



The Constitution provides the president virtually unlimited power "to grant reprieves and pardons" for federal crimes; only impeachment is excluded. A president need not give reasons for pardons and Congress has no power to reject or otherwise block them.

Historically, the pardon power has been used for a variety of reasons. Presidents have issued pardons to individuals to undo unjust or overlong sentences, or as an expression of mercy. Founding Father Alexander Hamilton wrote in the Federalist Papers that "the benign prerogative of pardoning" was necessary, otherwise "justice would wear a countenance too sanguinary and cruel." Until recent decades, it was the norm for presidents to issue hundreds of individual commutations and pardons each year.

But the president can also grant a pardon before charges are even filed for a crime, not just after a conviction. This has occurred most frequently after insurrections or wars fought to, in Hamilton's words, "restore the tranquility of the commonwealth." Andrew Johnson pardoned the soldiers of the Confederacy and Jimmy Carter issued a broad amnesty for Vietnam War-era draft dodgers. These amnesties permitted large numbers to return to the national fold.




Since 9/11, President Bush has pushed the limits of presidential power in numerous ways -- although he has barely used the pardon power, among the most explicit executive prerogatives. At a press conference in February 2001, Bush responded to questions about Clinton's Rich pardon, saying, "Should I decide to grant pardons, I will do so in a fair way. I'll have the highest of high standards." By mid-2007 he had commuted the sentences of just three minor drug offenders serving long prison terms and issued 113 post-sentence pardons.

But after a federal appeals judge last year upheld the 30-month sentence of vice-presidential aide Lewis "Scooter" Libby for his role in the Valerie Plame spy scandal, Bush called the penalty "excessive," extolled Libby's "years of public service" and commuted fully his prison time. It was a clear demonstration of his willingness to protect top officials involved in his wartime policies.

So what of those responsible for torturing detainees? There is the distinct possibility that in his administration's waning days Bush will issue a preemptive pardon for all those who have or may have committed federal crimes relating to detainee interrogations. He might even invoke his father's Orwellian praise of the Iran-Contra defendants, who were pardoned because of their "patriotism" and "long and distinguished record of service to the country," and who the elder Bush believed had been caught up in "the criminalization of policy differences."

