by: Charlie Savage, The New York Times


President Bush attends a turkey-pardoning ceremony on Thanksgiving in 2006. In the next few months, the Bush administration will decide whether to grant pre-emptive pardons to officials involved in questionable “counterterrorism” practices, to ensure that those officials will not be vulnerable to prosecution under future administrations. (Photo: whitehouse.gov)

    Washington – Felons are asking President Bush for pardons and commutations at historic levels as he nears his final months in office, a time when many other presidents have granted a flurry of clemency requests.

    Among the petitioners is Michael Milken, the billionaire former junk bond king turned philanthropist, who is seeking a pardon for his 1990 conviction for securities fraud, the Justice Department said. Mr. Milken sought a pardon eight years ago from President Bill Clinton, and submitted a new petition in June.

    In addition, prominent federal inmates are asking Mr. Bush to commute their sentences. Among them are Randy Cunningham, the former Republican congressman from California; Edwin W. Edwards, a former Democratic governor of Louisiana; John Walker Lindh, the so-called American Taliban; and Marion Jones, the former Olympic sprinter.

    The requests are adding to a backlog of nearly 2,300 pending petitions, most from “ordinary people who committed garden-variety crimes,” said Margaret Colgate Love, a clemency lawyer.

    Ms. Love, who was the United States pardon attorney from 1990 to 1997, said the backlog was overwhelming the vetting system, meaning that many petitions might not reach Mr. Bush’s desk before he leaves office.

    “I have cases that date from the Clinton administration,” Ms. Love said. “I have cases that I filed in the last two or three years and have not even gotten any word about the first step of the investigation being authorized. It’s unbelievable.”

    A Justice Department office with about half a dozen officials reviews petitions and recommends whether requests should be granted, although presidents are free to disregard its views. Under the Constitution, Mr. Bush can issue a commutation, which reduces a sentence, or a pardon, which forgives an offense and erases the criminal record, to anyone.

    But even if a felon’s petition reaches the Oval Office, legal specialists said that most of those seeking mercy from Mr. Bush should expect to be disappointed.

    The Bush administration took office amid heavy criticism of Mr. Clinton’s last-minute pardons, most notably to Marc Rich, the fugitive financier whose ex-wife had donated to Mr. Clinton’s presidential library.

    Against that backdrop, Mr. Bush has made little use of his clemency powers, granting just 157 pardons and six commutations. By comparison, over eight years in office President Ronald Reagan granted clemency 409 times and Mr. Clinton 459 times. More than half of Mr. Clinton’s grants came in his final three months.

    Fred F. Fielding, the White House counsel, declined to be interviewed about clemency plans.

    Erik Ablin, a Justice Department spokesman, said the administration was committed to “giving each clemency petition received the careful review that is necessary to make an appropriate recommendation.” Mr. Ablin noted that any cases left unresolved by Mr. Bush would stay open for his successor.

    As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?

    Such a pardon would reduce the risk that a future administration might undertake a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated laws regarding torture and surveillance.

    Some legal analysts said Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt. But several members of the conservative legal community in Washington said in interviews that they hoped Mr. Bush would issue such pardons – whether or not anyone made a specific request for one. They said people who carried out the president’s orders should not be exposed even to the risk of an investigation and expensive legal bills.

    “The president should pre-empt any long-term investigations,” said Victoria Toensing, who was a Justice Department counterterrorism official in the Reagan administration. “If we don’t protect these people who are proceeding in good faith, no one will ever take chances.”

    Emily Lawrimore, a White House spokeswoman, would not say whether the administration was considering pre-emptive pardons, nor whether it would rule them out.

    “We are going to decline to comment on that question since it is regarding internal matters,” Ms. Lawrimore wrote in an e-mail message.

    The administration would also not disclose any views submitted on petitions. The first time Mr. Milken sought a pardon, for example, prosecutors and the Securities and Exchange Commission opposed it.

    New petitions for clemency are on pace to surpass 2,100 this fiscal year, which ends in September. The record is the 1,827 petitions filed in 2001, which included Mr. Clinton’s final months.

    P. S. Ruckman Jr., a political science professor at Rock Valley College in Rockford, Ill., said records of annual clemency petitions dated only to 1860. However, Mr. Ruckman said, it is virtually certain this year’s mark will be the most in history because the population was smaller and there were fewer federal criminal laws in the country’s early years.

    The Justice Department does not release a list of petitioners, but will say whether specific people have requested pardons or commutations. The New York Times submitted nearly two dozen names of prominent felons.

    The department said it had not received petitions from several recently convicted political figures, including I. Lewis Libby Jr., Vice President Dick Cheney’s former chief of staff; Jack Abramoff, the former Republican lobbyist; Bob Ney, a Republican former congressman from Ohio; and George Ryan, a former Republican governor of Illinois.

    The department had also not received petitions from several people associated with major financial scandals in recent years, like at Enron, WorldCom and Adelphia, nor from Conrad M. Black, the conservative former newspaper publisher, nor Martha Stewart.

    It also has no petition for Jose Compean and Ignacio Ramos, two former Border Patrol agents whose case has become a cause célèbre among some conservatives. They were convicted of shooting a fleeing drug smuggler along the border with Mexico and trying to cover it up. The pair are ineligible to apply for clemency through normal procedures because their cases are on appeal.

    But in January 2007, Mr. Bush told a Texas television interviewer that he would review the agents’ cases; presidents are free to give pardons and commutations to people who have not submitted a petition. In July 2007, for example, Mr. Bush eliminated Mr. Libby’s prison sentence even though he had not applied for a commutation.

    Far more commutation petitions are being submitted than in the past, largely because of changes to federal sentencing in the 1980s: the abolition of parole and the institution of tough sentencing guidelines and mandatory minimum terms. One of the charges against the Border Patrol agents, for example, carried a mandatory 10-year sentence.

    Mr. Bush has received 7,146 petitions for a reduced sentence – more than five times as many as Mr. Reagan received. But the pardon office has not grown in proportion to the workload.

    Ms. Love argued that the backlog and delays were “a major flaw in the justice system” because clemency is becoming more important. Sentences are longer, and the stigma of being a felon has increased because of added background checks for many things, including gaining employment and doing volunteer work, she said.

    “If we really want to give people a second chance,” Ms. Love said, “then we have to include a pardon which is reasonably available to them. It’s not, now.”

    ——–

    Sarah Abruzzese contributed reporting

 

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