pardon power outlined in the Garland decision is sweeping — “it extends to every offence known to the law, and may be exercised at any time after its commission.” But that doesn’t mean that all pardons are appropriate or serve the common good. The current president’s own father, George H.W. Bush, pardoned six participants in the Iran-Contra plan, including Caspar Weinberger, Elliott Abrams and Bob McFarlane, whose trials might have exposed his own involvement.
Writing in the Garland case, the Supreme Court said of presidents’ pardon power that “the benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” The history of the use of the presidential pardons shows that while presidents sometimes exercise the benign prerogatives of mercy, that is not always their motivation. Nonetheless, while there may be almost no legal limits on presidential pardons, there certainly are limits to what the public will see as a reasonable use of the power. The current president, who has shown such disrespect for the rule of law during his term, will have a chance to show to all of us, and to history, whether he respects it enough not to short-circuit the judicial process after he leaves office.
Many Americans remember the tragic deaths of U.S. troops in Somalia in the early 1990s, vividly portrayed in the movie “Blackhawk Down.” Those 18 service members died in a misguided, poorly defined military mission that had dragged on without an end date and without the support of the American people.
As Congress debates the war in Iraq, the congressional debate over Somalia 14 years ago has some surprising parallels. Without question, Somalia in 1993 differs in many ways from Iraq in 2007, from the scope of the mission to the reason for that mission in the first place. What hasn’t changed, however, is Congress’ constitutional power to end a military mission, and its ability to use that power without endangering the safety of our brave troops.
That is exactly what Senate Majority Leader Harry Reid and I propose to do with legislation we will introduce when the Senate reconvenes next week. Our bill would require the president to begin safely redeploying U.S. troops out of Iraq in 120 days, with redeployment to be completed by March 31, 2008. After March, funding for the war in Iraq would be cut off, with three narrow exceptions — targeted counterterrorism operations, protection of U.S. personnel and infrastructure, and training and equipping Iraqi forces. In other words, the current military mission in Iraq would be effectively ended. Sen. Reid has said he will work to make sure the Senate votes on our bill by the end of May.
Since President Bush has made it painfully clear that he has no intention of fixing his failed Iraq policy, it is no longer a question of if Congress will end this war; it is a question of when. The Feingold-Reid bill may be attacked by those who support this misguided war. But for many members of Congress, what they say and do now about Iraq flies in the face of what they said and did in 1993 regarding Somalia.
Today, some supporters of the Iraq war suggest falsely that efforts to cut funding for the war are a threat to our troops in the field. But in 1993, senators overwhelmingly supported successful efforts to cut off funding for a flawed military mission. Defenders of the Iraq war pretend that cutting off funds for the war is the same as cutting off funds for the troops, and raise the specter of troops being left on the battlefield without the training, equipment and resources they need. Every member of Congress agrees that we must continue to support our troops and give them the resources and support they need. And every member of Congress should know that we can do that while at the same time ending funding for a failed military mission. That was clearly understood in October 1993, when 76 senators voted for an amendment, offered by Sen. Robert Byrd of West Virginia, to end funding for the military mission in Somalia effective March 31, 1994, with limited exceptions.
None of those 76 senators, who include the current Republican leader and whip, acted to jeopardize the safety and security of U.S. troops in Somalia. All of them recognized that Congress had the power and the responsibility to bring our military operations in Somalia to a close, by establishing a date after which funds would be terminated.
The same day that the Senate voted on the Byrd amendment, 38 senators — myself included — supported an even stronger effort to end funding for Somalia operations. The amendment offered by Sen. John McCain on Oct. 15, 1993, would have eliminated funding for operations in Somalia immediately, except for funds for withdrawing troops or for continuing operations if any American POWs/MIAs were not accounted for. The mostly Republican senators who supported the McCain amendment were not disregarding the safety of our troops, or being indifferent to their need for guns, ammunition, food and clothing. They were supporting an appropriate, safe, responsible proposal to use Congress’ power of the purse to bring an ill-conceived military mission to a close without in any way harming our troops.
