free the detainees who there's no reason to be imprisoning
Whom, you monster, whom!
Otherwise I agree 100%.
I am scandalized that the power of pardon is so seldom used, and especially so seldom used before the end of a president's time in office is near. If it were just the prisoners in Guantánamo, I would be a little bit worried for symbolic reasons, but they just aren't that many people. But in fact, they're far from the only ones who are likely imprisoned either based on spurious evidence, or for victimless crimes. Or for things that were in fact crimes, but don't justify the institutionalized torture that some of our prisons amount to.
It's something the president has the power to do with absolutely no checks on eir authority. So why not do it? The day you assume the office, or even before, organize a commission to identify people who are imprisoned and shouldn't be, and pardon them by the end of your first month.
Unless I'm badly miss estimating how many of our prisoners don't deserve or need to be there, it seems like every president (and every governor with the pardon power) who has the power to do this but does not, is morally culpable for the unjust imprisonment of hundreds of thousands.
And that doesn't even include the use of the pardon power to clear someone's record after they've served their time.
Apparently, Apple's text to speech utility can put the accent into "Guantánamo" but doesn't understand that "misestimating" is one word.
3
It's something the president has the power to do with absolutely no checks on eir authority. ...
You realize the President can only pardon people convicted of federal crimes?
1
... who has the power to do this but does not, is morally culpable for the unjust imprisonment of hundreds of thousands.
There aren't hundreds of thousands of clearly innocent people in our prisons.
1
... So why not do it? The day you assume the office, or even before, organize a commission to identify people who are imprisoned and shouldn't be, and pardon them by the end of your first month.
Because you don't want to spend the rest of your term in office with everyone mad at you.
3: OK, so the president and governors are jointly culpable.
4: There's a lot of space between completely innocent of charges and ought to be in prison for as long as sentenced.
One thing that encouraged me a tiny bit was hearing Candy Crowley on CNN last night talking about why some of the GTMO prisoners can't be tried and she used the word 'torture.'
7: Yes, that is very reassuring.
I think what JBS is getting at in 3 is that the detainees in Guantanamo, at least the ones he'd be freeing, haven't been convicted of anything, let alone a federal crime. The pardon power, per se, just doesn't apply.
9: Nixon didn't get convicted of anything either, but Ford pardoned him.
It'll take a while, but eventually 'can't be tried' will be replaced with 'aren't suspected of having committed any crime.'
I mean, it's not like the torture has prevented prosecution of KSM, bin Attash, Nashiri, etc. (What's messing with their ongoing prosecutions is the pathetic and misguided perception that because military justice is more manly, we must do that, rather than use our ordinary court system, because unless we are everywhere and always as manly as we can be, the terrorists will have won.)
I really appreciate what Carp and others are doing. I'll confess to just feeling depressed about it to such a degree that I dislike even thinking about it or reading about it.
9: Yes, but there are only about 10^2 people in Guantanamo Bay, and about 10^5 federal prisoners.
9: Nixon didn't get convicted of anything either, but Ford pardoned him.
Yes, pre-emptively. But let's say Obama pre-emptively pardoned the Guantanamo detainees. They'd still be stuck forever in Guanatamo without trial. They're never going to be tried for a federal crime, so a pardon doesn't do anything. They (the ones we're not actually going to try) need to be released, not pardoned.
14: Okay, but, as Commander-in-Chief, can't Obama just let them out? How does that work, Lawyer Carp?
To be clear, I do hold Obama morally culpable for their unjust imprisonment. But not for not pardoning them.
1 was intended as a related rant, not a direct response. (Except the "whom" thing.) Of course the president's power to unilaterally release a prisoner gets a different name if they've actually been convicted of a crime, but the moral problem is the same, and probably a lot more people need pardoned than need released from Guantanamo.
Which is not to say that the president shouldn't also do the right thing about the Guantanamo prisoners.
I confess that 12 is pretty much right where I am, too.
