ASSEMBLY LINE: Many of Bush's pardons will focus on crimes committed in the name of the "war on terror"

Prediction: Before leaving office, President Bush will issue a shockingly large number of presidential pardons to operatives who, with the administration’s blessing, ventured far outside the law to wage Bush’s “war on terror.” Bush may even owe some of his underlings use of the pardon pen, since they relied in good faith on radical legal opinions crafted by White House lawyers to justify an “anything goes” response to enemies real and imagined.

Pardons will be the only effective device by which Bush can give absolute protection to his underlings. Otherwise they may face prosecution under a new administration. Attorney General Alberto Gonzales’s efforts to convince Congress to enact legislation that would protect administration, intelligence, and military operatives from prosecution for illegal acts committed in the war on terror may fail to gain approval. And even if Gonzales convinces this highly partisan Republican-controlled Congress, a future Congress could repeal Gonzales’s protective statute. A presidential pardon, on the other hand, is final.

The Bushies’ concern grows out of recent developments. Congress, under the leadership of Republican senators John McCain, of Arizona, and Arlen Specter, of Pennsylvania, has expressed unease over the administration’s aggressive claims that a “war-time president” may override legal restrictions in order to protect the nation from its enemies, particularly in the areas of torture and citizen privacy. Even more threatening to the administration have been rumblings about war crimes from the current Congressional minority. And then there’s been a series of Supreme Court decisions explicitly rejecting some of the president’s more grandiose claims to unfettered executive power.

Interestingly, the most graphic indication of the danger presidentially empowered lawbreakers may face comes not from Washington but from Italy, where warrants are outstanding for 26 Americans, most believed to be CIA operatives. On July 6, the Los Angeles Times reported that among the 26, all of whom are allegedly involved in a kidnapping scandal, are the former CIA station chief in Rome and an Air Force commander. Their identities were recently disclosed after authorities arrested a top Italian spymaster. While none of the Americans, reported the Los Angeles Times’ Tracy Wilkinson, are currently under arrest in Italy, it’s a safe bet that none will be sightseeing at the Coliseum anytime soon.

At the center of this Milanese scandal is the February 2003 kidnapping of Egyptian Muslim cleric and suspected terrorist recruiter Abu Omar, which took place in Italy. The alleged CIA plot was carried out during the administration of then–prime minister Silvio Berlusconi, who claims to have been unaware of the secret operation but whose government, it appears, knew of and aided it. In May the Italian electorate voted out Berlusconi and installed a center-left coalition. Prime Minister Romano Prodi seems to be lending previously absent support to Italian prosecutors.

It’s enough to make Team Bush’s higher-ups, along with its shadowy operatives, shudder. The Italian warrants demonstrate how a voter-mandated changing-of-the-guard can lead to corrective prosecutions.

Beyond the limits of the law
The legal basis for Bush’s anti-terrorist program was hatched by David Addington, chief of staff and long-time legal adviser to Vice-President Dick Cheney, and John Yoo, currently a Berkeley Law School professor, shortly after the World Trade Center and Pentagon attacks. They were among the chief architects of such executive-strengthening legal constructs as the “unitary executive” theory and presidential “signing statements” that asserted the president could ignore those statutes he did not approve of but was unwilling to put through the political strainer of a veto. The plan attempted to lend legal cover to CIA, NSA, FBI, and military officials and operatives who became involved in a clandestine and almost certainly extra-legal presidential response to the Al Qaeda attacks. Aspects of the response likely (and reasonably) would have passed legal muster as temporary measures in the frantic and frightening weeks following September 11. But years later Addington and Yoo’s legal theories continued to undergird the anti-terror program without any administration effort to enlist the approval, or often the knowledge, of its co-equal branches of government, as required by the Constitution.

The “unitary executive” theory developed by Addington, Yoo, and their cohorts holds that, despite the fact that the Constitution, as any school kid knows, demarcates a system of checks and balances among the executive, legislative, and judicial branches, the president may exercise virtually unfettered authority to defend the nation. Although overlaid with fancy faux-scholarly position papers, the theory amounts to the risible notion that, because the president is named by the Constitution as “Commander-in-Chief” of the armed forces, he has the power to act alone on any matter implicating “national security,” broadly construed. But it just ain’t so.