Power, Pragmatism, and Prisoner Abuse: Amnesty and Accountability in the United States

America’s commitment to human rights and the rule of law has long been an integral part of the nation’s self-image as an idealistic and inspirational society. It has been substantiated in the United States’ promotion of the rule of law around the world. However, as has been extensively scrutinized in recent years, the lackluster pursuit of accountability for the widespread abuses committed by American personnel during the so-called “War on Terror” illustrates a disjuncture within domestic and international discourse between the dual perceptions of the United States as a law-abiding nation, and America as a law-breaking state. This article seeks to explore this disjuncture through investigating the rationales of the Department of Justice (DOJ) for limiting accountability for the widespread torture of detainees by CIA interrogators. The article begins in Section II by providing an overview of the nature and extent of the prisoner abuse and the efforts by the Bush administration to avoid respecting domestic and international prohibitions on torture and degrading treatment. In Section III, the article explores the domestic law governing the Federal government’s use of leniency for political offenses, and given the international dimensions of the systematic prisoner abuse, U.S. unilateral and multilateral involvement in the decisions of foreign governments grant leniency for serious human rights violations. Section IV examines the DOJ decisions by analyzing extensive data compiled in two unique datasets relating to the United States’ enactment of domestic amnesty laws and pardons, and its involvement in foreign amnesty negotiations. That analysis is grouped under the following themes: amnesty, empire and hegemony; amnesty, denial and justificatory claimsmaking; law, politics and pragmatism in the use of amnesties; and amnesty, mercy and the public welfare. The article will argue that although amnesties and pardons are products of and regulated by law, their use creates exceptions to the law that are motivated by a range of inter-related political concerns, such as power, sovereignty, legitimacy, and national security. These concerns have been evident in America’s historical engagement with amnesty laws and continue to be central to contemporary debates on accountability for prisoner abuse.