Renditions Redux

David Rivkin and Lee Casey, Justice Department officials in the Reagan and George H.W. Bush administrations, penned an op-ed in the Washington Post (“Europe’s Runaway Prosecutions,” February 28, 2007) in which they urged Congress to enact legislation making “it a crime to initiate or maintain a prosecution against American officials if the proceeding itself otherwise violates accepted international legal norms” such as “where there is a clear case of immunity.”

The apparent catalyst for their op-ed is a rash of indictments from European courts and prosecutors and official investigations begun by European governments in February. In particular, the Europeans are looking into post-9/11 CIA renditions – defined as kidnapping in one country an individual” known” to be or suspected to have connections to terrorism and transporting him to a third country where the victim is subjected to torture by that third country’s security services.

Italian courts are proceeding with a trial in absentia of 26 CIA agents. They stand accused, along with 5 members of the Italian secret service, who will be in court, of kidnapping – the op-ed writers use the more neutral “apprehend” to characterize what took place on a Milan, Italy street February 17, 2003 – and transporting to Cairo the Egyptian cleric and terror “suspect” Osama Mustafa Hassan Nasr. Nasr, who had sought asylum in Italy, claims in an eleven-page letter that he was tortured repeatedly by Egyptian security personnel.

Further north, at the beginning of February, German prosecutors issued warrants for 13 CIA agents suspected of engineering the “extraordinary rendition” of Khaled al-Masri, a German citizen of Lebanese heritage, who was “disappeared” at the Serbian-Macedonian border and flown to a CIA prison in Afghanistan. Like Nasr, al-Masri alleges he was tortured after being turned over to Lebanese security personnel.

Also in February, Switzerland’s government (the Federal Council) gave a green light to Swiss courts to begin criminal prosecution of anyone involved in transporting Nasr through Swiss air space. (Allegedly, the CIA flew Nasr from Aviano Airbase in Italy to Ramstein Airbase in Germany and thence to Egypt.) Simultaneously, the European Parliament approved the findings of an investigation into the complicity of European nations in the rendition program in violation of EU policy – citing Britain, Germany, and Italy in particular but also noting that others knew of but ignored CIA flights carrying drugged “rendees” through their national airspace.

Rivkin and Casey do not object to extraordinary rendition which they characterize almost benignly: “a long-standing [“time honored”] and legal [at least in customary law] practice that generally involves the cooperation [connivance or conspiracy] of two or more governments in the capture and transportation of a criminal suspect outside of normal extradition proceedings” [alternate terms mine].

Note in their definition the absence of the terms “terror,” “terrorism,” or “terrorist” – what George Bush’s “war” is all about – and the use of the judicial referents “criminal” and “extradition,” terms that are understood by non-lawyers even without recourse to Black’s Law Dictionary.

Herein is either a major oversight by the writers or chutzpah of the highest order. They appropriated a definition of rendition intended to apply to serious breaches of national and international criminal law by individuals who have fled national law enforcement or are beyond INTERPOL’s reach in locales whose rulers refuse to enforce international standards or extradition agreements. They then leap from the court system to the anti-terror war system in what seems to be an attempt to justify all instances of rendition of accused “terrorists” to “cooperating” intelligence and security services, even those know to have little if any regard for human rights. Interestingly, as if they felt a high-profile “success” had to be trotted out as Exhibit A, the op-ed authors cite the use of rendition in finally bringing to justice the international terrorist “Carlos the Jackal” who was seized in Sudan after a “political” agreement and with Sudanese foreknowledge – and taken to France for trial – in 1994.

(I was not surprised that no mention was made of the effort by Spanish magistrates to bring Augusto Pinochet of Chile before the bar of Spanish justice. All the conditions of “rendition” – a person traveling to or living in a foreign land indicted for alleged war crimes or crimes against humanity in a second foreign country who is then detained by order of officials – except the one that makes all the difference, the secret violation of civil liberties, are on exhibit in that case.)

Rivkin and Casey see in these European actions a pattern [conspiracy?] intended to intimidate and dissuade U.S. authorities and field operatives from using extraordinary rendition against those the U.S. suspects or “knows” to be associated with terror. They propose legislation that would give U.S. prosecutors the power to indict foreign judges or magistrates who investigate and try CIA and other U.S. operatives who, echoing Nuremberg, are only doing what is necessary to ensure U.S. national security and, by extension, the security of an unappreciative Europe. They ascribe the Europeans’ stance to their typical anti-war sentiment and opposition to any secret CIA activity in Europe that might even remotely become a “shoot-out” with lethal consequences for abductors, intended abductees, and innocent bystanders.

In effect, the op-ed writers seem to be advising the U.S. to carve out another unilateral “preventive” posture – as with the International Criminal Court – by instigating reciprocal indictments of “a few overreaching foreign officials,” even when it is clear that an injustice was done by the original CIA rendition. But in pursuing this course, the writers fail to acknowledge, as President Bush did in his most recent press conference, that neither supreme leaders nor presidents know everything that goes on in their governments – and thus cannot be held accountable for what might go wrong in any single rendition. (Demonstrating knowledge of and approval by a supreme leader of a pending rendition is one of the “immunities” the writers suggest negates culpability of field operators.)

In the end, the writers recommend that in Europe “extraordinary rendition can probably be abandoned without severely undercutting the war effort.” Why? To avoid continuing (or increasing) the already hard feelings on both sides of the Atlantic.
Nothing about justice.

Nothing about civil rights.

Nothing about respect for human dignity.

And what of Nasr and al-Masri?

Earlier this month, after four years, an Egyptian State Security Court ordered Nasr’s unconditional release. The Egyptian court said that his original detention was unfounded.

Four months after he was abducted, al-Masri was abruptly flown to Albania and set free – with no more than a cursory explanation that his detention was a case of “mistaken identity.”