There just aren't that many people who are clearly innocent in federal prisons, and federal sentencing is done under the federal sentencing guidelines, which are binding law, not the result of individual acts of horrible judicial capriciousness.* So, if you systematically used the pardon power to reduce the sentences of people whom you felt were unfairly doing an over-long sentence, you'd basically be committing a massive act of civil disobedience, which is a lot to ask of any President. That said, there are certainly cases where a pardon has issued for someone who was clearly correctly convicted but the sentence was excessive; I know one such person who was so pardoned by George W, but only on his last day of office and after a long campaign.
Also the sentencing issue isn't really relevant to Guantanamo, where the issue is about people not receiving proper judicial process at all, not people who got correct judicial process but were still unjustly sentenced. I do have a strong general sense that Guantanamo is a tiny problem compared with massive other and much more important problems in the federal administration I justice, notably immigration detention, and so I appreciate the move to broaden the conversation.
*I dislike the sentencing guidelines -- it would just take a bizarrely strong and maybe illegal action of the President to say "yeah sentencing guidelines not so much people serve as long as I think they should."
20: Is "clearly innocent" the standard we're using now?
Given all the ridiculous ways in which executive power has been expanded recently, I don't see why there should be any problem using the presidency as a fully general check on congress's power to lock people up.
Yeah, I think he can just let them go. There are some restrictions on using DOD funds to do so, and maybe they are constitutional, maybe they aren't. But I think if he wanted to do it, he could.
They have to do something with KSM etc, but the restrictions end on Oct 1 anyway, so it's not like he's got any business acting like Congress has forced him into perpetual injustice.
I would like to see a lot more use of the pardon power.
Well, it's Congress' power (in terms of the guidelines) and the executive's decision to prosecute people and ask to have them locked up. So you'd not only be deliberately flouting Congressional will but would also be acting against your own executive branch decisions, decisions made mostly by the same people who still work for you. So it's a very tough to impossible sell, assuming that you're talking about something like "reduce the sentence of everyone who has been convicted of crack cocaine by five years." There are so many much more obvious and actually fixable problems that this idea is pretty much in "let's abolish the states" fantasyland.
And, sure, there could be more use of the pardon power than there is now without running into systematic issues described above. You would also have to put up with many more Marc Rich or Marc Rich equivalents, though.
12: Yes, this. I had to grit my teeth to make myself read the stupid, loathsome speech and link it. I mean, it's motion in the right direction, but I hate the entire topic so much that it's an effort not to stick my fingers in my ears and pretend it's not still happening.
26: I wonder if people would have been less upset about the Marc Rich thing if he'd stuck with "Marcell Reich."
Is "clearly innocent" the standard we're using now?
For release from Gitmo, yes, though it's not a sufficient condition.
29 -- Actually no, that's too objective. Release from GTMO has historically been primarily about the prisoner's passport. Standards for Saudis were always much lower than for Yemenis. Europeans lower still (ie, none, no matter what the accusations, was deemed worthy of detention beyond the early interrogation period).
Historians of the future will wonder about Abdullah al-Ajmi, but eventually someone will dig deeply enough to see why the military wanted him out of their jail.
29: Shearer and Halford were talking about federal prisoners. It seems to me like if the worst you can say about federal prisoners' established guilt is that very few of them are clearly innocent, then maybe a lot of them shouldn't be in prison!
25: The president doesn't have the power to unilaterally abolish the states.
And presidents have in fact tried to use executive powers to unilaterally reduce the scope of government authority. Nixon tried to unilaterally cut the budget, but that was ruled unconstitutional. So it's clearly untrue that no one would ever do this kind of thing - someone actually tried to!
And a fortiori this is feasible, since it should be a little harder to show that it's unconstitutional for the president to use an enumerated power.
There's also the option of pardoning criminals after they've served their time. That alone would do a lot to make the justice system much less perverse.
Ok, you keep working on your awesome pardon everyone plan. I don't know why I even engaged you.
32: I know that a pardon-everyone plan is in fact unlikely and probably unworkable. But there's lots of possibilities in between here and there.
