On December 3, President Obama exercised the constitutional power of pardon for the first time in his presidency. He could not have made a more politically and morally inconsequential use of this power. Sadly, it is another manifestation of the Obama administration’s inability to take a forthright stand on serious, contentious issues and then face down the hissy fits of Republican politicians and the braying of Fox News pundits.
Obama pardoned nine individuals. In the oldest case (1960), a man had been sentenced to two years probation for violation of a liquor law. In the most recent case (1998), a man was sentenced to five years probation and fined $71,000 for making false statements to the FDA. Three individuals were convicted of drug related offenses and imprisoned for 30 days, one year, and two years. A fourth was on probation for 3 years.
The most novel case was a man convicted in 1963 of mutilating coins. He was put on probation and fined $20. When he discovered in 2005 that he still had a criminal record, he applied for a pardon. He told the Washington Post that he had been a soldier making $68 a month and that GIs stretched their pay by trimming pennies down to the size of dimes to save money at the laundromat.
These pardons did not stimulate public discourse; they promoted no political or moral value beneficial to the republic. As for grants of clemency and commutations of prison sentences, which usually attract some degree of public attention, there were none.
If the objective was to skirt controversy and prevent further loss of Obama’s political capital, the administration was successful. They downplayed these pardons by announcing them on a Friday afternoon, a surefire way to minimize media coverage. The administration seemed to be operating on the principle the best defense is to give no offense.
One possible rationale for this caution may have been the specters of Willy Horton, Mark Rich, and Scooter Libby that have haunted executive pardons. Horton raped and murdered when he was freed on a furlough program instituted by the Massachusetts governor, Michael Dukakis. Republican operatives played the race card ruthlessly to sink Dukakis’s presidential campaign. Clinton pardoned Rich and his business partner in the final hours of his presidency thereby drenching himself and the Justice Department in the stench of pardoning rich financiers who had fled prosecution to live an opulent life in Switzerland. It had to be supremely disconcerting for Eric Holder, a man of measured thoughts and words, to confess to impulsive decisions and lapses in judgment during his confirmation hearing in 2008.
As for Scooter Libby, the issue lives on in the memoirs of Bush junior and the snarls of Dick Cheney. Bush’s commutation rescued Libby from serving a thirty month sentence. However, Bush did not go all the way; he left penalties in place that disqualified Libby from the practice of law. Now he has to settle for being a rich Republican lobbyist rather than a rich Republican lawyer. To this day it galls Cheney that he could not rescue his compatriot in war and disorder.
So Obama played it safe by granting pardons notable principally for their banality. That is not to say that these individuals were undeserving or that there is something indecent about pardoning ordinary citizens who have lived exemplary lives since their encounters with the criminal justice system. Yet this squanders a unique opportunity to address important moral and political issues.
The prevailing public understanding of pardon and clemency is that these are acts of forgiveness and, rarely, rectifications of past injustice. A pardon is a special, rare benefit which the president bestows on deserving individuals. Rich and Libby’s pardons were offensive because they were undeserved. However, even these foul pardons had their silver lining. They forced the public to consider who these men were, why they had access to high government officials, and, more generally, how the “justice system” operates.
This contemporary view of pardon as the president’s merciful gift to deserving individuals is at odds with how the constitutionalists of 1787 understood this power. Considering their wariness of the concentration of power in government, it is noteworthy that the Constitution places the power to pardon entirely in the hands of the president who does not require the agreement of the legislature or the judiciary. Neither branch can rescind a presidential pardon.
The constitutionalists conceived of pardon as a useful instrument of governance when exigencies arise requiring prompt and decisive action. When necessary, the president could bypass the wrangling and delay inherent in the deliberations of Congress. In the first use of the power, Washington deflated an anti-tax insurrection, the Whiskey Rebellion in 1791, by issuing pardons which removed the threat of prosecution. He granted pardons not because they were deserved but because they served to restore domestic tranquility. They were political in intent and in result.
If Obama had, like Washington, chosen to act boldly, he would have used his constitutional power to address serious issues facing society with the moral force of determined presidential leadership, the kind of leadership, for instance, that is needed to update and reinvigorate the American public’s recognition of racial injustice.
One example of how Obama has forgone use of the pardon power as a political instrument pertains to the enforcement of drug laws. For years there has been wide spread recognition of the injustice of drugs laws that impose much longer prison sentences for offenses involving crack cocaine than for powder cocaine and of laws that mandate severe minimum sentences. The crack/powder disparity has sent large numbers of people to prison for horrifyingly long imprisonments.
