05/18/2009 05:12 am ET Updated May 25, 2011

Obama Pardons Madoff

(Washington, D.C.- April 17, 2009) President Barack Obama announced today that he has issued a full pardon to Bernard Madoff and ordered his release from prison.

In a statement released by Press Secretary Robert Gibbs, President Obama stated that nothing could be gained by sending the 71 year old financier to prison for the rest of his life, since this would not lead to any of his former investors getting their money back.

The statement went on to read:

"This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."

Before I start receiving comments taking the story of Madoff's pardon seriously, let me acknowledge that this is satiric, but like all satire, has a serious point. The quote from Obama is, however, real. It applied not to Madoff, but to Obama's decision to provide amnesty to CIA officers who may have engaged in illegal torture.

The idea that punishing those who break the law is nothing but "retribution" or "laying blame for the past" is of course contradictory to basic principles of the rule of law, and Obama the law professor certainly knows that. Sending a swindler who has already spent the money to prison will not return the funds to the victims, sending a murderer to prison will not bring back the dead, and prosecuting a torturer cannot relieve the detainee of the pain he suffered.

But the criminal justice system does not punish wrongdoers only to return the victims of their crimes to their former state. One purpose of punishment is to deter people considering committing similar crimes in the future by making them fear the consequences.

The message that Obama sends by refusing to even consider prosecuting CIA officers who may have committed war crimes, is that in the future, government officials can commit similar acts with impunity.

It is good that Obama has said that under his administration, America doesn't torture. But that doesn't prevent a future administration from reverting to the Bush/Cheney policies. If officials in such a future administration know that the next President might prosecute them for their misdeeds they might think twice before carrying them out. Otherwise, there's nothing to stop future war crimes.

Obama was almost certainly under tremendous pressure from the CIA to grant immunity to its operatives. There even may have been threats, implicit or explicit, to undermine his administration. Nonetheless, granting amnesty to those who may have committed war crimes under the justification that they "were just following orders" violates basic principals of human rights and the rule of law.