Pushing the Limits of Presidential Power: The Bush Legacy

Since 9/11, President Bush has pushed the limits of presidential power in numerous ways -- although he has barely used the pardon power, among the most explicit executive prerogatives. At a press conference in February 2001, Bush responded to questions about Clinton's Rich pardon, saying, "Should I decide to grant pardons, I will do so in a fair way. I'll have the highest of high standards." By mid-2007 he had commuted the sentences of just three minor drug offenders serving long prison terms and issued 113 post-sentence pardons.

But after a federal appeals judge last year upheld the 30-month sentence of vice-presidential aide Lewis "Scooter" Libby for his role in the Valerie Plame spy scandal, Bush called the penalty "excessive," extolled Libby's "years of public service" and commuted fully his prison time. It was a clear demonstration of his willingness to protect top officials involved in his wartime policies.

So what of those responsible for torturing detainees? There is the distinct possibility that in his administration's waning days Bush will issue a preemptive pardon for all those who have or may have committed federal crimes relating to detainee interrogations. He might even invoke his father's Orwellian praise of the Iran-Contra defendants, who were pardoned because of their "patriotism" and "long and distinguished record of service to the country," and who the elder Bush believed had been caught up in "the criminalization of policy differences."

Such a pardon might seek to protect low-level government personnel who relied on legally dubious Justice Department memos on interrogations. But it would also provide blanket immunity to senior administration officials who bear criminal responsibility for their role in drafting, orchestrating and implementing a U.S. government torture program.

Constitutionally, neither Congress nor the courts can prevent President Bush from signing such a pardon. It would, however, be the first preemptive pardon in U.S. history for war crimes. And because of his own possible criminal role in approving the torture program, Bush effectively would be granting a self-pardon -- something Nixon seriously considered but no president has ever done. As he ponders his historical legacy, Bush might just decide that this is a pardon better left unsigned.