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Yes We Can Unpardon War Criminals

Dear President Elect Obama,

On his third day in office President Grant revoked two pardons that had been granted by President Andrew Johnson. President Nixon also undid a pardon that had been granted by President Lyndon Johnson. There may be other examples of this, as these two have somewhat accidentally come up in a discussion focused on numerous examples of presidents undoing pardons that they had themselves granted, something the current president did last week. (See ). In 2001, President George W. Bush's lawyers advised him that he could undo a pardon that President Clinton had granted.

Much of the discussion of this history of revoking pardons deals with the question of whether a pardon can still be revoked after actually reaching the hands of the pardonee, or after various other obscure lines are crossed in the process of issuing and enforcing of the pardon. If President Bush issues blanket pardons to dozens of criminals in his administration for crimes that he himself authorized, he will probably -- with the exception of Libby -- not even name them, much less initiate any processes through which they are each formally notified of the pardons. He will be pardoning people of crimes they have not yet been charged with, so the question of timing is something you are unlikely to have to worry about (except perhaps with Libby).

Virtually none of the discussion of these matters ever addresses the appropriateness or legitimacy of the pardons involved or of the revoking of them. The history would appear to establish that you will have the power to revoke Bush's pardons. I want to stress that you will also have a moral responsibility to do so and a legal requirement to do so. Morally and legally, you have no choice in this matter. When you take the oath of office, you will be promising to faithfully execute the laws of the land. Through Article VI of our Constitution, the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are the supreme laws of this land. Those laws bind you to prosecute violations, including torture and other war crimes of which Bush, Cheney, and their subordinates are guilty and which Bush is likely to try to pardon.

Bush's pardons will not be like other past pardons. Even when his father pardoned the Iran-Contra criminals, he was pardoning crimes for which President Reagan, not he himself, held ultimate responsibility. Here we are facing the unprecedented outrage of a president pardoning crimes that he openly admits having authorized. The closest thing to this in U.S. history thus far has been Bush's commutation of Scooter Libby's sentence, to which he is expected to add a pardon. Libby was convicted of obstruction of justice in an investigation that was headed to the president. Evidence introduced in the trial, including a hand-written note by the vice president, implicated Bush, and former Press Secretary Scott McClellan has since testified that Bush authorized the exposure of an undercover agent, that being the crime that was under investigation.

The idea that the pardon power constitutionally includes such pardons ignores a thousand year tradition in which no man can sit in judgment of himself, and the fact that James Madison and George Mason argued that the reason we needed the impeachment power was that a president might some day try to pardon someone for a crime that he himself was involved in. If impeachment was created to handle the abuse of pardoning a crime the president was himself involved with, how can we imagine that the pardon power legitimizes such abuse, much less the pardoning of crimes authorized by the president, much less the pardoning of obstruction of an investigation into a crime committed by the president? In fact, all such pardons are themselves obstruction of justice, as well as violations of treaties requiring the president to prosecute the types of crimes involved.

The problem is not preemptive pardons of people not yet tried and convicted. The problem is not blanket pardons of unnamed masses of people. Both of those types of pardons have been issued in the past and have their appropriate place. The problem is the complete elimination of any semblance of the rule of law if Bush pardons his subordinates for crimes he instructed or authorized them to commit. We elected you to restore the rule of law, and you will soon have the opportunity to either do so or to place a final nail in its coffin. Bush is likely to attempt to pardon torture, warrantless spying, all sorts of war crimes, fraud and aggressive war, and the various abuses of the politicized Justice Department.

We will call on the courts to challenge these pardons and on Congress to reject them. We will demand that Congress reject any nominee for attorney general who accepts such pardons as legitimate. But we are also asking you for leadership. We've elected you for it. We strongly encourage you to uphold your oath of office and faithfully execute the laws, not the illegal decrees of your criminal predecessor. If you do this for us, if you help ensure that government of, by, and for the people does not indeed perish from the earth, we will commit to working with you in the years ahead as you advance the eternal project of improving our democracy.

In Solidarity,
David Swanson

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Good show! We have to remind these people that there's laws for a reason. Thanks.

that i am not arguing for the power to unpardon normal pardons, just pointing out its existence

but i am insisting on the power to undo blatantly illegal pardons

Great letter if they care to read it!


Thank you, David!

Mark Venzke

on an exceptionally well-thought-out and well-written piece.

As much as we all know that this is precisely what is absolutely necessary in order to salvage whatever fragments remain of this shattered nation, the fact is, we all know damn well that it's not going to happen. Both parties are nothing more than puppets for the central bankers, and have been for at least a generation.

At the end of the day, no matter how much evidence it brought forth that demands criminal proceedings, nothing will be done but more hand wringing. "Oh, shucky darn...that darn ol' Georgie...he broke more laws that we know how to count, he's murdered over a million innocent human beings, he's destroyed our nation, but gosh-darnit, kids will be kids, so let's just let this go."

The sad fact is, I'm afraid, we're LONG overdue for a wide scale revolt...a new revolution. If we EVER hope to reign in this monstrously overbearing and horrendously out of control government, it's time for "we, the people" to become "we, the people," and cast aside this entire criminal organization, from top to bottom.

Hi David -

Do you have a cite/link to source for this? I can find nothing about it on or anywhere else.


on that page, that I can find...

