As we discussed Wednesday, there has been substantial activity by the Bush administration over the last several weeks to implant ("burrow") various Bush partisans into crucial agencies and to institute policies that, as everyone knows, will be opposed by the Obama administration. Whether or not the level of this activity is higher than what prior outgoing administrations have done, it seems clear that the intent is to close off policy avenues for Barack Obama and even sabotage the next president's ability to govern by ensuring that high-level, powerful agency officials will be ideologically and politically loyal to the outgoing president rather than the new one.
Those tactics seem, in general, to be gratuitously disruptive. But one could compellingly argue that they are particularly inappropriate when coming from a deeply unpopular president whose policies have been resoundingly rejected by the electorate. Whatever one might want to say about the specifics (or lack thereof) of Obama's campaign platform, the mantle of "change" was certainly at the center. Obama's fairly resounding victory strongly suggests that the country wants serious departures from the current approach to governing. Indeed, it is difficult to interpret the election results -- to say nothing of Bush's historically low approval ratings -- any other way.
In light of that, what conceivable justification is there for an outgoing president to prevent the incoming president from implementing the policy changes that American voters clearly desire? A strong argument could be made that the primary obligation of the outgoing president is to assure a smooth transition and facilitate the new president's ability to govern -- not sabotage that ability with last-minute, frantic appointments and new regulations. As you pointed out Wednesday, Jim, Bush has, to his credit, cooperated in some areas -- by allowing the Obama administration control over the Troubled Asset Relief Program money and the specifics of the auto bailout -- but in other key areas he has done the opposite.
None of this means that a post-election president must sit passively and do nothing while he waits to move out of the Oval Office. As we alluded to Wednesday, this is the period when pardons are often issued for obvious reasons. Pardons, by their nature, tend to be controversial (Americans are never thrilled about granting convicted criminals special relief), and an outgoing president, during this time, is more inured to political controversy than at any other time. Now is the time to issue legitimate (even if politically unpopular) pardons. In my view, that means commuting prison sentences that are among the harshest in the world for petty offenses, such as drug possession and drug dealing, and relieving those who are unjustly suffering from draconian sentencing schemes such as three-strikes-and-you're-out and mandatory minimum sentencing laws.
We both agree that pardoning high-level political officials such as I. Lewis "Scooter" Libby would be inappropriate or, at least, unwise. What about midlevel and even higher-ranking Bush officials who authorized or participated in the most controversial surveillance and interrogation programs? On Wednesday, Bush's own senior Pentagon official in charge of prosecuting the Guantanamo Bay detainees said explicitly that "torture" -- her word -- was used there, and she meant techniques other than waterboarding.
Today, Obama's choice for attorney general, Eric H. Holder Jr., said at his confirmation hearing that waterboarding (a technique both Bush and Vice President Dick Cheney admit they authorized) is "torture" -- that was the word he used -- and that the president has no authority to eavesdrop on Americans' communications without the warrants required by federal law. Those seem to be very substantial bases for proceeding at least with criminal investigations, if not prosecutions, of numerous Bush officials. Certainly pardons on that scale would generate a huge political backlash -- it would amount to a declaration of immunity for people who actually tortured -- but they might be the only means for assuring Bush officials that they are safe from prosecution.
Glenn Greenwald is a former constitutional lawyer, contributing writer at Salon.com and author of two books on the Bush administration.
Given the overwhelmingly Democratic tilt of the career bureaucracy in most civilian portions of the federal government, I must say I'm not terribly concerned that Bush's "burrowing" is going to derail any Obama administration initiatives. Elliot Abrams is not going to be making Obama's foreign policy, and Atty. Gen. Michael B. Mukasey is not going to be overruling Holder (assuming he's confirmed) at the Department of Justice. I won't defend the practice, but burrowing is common, bipartisan and in this case likely to be more of an impediment to the Obama administration than the pranks of political appointees removing keys from White House keyboards or similar hi-jinks.
The most serious examples of burrowing were the ones to which Obama consented. He has chosen as his vice president and secretary of State Democratic senators who voted for the Iraq war when it was popular but were slow to turn against it when it became unpopular. His Treasury secretary-designate is difficult to distinguish from Henry M. Paulson Jr., and he is retaining Robert M. Gates as secretary of Defense. I don't have a problem with the Gates retention, but if the bloom is off the "change" rose, I think these staffing choices have more to do with that than any sinecures the outgoing president secured for Bush administration alumni.
As a libertarian-leaning conservative, I'm no fan of the war on drugs, the federalization of criminal laws constitutionally left to the states or the escalation of mandatory minimum sentences (though I do support the use of mandatory minimums in some limited cases). I'd be happy if Bush had a last-minute epiphany on any of these questions and pardoned people who were particularly unjustly treated by these federal crusades. I'm afraid I don't think that's the way to bet, however, and would actually prefer wiser policy choices by our elected officials to a few one-off pardons.
We need a president and a Congress who will chop down the jungle of bad laws in which Americans are tangled, laws that range from ill-conceived and ineffective to pernicious and unconstitutional. Given our depressing choices in the last presidential election, I don't anticipate that happening any time soon either.
Similarly, while I oppose torture and the curtailment of civil liberties, I am reluctant to endorse the criminalization of policy differences. If people clearly tortured and committed illegal acts, they should be punished, not pardoned. But if people were acting in more ambiguous situations, perhaps under the guidance or instruction of plausible -- even if ultimately erroneous -- legal interpretations by the Bush administration, I would be hesitant to have them prosecuted.
The same is true of practices where there are differences of opinion about whether the conduct in question legally constitutes torture, including waterboarding. I'd very much prefer that be a matter for the Obama administration's prosecutorial discretion rather than the Bush administration's use of the pardon power, but I'd have to see the specifics.
I'm pleased to hear that Holder is saying civil libertarian things at his confirmation hearings. He has not always said such things in media interviews when he was out of public office. Holder says that the president does not have the authority to authorize waterboarding under the terms of the Geneva Convention, but he is also on record as saying that terror detainees are unlawful combatants who may not be entitled to Geneva Convention protections. We also have seen reports that the Clinton administration, in which Holder served, performed extraordinary rendition.
So we'll have to see what happens. Forgive me for lacking the audacity of hope, but my guess is this administration is as likely to please serious liberals on foreign policy and civil liberties as a McCain administration was to please serious conservatives on reversing Roe vs. Wade or shrinking the size of the federal government -- which is to say, not very likely.
W. James Antle III is associate editor of the American Spectator.