Then as now, by setting a date after which funding for a military mission will be terminated, Congress can safely bring our troops out of harm’s way. As Sen. Orrin Hatch said at the time, “The McCain amendment provides the president with the flexibility needed to bring our forces home with honor and without endangering the safety of American troops.”
The debate about the Iraq war is the most important, and the most difficult, issue we face as a country. Any American, including any member of Congress, is entitled to support or oppose Congress’ using its constitutional power to end our involvement in this disastrous war. But, in contrast to the 1993 debate about Somalia, today some wrongly suggest that ending funding for the Iraq war is tantamount to ending funding for the troops. That misleading argument makes it harder to have the thoughtful, responsible debate about the war that Congress and the American people so badly need.
Now is no time for phony arguments against ending funding for the Iraq war. There may be big differences between the military missions in Somalia and Iraq, but Congress’ constitutional power to end a military mission hasn’t changed, and neither has the fact that this power can be used without jeopardizing the safety of U.S. troops. As Congress debates Iraq — and considers the new Feingold-Reid legislation — we should remember Somalia, put false arguments aside, and have an open, honest debate about a war that drags on with no end in sight.
Congress is gearing up for a big Iraq debate next week. The Senate will take up the John Warner-Carl Levin resolution, which some are portraying as an important, symbolic rebuke of the president’s Iraq policy. Symbols can be powerful, but only if they have substance behind them. Read the fine print of the resolution itself, and you will find that it is not a rebuke at all. In parts, it reads like a reauthorization of the war, rejecting troop redeployment and specifically authorizing “vigorous operations” in part of Iraq. This resolution isn’t a symbolic rebuke of the president; instead it symbolizes a Congress that is too timid to challenge the president’s failed Iraq policy.
Under the guise of constructive criticism, this resolution signs off on the president’s policy of maintaining military operations in Iraq indefinitely. While a resolution like this might have been all you could expect from a Republican Congress, it hardly seems like the product of a Congress under new Democratic leadership.
After voters registered their opposition to the war last November, the new Congress was supposed to offer dramatic change. Instead, less than a month into this Congress, some members in both parties have rallied around a resolution that endorses the catastrophic status quo in Iraq.
Beyond a tepid disagreement with the president’s “surge” strategy, this resolution does nothing to stop the escalation. It even rejects “any immediate reduction in, or withdrawal of, the present level of forces.” For Congress to reject bringing troops out of Iraq, after almost four years of a disastrous policy, makes no sense. It ignores public outrage over the war and the need to address other pressing national security priorities. The American people recognize that there is no U.S. military solution to Iraq’s civil war. And as long as we focus disproportionate attention and resources on Iraq, we will not be able to counter the full range of threats that we face around the world.
The resolution also fundamentally ignores the reality on the ground in Iraq. The resolution calls for continuing “vigorous operations in Anbar province, specifically for the purpose of combating an insurgency.” This is a recipe for disaster. Al Anbar province is where a majority of U.S. troops have been killed in Iraq. The insurgency there, as well as general opposition to the U.S. presence and to the Shiite-dominated government in Baghdad, is fueled by the Sunnis’ political and economic grievances. Conducting targeted missions to take out terrorists makes sense; using U.S. troops to put down an insurgency doesn’t. Maintaining a substantial U.S. presence in a primarily Sunni area, without a political solution, means a continuation of our unending, and self-defeating, policies in Iraq.
Finally, the resolution tacitly rejects the idea of Congress using its power of the purse to safely redeploy our troops from Iraq. By warning against “the elimination or reduction of funds for troops in the field,” the resolution embraces the same misleading rhetoric the White House uses to prevent any discussion of Congress’ ending the war. Every member of Congress agrees that we must continue to support our troops and give them the resources and support they need. By setting a date after which funding for the war will be terminated — as I have proposed — Congress can safely bring our troops out of harm’s way. As one leading legal expert, Walter Dellinger of Duke Law School, testified about my proposal:
“There would not be one penny less for salary of the troops. There would not be one penny less for benefits of the troops. There would not be one penny less for weapons or ammunition. There would not be one penny less for supplies or support. Those troops would simply be redeployed to other areas where the armed forces are utilized.”
