The worth of a law is in its enforcement; if a law is not enforced, then it has no more value than a platitude, aspiration, or preference. Because of this reason, one of AIUSA’s CTWJ campaign goals 100 days goals for the new administration is “accountability.” Or in other words, AIUSA will demand that the government account for illegal or wrongful conduct of its employees or agents in the “war on terror.”
At first glace, a general presidential pardon (which seems likely in some form) threatens the accountability process. But as I explain below, a pardon will likely only have a limited affect upon accountability.
As a general matter, a pardon precludes the US from prosecuting someone for criminal acts covered by the pardon. However, accountability comes in many forms, not the least of which is a process resembling a truth commission.
Congress has authority to summon witnesses to testify in hearings and a pardon does not limit this congressional power. First, witnesses will have few, if any, 5th amendment rights protecting them from self-incrimination if those witnesses previously received a pardon. If a witness has immunity, then there is no legal justification for that person to invoke the 5th amendment. Second, a pardon does not protect a person from prosecution for future crimes. If a person subject to a pardon refuses to testify, then congress can institute contempt proceedings against that individual.
There is also a question whether a pardon really protects US citizens from criminal liability. Genocide, torture, or other violations of the law of are grave breaches of international law. Grave breaches of international law trigger a doctrine called “universal jurisdiction,” meaning a person may be prosecuted by any country that obtains control over the person to be tried. So, a person subject to a pardon for grave breaches of international law may be immune from prosecution in the US but remain subject to prosecution in any other country. And if a person has received a presidential pardon but is detained overseas, then that county cannot extradite the American citizen back to the US for prosecution because the US will be precluded from trying the individual in American courts due to the broad application of the pardon.
So while a presidential pardon may create procedural or legal challenges to the accountability process, a pardon will not derail the accountability process.