Buried in this story from the AP about President Bush's recent pardons is this little aside about prosecuting (and pardoning) executive transgressions of international law and the constitution:
One hot topic of discussion related to pardons is whether Bush might decide to issue pre-emptive pardons before he leaves office to government employees who authorized or engaged in harsh interrogations of suspected terrorists in the wake of the Sept. 11, 2001, attacks. Some constitutional scholars and human rights groups want the incoming administration of President-elect Barack Obama to investigate possible war crimes.
If Bush were to pardon anyone involved, it would provide protection against criminal charges, particularly for people who were following orders or trying to protect the nation with their actions. But it would also be highly controversial.
At the same time, Obama advisers say there is little — if any — chance that his administration would bring criminal charges.This shouldn't come as a surprise. Why, after all, would a politician assuming the most powerful position in the world want to do something that could possibly end up limiting his authority? Prosecuting a former president is "divisive" in today's post-partisan world, and why risk establishing a precedent that could someday be used against a President Obama?