Instead of allowing the president’s failed policy to continue, Congress can and should use its power of the purse to end our involvement in the Iraq war, safely redeploying the troops while ensuring that important counterterrorism missions are still carried out.
We should be coming up with a strategy for post-occupation Iraq and the region that is squarely within the context of the global fight against al-Qaida. That means replacing a massive, unsustainable and unlimited military mission with a long-term strategy for mitigating the mess left behind by this war. With such a strategy, we can redirect substantially more resources and attention to the fight against al-Qaida and other international terrorist organizations.
While bipartisanship is a worthy goal, and symbols have their value, this resolution sacrifices far too much in the name of symbolism and compromise. As long as this president goes unchecked by Congress, our troops will remain needlessly at risk, and our national security will be compromised. This resolution fails to check the president, or to change his disastrous Iraq policy. It essentially authorizes the failed strategy that the American people rejected in November. For the sake of our troops, and for our national security, Congress should take real, binding steps to challenge the president’s policy and bring our troops out of Iraq.
It seemed like a watershed moment for the Democratic Party. At the end of 2005, Democrats, along with a small band of Republicans, stopped a bad Patriot Act reauthorization bill in its tracks. For me, it was gratifying to have so many in my party openly share — and act on — the concerns I had voiced about the Patriot Act back in 2001. But, more importantly, Democrats had decided to stand up to the White House’s scare tactics and stand for protecting the rights of law-abiding Americans. Finally, Democrats were refusing to be intimidated by suggestions that protecting our freedoms is inconsistent with fighting terrorism aggressively. This moment was long overdue.
Unfortunately, it was also short-lived. Just two months later, a number of Democrats have agreed to support a reauthorization of the Patriot Act that is basically the same as the deal we rejected in December, and doesn’t solve any of the significant problems with the law that Democrats claimed they were concerned about.
Under this deal, the government can still access the library or medical records of someone with no connection to terrorism. After four years of public outcry over Section 215 of the Patriot Act — the so-called library records provision — and after the Senate unanimously passed an amendment fixing this provision in July, apparently a number of my colleagues have decided that government fishing expeditions aren’t such a big deal.
Almost as bad, the deal fails to fix the “gag order” that prevents businesses from telling anyone that they’ve received a Section 215 order for records. The deal keeps the gag rule in place for a year; after that, the recipient can challenge the gag order in court but under rules that make it almost impossible to win.
The deal also fails to address the concerns Democrats expressed about news reports of growing use of National Security Letters, which don’t even require a judge’s approval, to obtain records of electronic communications, credit reports, and financial records. And it leaves in place the much criticized “sneak and peek” provision, which allows the government to secretly search Americans’ homes in criminal cases that have nothing to do with terrorism or espionage.
These are some of the provisions of the Patriot Act that pose the biggest threats to our freedoms, yet some Democrats are happily supporting a deal that leaves them firmly in place. That’s hardly a victory for our party, or for the effort to protect our liberties as we fight terrorism.
It took a long time for Democrats to step up and challenge the administration’s baseless assertions that the Patriot Act could not be changed without threatening the security of the American people. When we finally did so, when we decided to make the case that we can fight terrorism and protect our American principles at the same time, it looked like Democrats were finally ready to stand on principle and offer strong leadership.
Instead, too many Democrats have folded, and momentum for critical changes to the Patriot Act to protect our freedoms has been squandered. Some Democrats may be breathing sighs of relief that the president can’t use this issue to paint them as “soft” on terrorism. But we’re not doing the party or the country any favors by refusing to challenge an administration that views our freedoms as collateral damage in the war on terrorism. If Democrats aren’t going to stand up to an executive who disdains the other branches of government and doesn’t worry about trampling on the rights of innocent Americans, what do we stand for?
