Tuesday, January 13, 2009

Context: Napolitano on "Blanket Pardons"

In an earlier report (here), Andrew Napolitano - a "Senior Judicial Analyst" for Fox News - said George W. Bush cannot issue a blanket pardon to everyone who may have engaged in enhanced interrogation techniques because: "You've got to name them. You can't pardon somebody without saying who it is." The source of this insight? Nothing. No case. No authority. No legal document or legislation (modern or ancient).

First, it is unfortunate that Napolitano would buy into the rhetoric of "blanket pardons" while discussing the clemency power. As currently employed, a "blanket pardon" would preemptively immunize whole categories of persons (but especially key Republican officials) for an entire category of crimes. But, for 200 plus years, however, the term of choice has generally been "amnesty." Of course, presidents have granted dozens of amnesties. So where is the mystery in that? Can a president grant an amnesty? Of course.

But, should anyone - like Napolitano - have the impression that amnesties can be granted without naming persons, but a pardon is not operative without the name of a recipient, we note the existence of the following clemency warrants and their recipients:

February 14, 1805 (Jefferson) blank space
January 29, 1810 (Madison) "a number of individuals"
November 5, 1810 (Madison) "a number of indivdiuals"
October 8, 1812 (Madison) "a number of individuals"
July 24, 1827 (JQ Adams) "Daivd Coffin and others"
March 23, 1844 (Tyler) "owners"
November 7, 1849 (Taylor) "boat"
March 14, 1851 (Fillmore) "steamer"
June 12, 1865 (Johnson) "W.W."
May 10, 1889 (Harrison) "John"
September 24, 1891 (Harrison) "Jim"
January 4, 1892 (Harrison) "Chu-dul-en-u and two others"
March 4, 1892 (Harrison) "Tom"

These examples do not include hundreds - that's right hundreds - of others where 1) a first name is given and no last name 2) a nickname is given and no other or 3) schooners, steamboats or corporations are named in violations, but their individual owners and operators are not.

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