Of course the big challenge is getting a president who takes seriously the idea that maybe locking people up is bad and should be done sparingly - and that this is actually important and urgent, and 200,000 people is a lot of people.
If we had a president like that, even without the pardon power a lot could get done - but even more could get done with it.
The reaction in 27 kind of pisses me off. The speech seemed like about as thoughtful a move as one could reasonably expect, and I get pissed off at the idea that these aren't real issues that require some actual thought, not just a binary choice between total war and arbitrary power forever because scary Muslims vs Glenn Greenwald level fake hysteria "any use of executive power to fight terrorism is tyranny." If you're thinking about how one might actually move forward on these issues, the speech, while not revealing enough technical detail to be sufficiently specific, does seem like a pretty important move in the right direction.
I'd have called the speech much less loathsome if it had been made in 2009 and followed up in a matter I found satisfactory.
And you know, some of these issues really don't take much actual thought. For those detainees where we really don't have evidence that they ever did anything, it doesn't take deep thought to figure out that the only decent thing to do is to release them ASAP, where the timeframe should have been measured in weeks at the most.
I agree that half a loaf is better than none, and I tried to get that across in the post, but still.
The speech wasn't mostly, or even primarily at all, about detainees. The "war must end" point was primary. And to the extent it did refer to detainees, the proposed course of action was one proposed in 2009 and then made all but impossible by Congress.
Once again, he's had four years to be making it clear that 'war' wasn't going to be perpetual. This is good, but it's shameful that there is any sense in which this speech is a change of direction.
37 -- I don't agree that it was made all but impossible. And I don't think one has to go the full Greenwald to say that maybe the President has at least some responsibility to legislation that he signs. Congress has been awful, no question about it. But I think the primary reason that the announced policy from 2009 was not executed is that the people put in charge of executing it didn't vote for the President, didn't believe in the policy (which was a repudiation of years of effort on their part), and were happy to see the President and the policy fail. This isn't/wasn't a secret, and the President went along for political reasons.
If its true that he only recently learned that his PRB process had not been implemented, despite an explicit timetable in his executive order on the subject, well, this gives him a good excuse to knock some heads. Let's see if he does that.
The war can't go on forever. This will end up being a detention problem, because the only legal basis for holding any of the prisoners -- especially those who someone in one of the agencies finds scary, but has not committed any crime -- is the continued existence of a legal state of war.
My main point is that it's weirdly short-sighted to view the speech as mostly about detainee issues. 39.1 and, more importantly, the fact that OBL was still alive and the perceived need to go into Afghanistan, explain why the speech couldn't have been given 4 years ago. ISTM that you don't need to endorse all Presidential decisions made since 2009 to appreciate the speech as a major and good event.
Sure. Let's see what he actually does.
31
Shearer and Halford were talking about federal prisoners. It seems to me like if the worst you can say about federal prisoners' established guilt is that very few of them are clearly innocent, then maybe a lot of them shouldn't be in prison!
There are 200000+ people in federal prison so if 1% are innocent that is 2000 people which you could say is a lot. However they are not easy to distinguish from the other 99% who are guilty. How many guilty prisoners do you want a President to pardon in their first month? Bearing in mind people are going to keep throughout their term a well publicized count of every additional crime the pardoned prisoners commit.
Certainly this speech was not exculpatory, but overall my view on it is more toward Halford's side of things (40 gets it right). And it is great to at least have an adult conversation on the subject of national security. But it is also most certainly an indication of how crap the political dialogue has been on this subject these past many years.
I can't place this speech on any objective scale, but it surprised the hell out of me. Has any non-fringe (sorry, Bernie) national pol explicitly said that the GWOT had to end, and sooner rather than later? I guess Kerry pointed in that direction, but the American People rejected him, so.
It doesn't make me optimistic, exactly, but it makes me more optimistic than my previous state of complete, utter depravitypessimism.
I have a vague recollection of Obama himself saying similar things a couple of years back, that didn't seem to turn into much.