Sunday, March 12, 2006

toward a new New Deal: challenging the coming wave of pardons...

...political lamp is still lit...

I’m pleased to see online discussion of my suggestion for a “New Democratic Deal for the American People” (http://www.davidbrin.com/contract.html), as a way for Democrats to get their dissipated and disorganized act together.

Can we look into the past and find a moment in recent history that might serve as their inspiration at this crucial time? Let there be no mistake. The Democratic Party’s present situation is very similar to the Republicans’ - just before the mid-term elections in 1994, when both Congress and the Presidency were in Democratic hands. At that time, the GOP faced similar challenges in crafting an appeal to voters that might help them to achieve a dramatic turnaround in power.

Only fools can pretend that the so-called Neoconservative Revolution of that year was not brilliantly handled by its then-leader, Newt Gingrich, who helped the GOP craft its message with crystal clarity. Conveying the impression of a party with righteous and determined ideas, the “Republican Contract With America” seemed to offer a crisp and cogent deal to voters... including an implicit promise to accept punishment in the event of betrayal or failure.

(A promise that today’s GOP fervently wants the same voters to forget!)

Without any doubt, Gingich’s “Contract” was among the most brilliant acts of political polemic in a lifetime. If we are serious about politics, we will not only study it, but look into taking advantage of the Contract’s successes... and its subsequent blatant failures.

My proposed rough-draft of a “New Democratic Deal for the American People.” is deliberately patterned not only to show how that original Contract’s promise to the people was betrayed, but also to use the same breakthrough technique of clarity as a political weapon.

Achieving this goal does not ultimately require that such a “Democratic Offer” must slavishly follow the Gingrich template! (Though I do so in my prototype “offer,” for the sake of clear comparison. Moreover, it allows some dramatic impact.)

Nor is it necessary that such an offer use the specific proposals and issues that I include in my draft example. (Naturally, that expectation would be arrogant, even for me!) Still, I am pleased that many people out there have responded positively to some of the planks that I wrote down, including (for example) the idea of establishing an office of Inspector General of the United States (IGUS).

But let’s focus. Here, in this space, I’d like to address another of those unique proposals. Among the most important promises that the Dems could make would be to vow that they will, upon retaking Congress:

1) Dare the President to swear immediately that he will pardon no more than twice the total number of people pardoned by BOTH previous administrations, combined.

It's a great no-win situation to thrust upon him. First, it turns public attention to this vital issue, showing that we expect an absolute tsunami of pardons from this administration, especially after the 208 elections. Second, it puts him in a terrible spot. He loses if he says yes OR if he says no!

2) Furthermore, a new, Democratic-led Congress will pass a bill DEFINING the process of Presidential pardoning, so that it includes a requirement that all pardoned individuals spend a day testifying, under oath, before a "truth & reconciliation commission," giving all details about whatever it is they’ve been pardoned for. Under this bill, the President’s pardon is defined as applying only to things that the pardonee discusses, in detail!

Of course, this is especially relevant for people who are "pardoned in advance." (An especially nasty kind of get-out-of-jail-free card that almost-certainly the Founders never had in mind.)

Imagine how many guys are out there, currently grinning in blithe confidence and relying utterly on that getting that free pass, as they’ve been promised, in 2008. Not only assured safety from jail, but from ever having to answer questions! How they would plotz upon seeing that bill pass. How many rats would start diving overboard, copping pleas and tattling on each other, if that happened? Perhaps as early as January 2007!

(Or else... might this only trigger the coup early?)

Of course, every magic bullet has its problems. Most notable for this “great idea”... in the past, the United States Supreme Court has ruled that Presidential authority to grant pardons is “unfettered.”

In fact, I do not think this precedent is well thought-out. Nor is it likely that all of the arguments against it have been made in a test case. For example, anyone could easily come up with a thought-experiment about a madman, say 100X worse than Bush or even Hitler-scale, pardoning vast numbers of total monsters, even for committing heinously anti-Constitutional acts. Is the Court condoning ANY extremum in Presidential pardoning? In which case, is not this power, in effect, given primacy over nearly ALL Constitutional checks and balances?

Suppose a president declared that he is PROSPECTIVELY pardoning anyone who violates a particular law he doesn't like. Perhaps the court would strike this down as, effectively, defying the very principle of law. It would be a tougher case if he simply pardoned anyone who HAD violated a particular law during his tenure as president without specifying individuals.

