With talk of a special prosecutor again in the air and the looming prospect of a Democrat taking over the White House, CIA officials involved in prisoner interrogations and the disputed handling of videotapes of those sessions may seek the only ironclad assurance against any criminal prosecution: a presidential pardon.
Such a pardon could come from President Bush as he prepares to leave office or from a new president early in 2009.
"I think there's a real possibility one of President Bush's last acts very well might be granting immunity to certain CIA employees," a defense attorney who has defended military personnel accused of prisoner abuse, Frank Spinner, said. "I think it depends in part on the election."
A critic of the Bush administration's interrogation policies, Thomas Malinowski of Human Rights Watch, said the pardon issue would put the White House in an awkward position as Mr. Bush's term winds down.
"It's going to be a dilemma for them, a real dilemma," Mr. Malinowski said. "The problem with a pardon is that it makes it seem that you're admitting that crimes were committed. It has been extremely difficult for this administration to do that. I think they want to go down claiming that what they did wasn't torture and it was perfectly legal. To issue pardons would undermine those claims."
One particular challenge for Mr. Bush is that he personally approved use of the so-called enhanced interrogation techniques, such as the mock execution method known as waterboarding. As a result, some view him as ultimately culpable.
"The person who might be most in need of a pardon is not the run-of-the-mill CIA interrogators, but the president who authorized the treatment," Mr. Malinowski said. "Personally, I don't think it would be right to go after CIA employees who were operating on the belief, based on those Justice Department memos, that what they were doing was legal, without first holding accountable civilian leaders in the administration who authorized them to do those things."
Mr. Malinowski said the ignominy of what is perceived as a self-pardon means the issue of clemency would likely be left to the victor in the 2008 election. "If the next president does it, it will be viewed as more of a healing act," he said.
A Democratic presidential candidate, Senator Biden of Delaware, is already calling for a special prosecutor in connection with recent disclosures that CIA officials ordered the destruction of videotapes of interrogations of at least two prisoners.
At a campaign stop in San Francisco yesterday, a Republican presidential hopeful, Mayor Giuliani, said the Justice Department should investigate how and why the tapes were destroyed. However, in response to a question from The New York Sun, he rebuffed the call for a special prosecutor. "I believe the Justice Department is perfectly capable of answering the question … and then the Justice Department can determine the consequences," he said.
The White House did not respond to a request for comment for this article. Answering questions on another subject yesterday, Mr. Bush's press secretary, Dana Perino, said the White House's policy is to "never comment" on any possible pardon.
In response to lobbying from the White House, Congress has passed two measures in recent years that contain legal protections for interrogators acting on instructions from higher authority. However, the language in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 does not offer the flat-out immunity of a pardon. In addition, the recent legislation may not offer protection to senior officials or for charges that could stem from the destruction of the videos, such as obstruction of justice.
The passage of time could relieve some interrogators of legal jeopardy. The statute of limitations for most federal crimes is five years, except in cases where death resulted. That means harsh interrogations from 2002 and 2003 will likely be beyond the reach of the law by 2009, when a new president is sworn in. However, some harsh practices, such as waterboarding, reportedly continued until 2005, leaving those involved in the legal crosshairs until 2010.
One question White House lawyers would have to wrestle with is how to word such a pardon, since the identities of individual interrogators are usually a closely guarded secret. Pardons, on the other hand, are usually public, though President Truman issued some without public notice.
One possibility is a blanket pardon that would cover all military, CIA personnel, and contractors involved in prisoner interrogation, as well as those who made decisions about the disputed videos. It is not necessary to name recipients of a pardon. President Ford issued a conditional amnesty to Vietnam-era draft dodgers and President Carter later granted unconditional clemency.
However, a blanket pardon could upend convictions already obtained in cases of prisoner abuse. It's also possible that some defendants engaged in conduct that had little or nothing to do with interrogation might try to claim that the rough treatment was intended to seek information.
A former congressman who served as a CIA officer, Robert Simmons, said he has concerns about a pardon because it could suggest guilt, but he wants some peace of mind for those who acted on what they thought were legally vetted orders. "Who wants to volunteer to do this kind of work if you're going to end up in jail or with all of your life savings taken away?" he asked. "If you don't build in some protections for people involved in very difficult dangerous work, you're not going to get anybody to do the work and you're going to end up with a 9/11."