Minority Pre-Tort

Ford did that.

This is why I thought the disappointment with the Democrats over FISA was quite reasonable but was overblown in its predictions of the effects of the law. Surely we were never going to see prosecutions of telecom companies or Bush apparatchiks no matter what happened, because Bush would have preemptively pardoned everyone.

Rich, the reason the FISA bill was so horrible is because it granted immunity from civil suits, something that the Bush Administration couldn’t do on its own. He could pardon them, but he could not completely remove them from the jurisdiction of the courts (and, ergo, from courts’ fact-finding powers — subpoenas, depositions, etc.). He needed the collaboration of the Democrat-controlled Congress to do that.

John, ISTM that the president doesn’t have the power to pardon pre-emptively, but it’s most likely a question that will never be answered until some president tries to do it. At which point he will get away with it because this is the type of political question that the courts don’t like to address.

Is it clear that the few limits that exist include precluding the pardon of pre-crime?

Well, I acknowledge that the question has yet to be litigated, but there is a very strong argument to that effect:

The President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws, his claim to which was the principal cause of James II’s forced abdication.

http://caselaw.lp.findlaw.com/data/constitution/article02/09.html#10

Yeah, I think John’s off-base here– pardons can clearly come before prosecution and must clearly come after commission.

But he still wins, for the double-axle-pun-with-a-twist title.

the crimes have already occurred — different from Dick (Minority Report)

Unfortunately, the title of the post, no matter how difficult to execute, should be disqualified for making the wrong move, since the President’s power of pardon doesn’t apply to torts, not even post-tort.

On a somewhat different point, it’s odd that Ford pardoned Nixon for crimes he ‘may have committed’ in addition to crimes he ‘has committed’. It’s as if he’s a modal realist who thinks he has sovereignty over merely possible worlds. I suppose the real explanation is more mundane: Ford didn’t want his pardoning statement to imply that Nixon had actually committed any crimes. What he meant to say is that his pardon covers all crimes Nixon has committed, if he has committed any.

“The President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws,”

I thought that it was a matter of consensus among serious Washington thinkers that the Commander-in-Chief (let’s give him his proper title) has this power for the duration of the current unpleasantness, and has properly exercised it. The problems discussed here only seem to arise because of the unaccountable tradition of changing Commanders every eight years.

In Britain, the Intelligence Services Act 1994 authorizes the secretary of state to grant immunity from British prosecution to personnel when they engage in any acts abroad that would be illegal under British law, such as murder.

But surely if the acts were committed abroad, they wouldn’t come under British law anyway? If I go to the US and shoot someone, I can be prosecuted under US law, but I can’t be prosecuted for murder in Britain; I can only be extradited.

@19, there are, I believe, such things as ‘crimes of universal jurisdiction’. If, however, MI6 are committing any of these, we really are in the sh1t. I think the key point here is that, in the unlikely event of a country seeking to extradite a British spy for putting a cap in the local Blofeld, the Act renders that impossible.

Section 9 of the Offences Against the Person Act 1861 gives the courts in the UK jurisdiction over homicide committed by “any subject of her majesty” outside the UK, meaning that the UK courts would be able to try our hypothetical secret agent absent immunity granted under the Intelligence Services Act. I don’t think the question of what effect such a immunity would have on extradition has come up, although extradition might be avoided as the conduct would perhaps fail to satisfy the double criminality requirement as the immunity would mean that the actions were not a crime in the UK.