But then, the President doesn’t have to do that. He will have ample time to make a list of names (no doubt, one already exists, growing day-by-day), and fill them into pardon certificates, as part of a pre-planned skullduggery of crony-base quid pro quo.

So, is my suggestion utterly frivolous and futile? I think not.

First, the proposed bill does not actually forbid the President from issuing pardons! Rather, it is an attempt by Congress to DEFINE a PROCESS for presidential clemency. A process that leaves the end result completely unfettered. His cronies will still walk free. Still, it forces him - and the pardonees - to specify in detail what is being pardoned. Where’s the “fetter” in that?

In other words, if you are claiming a get-out-of-jail-free card, you must at least write down details, and answer questions, about what you’re pardoned for.

In any event, even if such a bill were dumped by the court, the utter and obvious fairness of such a demand - that pardoned people at least explain it all - would appear striking to the American people. If nothing else, it would serve to highlight the prospect, just ahead, of a pardon tsunami and prepare them to resent it, deeply, when it hits.

Under those conditions, it would be a black eye for the Administration even to take the matter to the court at all! The theater of this bill can only be overwhelmingly effective. As should several other gestures contained in a new and bold “New Democratic Deal for the American People.”

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14 comments:

Fhydra said...

Brin said:
"1) Dare the President to swear immediately that he will pardon no more than twice the total number of people pardoned by BOTH previous administrations, combined.

It's a great no-win situation to thrust upon him. First, it turns public attention to this vital issue, showing that we expect an absolute tsunami of pardons from this administration, especially after the 2008 elections. Second, it puts him in a terrible spot. He loses if he says yes OR if he says no!"

Your reasoning is exactly why I don't like the idea of this proposal. It seems sneaky (I can already hear Republicans saying: "Which is exactly what Democrats are!") Why not come right out and say we want checks and balances on pardoning powers?

It would be nice if we could get some sort of running tally for how many people are expecting to recieve pardons come 2008.

Rob Perkins said...

We should probably also think about how such a pardoning process could be abused by future demagogues, and whether or not it would serve the common good more by requiring them to testify.

Further, I think you're right that the Supremes, as they have with the President's war powers, would not at all constrain his pardoning power, especially if their decision were to trickle down into governors' pardoning power.

Think about that: A person who is convicted of a felony he knew he didn't commit is then granted clemency and a pardon by his governor. Do we require him to confess to his crime before a State Assembly commission, knowing that he'll only defy the commission by continuing to deny he committed the crime?

Do we deny the pardon because he continues to deny the commission of that crime?

Even further, our country's founders deliberately decided on a fettered executive, who can't just arrest and detain anyone without judicial review. (Yes, yes, the irony, I know... but stay on the topic here...)

Besides, the Congress won't do it! The minority wants their presidents just as unfettered as the majority. That ol' principle of reciprocity still applies. Do we really want an antimodernist Congress embarrassing a modernist President through that sort of review process? Do they get that power as well as the power to overspend our children's government into indenture to Asia?

Of course, our idealistic modernist President would simply welcome such a thing, but demagoguery and other fallacy can be made complex and slippery, and end up serving forces of pure evil.

Maybe a fair trade would be to let the President have a line item budget veto in exchange for pardon oversight, or something, but that's just a random toss-off.

Doug S. said...

"It would be a tougher case if he simply pardoned anyone who HAD violated a particular law during his tenure as president without specifying individuals."

Actually, I believe that presidents have made broad use of their pardon power in the past. I think Jefferson pardoned anyone arrested under the Alien and Sedition Acts, and after World War 1 ended, I believe that Wilson pardoned all the draft resisters that were still in jail. (I'm not sure on the details, but I think something like that happened. Please correct me if I'm mistaken.)

Personally, I doubt that there will be a storm of pardons in 2008.

Tony Fisk said...

fhydra, David said:
"Second, it puts him in a terrible spot. He loses if he says yes OR if he says no!"

It seems sneaky because David makes a partisan assumption that Bush couldn't meet the target. Remove that assumption from the wording of the proposal, use it as a yardstick against which to measure Clinton's performance, and you may find it more palatable.

Bush might even be able to do it!

Rob said:
"We should probably also think about how such a pardoning process could be abused by future demagogues, and whether or not it would serve the common good more by requiring them to testify."