In a 1975 article for Case and Commentary, distinguished attorney Melvin H. Belli referred to an instance in 1969 when the President "managed to head off a pardon granted by the previous President." According to Belli, a telegram was sent to "waylay" the pardon "just before it was delivered into the hands of the intended receivers."


great if you could learn more and let us know

in a CRS Report For Congress from December 12, 2006.

An Overview of the Presidential Pardoning Power (.PDF)

Footnote #26 says:

Id. at 161. It also appears that a pardon may be revoked at any time prior to acceptance. In In re De Puy, 7 F.Cas. 506 (S.D.N.Y. 1869), the District Court for the Southern District of New York addressed a situation where a pardon issued by President Johnson on March 3, 1869 was revoked on March 6th, 1869 by incoming President Grant. Id. at 509. The court held that the pardon had been properly withdrawn, as it had not yet been delivered to the grantee, a person on his behalf, or to the official with exclusive custody and control over him. Id. at 512-513.

that helps

Wish I had more...

John J.Coghlan

It is good that the president can revoke a pardon. The question is, will he do it? He has been indicating that he is going to take that familiar move on, and look ahead approach. The problems of the last eight years have not been just with the president, but with our entire government. The Congress has refused to impeach the most criminal president in our nations history. They have approved continued funding of his illegal wars. They have put their stamp of approval on almost everything Bush has done, including the torture of prisoners. Obama has already approved a bill that would not allow criminal prosecution, or civil actions to be taken against communication companies who have been illegally spying on us. If Bush does issue pardons, why would anybody think that Obama would revoke them? The pardons would take many of Obama's friends off the hook. If there were investigations of torture, the speaker of the house could be indited for war crimes. In the past people have been executed for the very same interrogation procedures that this women approved of, or allowed to happen with her silence. Will Obama take the best actions and hold criminals accountable, or will he do what he can to cover up the crimes of his friends and colleagues in Congress?

I think the Bush Administration planed from the start to get the very people who could take actions against them involved in their crimes, so that they wouldn't be able to take actions against them. The rambles of Dick Cheney seem to indicate this. In recent weeks he has been saying, this person was well informed, and that committee gave us its approval. We kept them all well informed and they went along with the plan. It sounds to me that they were all hoodwinked into becoming accomplices, and they are now afraid to take any actions against the Bush Mob.

I'm tired of Limousine Liberals such as Nancy Pelosi claiming they're for the little people, yet bow to the Neocon agenda, rather than representing the people (it's the House of Representatives for crissakes!). I'm an American first, then a Democrat. If they're guilty, I say to the Docks with them, too. You try arguing that point to core loyalists, they think your a troll. As a matter of fact, ANY criticism, of the DLC, is judged as traitorous and above my pay grade. I still think we should be pressuring Obama in joining the ICC. That'd take the "politics" out of the equation and if Nancy, Tom, Jay and Jane find their meat on the barbi, well, tough shit. Democrats aren't angels. They were assholes in the 50's and early 60's. It used to be the two party's would take turns, now they're BOTH sell out bums. If Barack want's to truly reach out across the aisle, I want him to reach out and slap the hell out of them both. And yeah, I'm a Democrat, but I'm an American FIRST.

"I think the Bush Administration planed from the start to get the very people who could take actions against them involved in their crimes, so that they wouldn't be able to take actions against them."

That's the problem now and that explains why nothing ever happens when the White House changes form one party to the other. If there was a crime, unless it involved bypassing Congress or the judiciary, it was a ...conspiracy... It involved all branches of government. When is the last time conspirators allowed charges against their conspiracy? It doesn't happen.

In this particular case, the Obama, the un-pardoner, would be initiating a process that would, if pursued to the logical end, include that very un-pardoner. How is that?

Didn't Obama and nearly all members of Congress vote funding for the war? That's the ticket. If you provide money for an act that you were expected to know was illegal, then what does that make you? Ah hmmm... They knew before the initial vote, they knew throughout all the votes. Their excuses are neologisms. They can't be even close to the kitchen because the heat will consume them.

Having said that, David, this is brilliant. Great research. Now there's no excuse except, "We've got to move on."

Amplifications. First, You can't pardon for crimes that have not been committed. I'm sure there's some judge somewhere bolstered by some academic who would support this. It simply defies any cognitive process though. The delivery of a pardon for something that doesn't exist it cannot be a pardon for anything.

Second, since these are illegal, the pardons should be used by Justice as evidence that a crime was committed. The very fact Bush would issue them a blanket pardon means that they're guilty of something. "Thanks for the lead."

Finally, if Bush issues a blanket pardon, then he must know that a crime took place. By issuing the blanket pardon, without specifying a crime (which he knows about), Bush is admitting that he's withholding information on that crime. Doesn't that place him in a conspiracy with the pardoned criminal and all who participated in the pardon and know the crime? How do you pardon an illegal pardon and if the pardon involves withholding information and is, in fact a conspiracy, it's mandatory that it be withdrawn. The simple act of blanket pardons is about 90% of what you'd need to show that Bush and those involved are guilty of deliberately withholding information.

5 million orphans...did it take a village?

None of this is going to happen. We as a nation must accept that for at least the last 8 years the majority of our elected? representatives do not believe in the constitution. This country in post-constitution times will be whatever it is forced to be, and the finantual forces that got us here are still just as strong as ever. Peacefull reform may still be possible, but the time is short. I pray the 90% of us left out of the any consideration in post-constitution U.S. find the strength and a way to advance justice, equality under the law, and a more fair distrubtion of the wealth created by our labor. Based on the trajectory of the last 30 years, the odds don`t look good.

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