"Pardon Me!"

dueler88

A non-Bush-fan/centrist Republican professional colleague/friend just sent me the following email:

did you guys hear about this?

Bush is attempting to pardon himself and his administration for war crimes before congress is out of session

http://www.youtube.com/watch?v=MoRjbIQMXGQ

[In the video, CNN’s Jack Cafferty launches a salvo at Bush that ends with this central question involving the current anti-terror legislation in congress: “Should congress pass a bill giving retroactive immunity to President Bush for war crimes?”]

The following was my response:

Beyond the labels that Jack is throwing out, the situation DOES make sense. When the Geneva conventions were crafted in the Westphalian nation-state context, terrorism wasn't a viable form of warfare. Now, however, because of the potential scale of terrorism, it is a viable debate about whether or not it should be seen as, and treated as, "warfare". So Geneva is obviously not able to address the current situation we're in. Is warfare by proxy, from either a nation-state or an ideological conglomeration, still warfare?

What the court decision did was throw the whole question of legal conduct from the executive branch to the legislative branch. Which I agree with. This should have been done a long time ago. The president should not be making laws, and we (our legislative representatives) really need to clarify how we (the executive branch) are to combat terrorism.

Which brings us to the legislation in question. The "retroactive pardon" thing sounds fishy on the surface, but we have been making things up as we go along since 9/11/01 because the situation is totally unprecedented. If I were in the president's shoes (regardless of my party affiliation), I sure wouldn't want to have somebody prosecute me, well after the fact, for making decisions that I felt were proper and legal in an unprecedented context of a real threat to national security. There were no clear rules of engagement that the executive could use in this situation - until now. As a basic issue, it would be like (to use the Schoolhouse Rock “I’m Just A Bill” example) prosecuting all of the school bus drivers that didn't stop at railroad crossings before the law requiring it was passed. A much more benign example, but you get my point.

To give a historical example: was it proper or legal for Roosevelt to order the internment of American citizens of Japanese ancestry? Proper, probably, but not necessarily legal. In hindsight, would it have been proper to prosecute Roosevelt for this and other potentially illegal (but proper in the context of warfare) acts, had he been alive at the end of the war? This question is perhaps much easier to answer than our current question because the country was undeniably at war, in the nation-state/Westphalian sense.