Should Bush pardon any or all top officials who might be in jeopardy of prosecution, to the extent that they acted in good-faith reliance on advice of government counsel? I so suggested in a Newsweek piece in April. I advocated instead that Obama appoint a truth commission of some sort, and I suggested that pardons might actually make it easier for a truth commission to get at the truth. I am less confident now that either pardons or a truth commission would be a good idea, although both should be considered.
My reasons for being less confident: First, if it becomes clear before Bush leaves office that Obama has no intention of throwing the book at Bush's team based on abusive interrogations, pardons might not be necessary. Second, it would be a tricky and arguably impossible business to issue pardons conditioned on proof of good-faith reliance on advice of government counsel. Third, an Obama campaign adviser told me that a truth-commission-type inquiry would stir up partisan animosities (though less than a criminal investigation would) in a way that could create problems for Obama's forward-looking agenda.
Jack Goldsmith recently laid out other compelling arguments against truth-commission-style investigations in a Washington Post op-ed. He points out that investigations have costs. In particular, he argues, "the greater danger now is that lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment. This was a serious problem before Sept. 11, and many believe it led to governmental structures and attitudes that precluded detection of the Sept. 11 plot."
Goldsmith was, of course, a Bush appointee. But I have heard some very astute Obama supporters express similar views.
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