Others, including current and former administration officials, have argued that it would be inadvisable for the new administration or Congress to initiate investigations into government conduct towards detainees in the "war on terror". US Attorney General Michael Mukasey, for example, has accused the administration's critics of making "casual requests for criminal investigations" and conflating "legal disagreements with policy disagreements". He has claimed that the "institutional effects" of such investigative measures "could well endanger our future national security".10In similar vein, the former head of the US Department of Justice's Office of Legal Counsel (OLC), the office which has provided a number of legal opinions during the "war on terror" that helped enable crimes under international law and other human rights violations to be committed with (thus far) impunity, has claimed that such investigations would weaken the Justice Department and the CIA "in ways that would compromise our security".11 Stripped to their essence, such arguments amount to little more than assertions that the government should be able to perpetrate torture, enforced disappearance or other such human rights violations with impunity, so long as they are carried out in the name of national security. Such arguments have been heard before; indeed, the inclusion of an obligation to bring all perpetrators of torture and similar violations to justice in treaties such as the Geneva Conventions and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) was intended to reject such arguments categorically, based on the experience of gross violations of human rights that were seen in the twentieth century.
At the time of writing, there was concern that the outgoing administration might consider issuing pre-emptive presidential pardons, possibly amounting to a blanket amnesty, to individuals who have perpetrated crimes, including crimes under international law such as torture and enforced disappearance, during the so-called "war on terror". International law prohibits the use of pre-emptive pardons or other forms of amnesty where they result in impunity for crimes under international law -- including all instances of torture, any other ill-treatment of detainees held for reasons related to an armed conflict, and enforced disappearance -- or for other serious human rights violations.
If President Bush were to issue the rumoured pardons, it would compound the gross violations of international law, and human rights in particular, already committed in the name of national security. The USA will remain bound to reverse any resulting impunity, including potentially by the administration and Congress challenging the validity of any such pardons. Such pardons would also all the more clearly oblige other states to exercise their jurisdiction over such crimes, including, for instance, as expressly provided for by the Convention against Torture and Geneva Conventions. Treaty obligations also require the USA to assist such foreign prosecutions, including by extraditing the individuals accused and/or providing evidence.