While a little foresight is to be hoped for in drafting, I regard this item (and the rest of the 'contract') as a first step. As such, it shouldn't concentrate on second guessing what future tactics folks will try to weasel out. Let the counter tactics develop in tandem. Something about 'eternal vigilance being the price of freedom'.

Although making the punishment fit the crime provides a visceral sense of closure to victims and onlookers, 'Truth and reconciliation' is a pragmatic process aimed more at sorting out what needs to be fixed as opposed to who ought to be punished. I wouldn't be too fussed about what penitents say or admit to when the pressure's off so long as a clearer picture of what really went on emerges than would be the case with an adversarial trial. (It seemed to work in South Africa!)

Doug S said:
"Personally, I doubt that there will be a storm of pardons in 2008."

Pardons are needed only if you're found out. We will see.

Stefan Jones said...

I'm hoping the storm of pardons comes earlier.

March 2007 perhaps.

You know, when Bush is impeached.

* * *

Vital listening:

The latest installment of This American Life, "Habeas Schmaebeas." It's about the legal status of the Gitmo detainees.

http://www.thislife.org/pages/descriptions/06/310.html

palliard said...

@Doug:

Wow, are you an optimist.

This administration has openly mocked the rule of law more than any since Pres. Grant (or Lincoln, if you want to delve into the Habeas Corpus thing). And if there is one nice thing I can say about W, it's that he doesn't generally throw his cronies to the wolves, no matter how incompetent or eggregiously corrupt they are.

You can put money on that storm of pardons. Anything that's even been vaguely hinted at in the public press, I expect.

What you're unlikely to see is that impeachment that some folks seem to keen on. Nothing to be gained there, except Pres. Dick Cheney... I can't see how that would be worth pursuing, it would be like replacing the Emperor with Darth Vader. That energy would be better spent on coming up with an electable Democrat for the 2008 campaign, and a winning campaign strategy.

The problem with the Democrat party now is its leadership, nicely summed up in this Slate article:
http://www.slate.com/id/2137731/

wkwillis said...

Well, you could introduce a resolution requesting that the president specify what he is pardoning someone for. The prospective pardonees can still testify under oath that they are innocent if they wish. Or not.
Then we see if he signs it.
keep in mind that the president can't pardon you for acts contrary to state law or foreign law. Like, Iraqi law.
Oh, and one more thing. It was the Republican Harding who issued what pardons there were for the people that Wilson persecuted. Not Wilson. Wilson went to his death convinced that the ends justify the means. Harding was more like Clinton. Normalcy was what he wanted and what he got, and to hell with the Red Scare, till he suddenly died.

Carl said...

Don't get rid of pardons! They are a potential tool for a future pro-freedom president to pardon those who have been jailed by unconstitutional laws.

For example, all sorts of inanimate objects have been prosecuted using "civil asset forfeiture." This has allowed the federal government the ability to bypass the right to a trial in order to fine people. Well, if inanimate objects can commit a crime, then the same objects should be allowed a defense!

Either:
1. We need to go back to prosecuting the owners of said objects.

Or,
2. Carry out the legal fiction to its logical conclusion.

Rob Perkins said...

You don't impeach Bush unless you want Cheney to be the President. Think long and hard about that one.

Doris said...

Rob: Impeach Cheney first. Also, good point about the . The should be exonerated, not pardoned, but a pardon is faster.

Question: Which is worse -- smart evil or stupid evil?

Smart evil may be more efficient and effective at achieving the evil deeds. Curing it (short of resurrecting the dead) can be neat and clean.

Stupid evil has more unforeseen consequences. Our repair efforts will be as scattered and willy-nilly as the evil fallout.

Doris said...

Some words and letters dropped out of my first paragraph. Try again:

Rob: Impeach Cheney first. Also, good point about the . They should be exonerated, not pardoned, but a pardon is faster.

Doris Annoyed said...

Okay, why does the word "innocent" keep disappearing?

Michael "Sotek" Ralston said...

I like the "President must say what they're being pardoned for".

That's a limit on the pardon power that seems like it wouldn't constitute a "fetter"... and it'd sure make things interesting.

Rubbina said...

Some words and letters dropped out of my first paragraph. Try again:
Do we deny the pardon because he continues to deny the commission of that crime? It would be nice if we could get some sort of running tally for how many people are expecting to recieve pardons come 2008. check more on http://www.videosfilter.com copy title and watch