Since crack is a drug for poor people, the heaviest punishments fall disproportionately on people of color. Obama has criticized the drug laws, noting that “If you’re convicted of a crime involving drugs, of course you should be punished. But let’s not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the color of the skin of the people using them”.
While Obama and Congress followed through with the Fair Sentencing Act of 2010, the new law gave no relief to individuals sentenced under the old laws. Among the more than 5000 clemency applications awaiting review, there are more than a few people who have already been imprisoned many more years than the new law calls for, who still face many more years in jail, whose conduct has been exemplary, and whose release will endanger no one.
Obama might have used his power to commute the sentence of Hamedah Hassan, a middle aged woman who was convicted of a non-violent crack conspiracy charge in 1993. She was not a drug user; this was her first criminal offense; she was only peripherally connected to drug related activities of people in her extended family. She has served 17 of a 27 year sentence. If the cocaine had been in powder form, she would already have been released. She has maintained close connections with her now adult daughters and her granddaughter and has completed a paralegal training course. Her clemency application has broad support in her community. The federal judge who originally sentenced her publicly supports her clemency application.
If Obama had pardoned Hamedah Hasan and a few other individuals with similarly compelling cases, the announcement of clemency could have been trumpeted rather than dribbled out on a Friday afternoon. Obama could have occupied the political space that he has yet to fully own: the bully pulpit of the presidency. He could have directed, however briefly, the attention of the media and the populace away from the tawdry politics of deficits, taxation and partisan bickering to the racial injustice and the unfairness in the legal system that plague American democracy. He would have signaled to agencies like the U.S. Sentencing Commission and federal parole boards, his support for their treating people kindly and fairly. He could have pressed the case for revision of discriminatory state drug laws. With pardons like these, Obama would be acting like the president that we hoped we were getting.
Would such commutations stir up political commotion? One would hope so. Right wing extremists would probably attach a “Soft on Crime” tag to their “Soft on Socialism” anti-Obama effigies. GOP troglodytes who came up politically playing the race/crime card would leap to distort and smear. Serious issues would be joined. Obama would have spoken to the American people’s sense of fairness and displayed his commitment to fight racism.
Indeed, all of this would have been as simple as Politics 101 compared to the impossible but noble case of clemency for the Boy in the Metal Box.
From the start, Obama has been disappointing in addressing conflicts between constitutional government and the rule of law versus the operations of the military and intelligence organizations. In its pronouncements, the Obama administration takes the middle path: both civil liberties and counter-terrorist security imperatives must be considered. In the abstract, this is coherent and defensible. But in practice, the administration places the prerogatives of the security organizations ahead of civil liberties. It decided against releasing documentation, photographs, and information about rendition, secret CIA prisons, and torture by U.S. government personnel. It failed to investigate up the military and intelligence chains of command to identify the officials who condoned or promoted interrogation methods on the “dark side” It sidestepped prosecuting CIA officers who defied a court order to preserve videotapes of prisoners’ torture. The Justice Department has repeatedly invoked the “state secrets exception” to exclude evidence from trials that would reveal official malfeasance.
Obama has yet to make an assertion of executive power which clearly and convincingly demonstrates his readiness to protect constitutional government from the predations of the national security organizations. Yet sitting in the pile of clemency applications on his desk is the opportunity to do exactly this.
Clemency for John Walker Lindh would open up to public scrutiny an outrageous injustice that high officials in the Bush administration deliberately perpetrated on an American citizen after the 9/11 attacks. It would expose how they covered up their illegalities by betraying the legal professionalism of the Justice Department and by imprisoning their victim behind prison walls for half his life. Commuting his sentence would not only rectify a little noticed and long forgotten injustice, it would also ignite a firestorm of political debate about constitutional rights, liberties and the “war on terror”. Indeed, John McCain and hawkish Republican politicians would go ballistic. But the American people would have to pay attention to what has been done in the name of national security.
John Walker Lindh is now in the ninth year of imprisonment in a federal penitentiary in Terra Haute, Indiana. After his capture in Afghanistan in November 2001, Lindh was introduced to the American people with a nametag John Ashcroft glued to him: “American Taliban”. He was displayed in a photograph as a filthy, bedraggled man looking dazed and half dead after surviving weeks of horrific violence and deprivation. Tied up in a metal box for several days, Lindh was exposed to frigid weather, denied medical treatment for gun shot wounds and intestinal disease, forced to urinate on himself, and threatened with execution.
Lindh was locked away and forgotten, but he is a critical figure in the degradation of the rule of law after 9/11. As the very first detainee in Bush’s wars, he was a sign, little understood at the time, of what was to come, and a pristine example of how constitutional rights fare in the hands of cynical political leadership amidst societal hysteria and paranoia.
