Euro lawfare against US
David Rivkin and Lee Casey:
An Italian court announced this month that it is moving forward with the indictment and trial of 25 CIA agents charged with kidnapping a radical Muslim cleric. These proceedings may well violate international law, but the case serves as a wake-up call to the United States. Overseas opponents of American foreign policy are increasingly turning to judicial proceedings against individual American officials as a means of reformulating or frustrating U.S. aims, and action to arrest this development is needed.I like this idea. Dueling lawfare. The US has already indicated it is not going to extradite any of the accused CIA agents to Italy. The prosecutions will inhibit our ability to operate in the future and therefore we need to deal with this problem in an aggressive way now.
The Italian case involves a 2003 CIA mission to apprehend an Egyptian cleric named Osama Mustafa Hassan Nasr. Suspected of terrorist ties, Nasr was seized in Milan and transported to Egypt, where he claims he was tortured. This was, of course, an "extraordinary rendition" -- a long-standing and legal practice that generally involves the cooperation of two or more governments in the capture and transportation of a criminal suspect outside of normal extradition proceedings. It was through such a rendition that the terrorist "Carlos the Jackal" was delivered for trial to France from Sudan in 1994.
Yet the United States must still vigorously resist the prosecution of its indicted agents. If they acted with the knowledge and consent of the Italian government (as The Post's Dana Priest reported in 2005), they are immune from criminal prosecution in that country. Although foreign nationals traveling abroad are ordinarily subject to local judicial authority, international law has long recognized an exception for government agents entering another country with its government's permission. As Chief Justice John Marshall explained in The Schooner Exchange v. McFaddon (1812), an early Supreme Court case involving the immunity of a French warship in American waters, "[o]ne sovereign being in no respect amendable to another . . . can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign nation, though not expressly stipulated, are reserved by implication."
Unfortunately, the effort to prosecute these American agents is only one instance of a growing problem. Efforts to use domestic and international legal systems to intimidate U.S. officials are proliferating, especially in Europe. Cases are pending in Germany against other CIA agents and former defense secretary Donald Rumsfeld -- all because of controversial aspects of the war on terrorism. These follow Belgium's misguided effort to pursue "universal jurisdiction" claims for alleged violations of international law, which also resulted in complaints against American officials including Vice President Cheney and former secretary of state Colin Powell. That law was amended, but the overall problem is unlikely to go away. The initiation of judicial proceedings against individual Americans is too attractive a means of striking at the United States -- and one often not subject to control by the relevant foreign government.
Accordingly, Congress should make it a crime to initiate or maintain a prosecution against American officials if the proceeding itself otherwise violates accepted international legal norms. Thus, in instances where there is a clear case of immunity, U.S. prosecutors could answer proceedings such as the Italian indictments with criminal proceedings in U.S. courts. By responding in kind, even if few overreaching foreign officials are ever actually tried, such a law would create a powerful disincentive for these kinds of legal antics.