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Day 1461: Holder’s testimony justifies limited preemptive pardons [UPDATED]

Obama’s “looking over shoulder” assurances not withstanding

[5:56 pm EST update: On a special Sunday edition on of FNC's Special Report, Charles Krauthammer of the Washington Post echoed Gamecock's call for preemptive pardons for those CIA agents and others involved in the waterboarding and the decision to waterboard KSM and two other al Qaida leaders that led to information that saved thousands of American lives. Krauthammer went further and endorsed the awarding of medals to the agents and others involved. He suggested that Obama is "too smart" to follow the lead of John Conyers and Nancy Pelosi, but still said he hopes Bush will issue the preemptive pardons...and medals! Bravo Charles!]

Originally published by Mike DeVine, Legal Editor for The Minority Report

I have generally opposed blanket, preemptive pardons as Presidents leave office, as too violative of the rule of law. But Eric Holder’s (pictured) recent confirmation testimony gives me pause.

President-Elect Barack Obama recently reinforced my general opposition when he lauded the great and courageous work of intelligence personnel that should not have to “spend all their time looking over their shoulders,” when asked about the possible future prosecutions of those involved in “waterboarding” three high level captured al Qaida terrorists.

Vice-President Cheney said last week that he didn’t deem preemptive pardons necessary since all actions were legal.

But Obama’s nominee for Attorney General, the Cabinet position that will make decisions about illegality and prosecutions after the new president’s Day One, make it necessary in my mind that President Bush consider pardons, before his last Day 1461, for those that have been looking over their shoulders thanks to Obama and the Democrats’ rhetoric for the last four years:

Holder avoided directly addressing the possibility that Bush-era officials could face criminal prosecutions for their involvement in wiretapping and interrogation policies. But he quickly followed up by telling lawmakers that, when he called for a “reckoning” last year, he was referring not to indictments but to gathering information. Holder also cited the words of Obama, who has decried calls “to criminalize policy differences where they might exist.”

On counterterrorism policies, he said he would “follow the evidence, the facts, the law.”

Earlier in his testimony, Eric Holder unequivocally declared that he deemed waterboarding to be illegal torture.

Until now, I have kept my powder dry on Holder since there are consequences to elections; he may be the best we can get; he did say in 2002 that captured terrorists were illegal enemy combatants not entitled to POW status under Geneva; and since I considered Holder a minor fly on the wall with respect to the Hillary-driven FALN terrorist and Bill-driven Marc Rich pardons.

Given other testimony of Holder, but more so the loaded questions of Democrats and especially the intentions of John Conyers, one could also make a case that the Democrats’ politicization of national security and government policy in general (see US Attorney firings, etc), one could also justify sweeping preemptive pardons. But I think such pardons would usher in a lawlessness never before seen in America with preemptive pardons becoming as quadrennially traditional as “So help me God” at the end of the Oath.

Al Gore already did enough damage to the fabric of American exceptional-ism and uniqueness when he was the first to withdraw a Presidential election concession. Another such line we must not cross just now, and hopefully not ever.

My powder is still dry on seeking to deny Holder the AG job, but is no longer dry on deeming preemptive pardons acceptable on the narrow issue of those involved in waterboarding.

I just wish Obama would make it clear that he will not go down the road Holder suggests so that CIA heroes can rest their necks, now strained looking over their shoulders.

Mike DeVine’s Charlotte Observer, Examiner.com and Minority Report columns

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” – The Chief Justice of the United States, John Roberts

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