Lindh was a late adolescent religious wanderer from California who literally arrived in the wrong place at the wrong time. After several years of study in the Moslem world, he enrolled in a Pakistani madrasah where he was recruited to join a multi-national group of Islamic jihadis defending the Taliban regime against a coalition of Northern Front warlords. He arrived in the north on September 6, 2011. Despite the image of Lindh as a fanatic jihadist, he had no connection with al Queda; America was not yet at war with the Taliban; he never fired a shot at an American soldier.
Shocked by the 9/11 an attack, Lindh was stranded in the mountains unable to defect safely from the Taliban or to surrender to an Afghan warlord renowned for brutally murdering his prisoners. He was captured in early December and handed over to the U.S. military. He was transported back to Virginia where he was arraigned on a ten count indictment in a Virginia federal court in February, 2002 and faced a sentence of more than 40 years.
The government interrogated Lindh without legal representation during the 8 weeks from capture to arraignment. His request for a lawyer was ignored; lawyers retained by his parents were prevented from meeting him. These blatant violations of his fifth and sixth amendment rights served a specific purpose. In 2001, Lindh was a unique intelligence asset because the U.S. military knew next to nothing about the Taliban. Lindh was milked for what he knew. The interrogations also produced a self-incriminating record which would give Ashcroft, Cheney, and Rove the conviction they had publicly demanded.
The administration’s coverup began even before Lindh returned to the United States. A Justice Department lawyer in the Professional Responsibility Advisory Office warned that the interrogation violated professional norms and departmental procedures, that it would produce inadmissible evidence that could jeopardize the prosecution, and that it might result in criminal charges against Justice Department personnel. Ashcroft dismissed the message and the messenger, Jesselyn Radack, who, Ted Kennedy observed, “was effectively fired for providing legal advice that the department didn’t agree with.” Lindh’s interrogation continued without lawyers. Congressional investigation of Radack’s dismissal was thwarted by the disappearance of departmental e-mail records.
But the cover up did not end there. Lindh’s trial was looming. His lawyers moved to exclude transcripts of the illegal interrogations. The government knew that the defense would produce evidence about Lindh’s treatment, the denial of legal counsel, and coerced self-incrimination. On a Friday, three days before the exclusionary hearing, the government suddenly offered a one-time non-negotiable deal.
Lindh could plead to one count of violating an executive order prohibiting material support to an organization banned by the State Department; he would serve twenty years in prison and forego the right to appeal. Lindh had three days to decide that in the prevailing climate of hysteria and paranoia, a trial would pose a serious risk of a forty year term. So he accepted a deal that would silence him.
At the sentencing, he expressed regret for his decision to join the Taliban and condemned al Queda’s attack on innocent people. Furthermore, the judge made clear that Lindh had no role in the death of a CIA agent at the time of his capture. This was the only occasion on which Lindh has spoken publicly. Then the Bureau of Prisons designated him a threat to national security which allowed him to communicate only with his parents and lawyers, who in turn were prohibited from speaking with journalists about their meetings with him. The coverup worked. The government silenced Lindh and buried their misconduct.
Whether Lindh’s twenty year sentence is reasonable or excessive is arguable but irrelevant. More significantly, his sentence was the fruit of the deliberate violation of his constitutional rights. Had he been advised by his lawyers before the interrogation, he almost certainly would have received a much shorter prison term. His lawyers could have negotiated a more favorable plea bargain with much less prison time because Lindh had information the government wanted very badly and he had absolutely no reason to withhold cooperation. This is what Ashcroft et al wanted to prevent. They would have lost their chance to demonstrate their “toughness” by locking the American Taliban away for two decades.
Lindh has to serve eleven more years unless Obama intervenes. Although commutations are rare even in obvious cases of serious injustice, Lindh’s case is exceptional. Unlike other wrongly convicted prisoners, Lindh’s core constitutional rights were squashed to promote war. Political advantage, not security, was the priority, as it often is when aggressors invoke claims of safety to curtail civil liberties.
Clemency for Lindh would be a bold, controversial act, which may not be in Obama’s chemistry. Still, it would be a dramatic use of the pardon to put the Constitutional government and the rule of law at the center of public debate and to confront prevailing political winds which threaten individual rights and liberties. No one is better suited intellectually for this battle than the professor of constitutional law from Chicago. The question is whether he can muster the passion to do battle in defense of the values presently at stake.
MICHAEL TEITELMAN lives in New York. He can be reached at: mt258@columbia.edu