Expect Democrats and some Republicans to insist that they have won some significant improvements to the Patriot Act. Don’t believe it. The few minor concessions they got from the White House are a fig leaf to disguise a complete about-face. Thanks to this deal, the White House will be emboldened in its fear-mongering, Democrats will be perceived as timid, and the American people will still face the prospect of government intrusion into their private affairs. Some deal.
There has never been more frustration with the war in Iraq, and less clarity about our mission there, than we face today. More and more Americans want to know when our troops will come home, and more and more experts agree that our presence in Iraq is fueling the very insurgency that has claimed so many lives. And while we haven’t heard the administration clearly articulate our military mission in Iraq, there is another silence that is just as deafening — the lack of a debate in Congress about how and when that mission will be brought to an end. While senators are rightly calling for explanations about how intelligence was used to make the case for war in Iraq, there is scant attention to how and when the U.S. should bring its primary military mission in that country to a close.
We have an opportunity in the Senate, however, to finally hold this long-awaited debate. The Senate is poised to consider the Department of Defense authorization bill. That legislation includes $50 billion primarily for operations in Iraq, in response to funding requests from an administration that has refused to budget for the costs of our ongoing operations in Iraq, and refused to make the hard choices that would be required to cover those costs.
Congress has continued to approve funding to support our brave servicemen and women in Iraq. But when it comes to making sure that our military mission in Iraq is clearly defined and tied to a flexible timetable, Congress has, quite simply, dropped the ball. We have abdicated our responsibility to get some clarity about the U.S. military mission in Iraq, and members of both political parties have been downright skittish about even calling on the president to provide a timeframe, however flexible, to bring that military mission to a close.
A military timetable won’t solve all our problems in Iraq, nor will it signify American disengagement from that country. Intense American diplomatic and political efforts will likely be needed long after the troops’ mission is accomplished and they are withdrawn. I expect that we will also continue military and security cooperation with the Iraqis, as we work with them and with others around the world to combat terrorist networks.
But a flexible, realistic timetable could undercut the insurgency that rages in Iraq, an insurgency that thrives on conspiracy theories and suspicions regarding American intentions. A timetable would also encourage Iraqi ownership of their country’s political process, moving Iraqis toward real political independence by making it clear that the U.S. will not be there indefinitely. Finally, a timetable would enable us to devote more resources to the most pressing national security issue we face — combating the global terrorist networks that continue to threaten this country.
The Senate should insist that the president provide a flexible timetable for military withdrawal. So far, however, it has been too timid to even debate this issue. Americans all across the country are talking about Iraq — in coffee shops and in high schools and at football games. People wonder about the terrible price we are paying to fight this war, what exactly the U.S. military mission is, and when it will end. Americans talk about these issues every day, and yet Congress keeps ducking the tough questions.
The American people deserve a full congressional debate about the U.S. mission in Iraq. And our service members in Iraq, and their families, deserve a clear explanation of the mission they are serving and the time frame, tied to realistic benchmarks, for completing that mission. We need to continue providing these brave men and women with the resources they need in Iraq. But we also need to give them some long-overdue answers.
There was a great deal of attention paid to the 2,000th casualty in Iraq, which served as a sobering reminder of how many brave Americans have lost their lives in the war. But what about the soldiers who died in Iraq in the weeks and months before that, or the soldiers who are yet to die in Baghdad, or Tikrit, or on the streets of Basra? We owe each and every one of these soldiers, and their families, and the nation they serve, serious congressional debate and action.
The Senate has an opportunity next week to demand a course correction for an Iraq policy that is dangerously adrift. We cannot afford to wait any longer for the administration to act. The sooner the Senate acknowledges this responsibility, the sooner we can bring some clarity, and some direction, to the U.S. military mission. Until then, the American people will be waiting, and the silence will be deafening.
