Europe's Runaway Prosecutions

By David B. Rivkin Jr. and Lee A. Casey
Wednesday, February 28, 2007

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.

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.

The United States has used extraordinary renditions as part of the war on terrorism, but the continuing value of this tactic, particularly in Europe, is questionable. One of the primary European objections to the concept of a "war" on terrorism is the fear that U.S. forces will treat Europe as a battlefield. Although this fear is specious -- international law has long provided that, even in wartime, a nation cannot pursue its enemies into the territory of friendly countries without their express permission -- extraordinary rendition gets uncomfortably close to U.S. military operations on European streets. Moreover, unlike many other aspects of U.S. policy, extraordinary rendition can probably be abandoned without severely undercutting the war effort. That being the case, and given the obvious and increasing hard feelings the policy has prompted in Europe, extraordinary renditions should end.

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."

Because of this general rule, elaborate Status of Forces Agreements are negotiated before the troops of one state are stationed in another. These agreements usually narrow the jurisdictional immunities to be enjoyed by American troops stationed abroad, although under the NATO Status of Forces Agreements, to which Italy and the United States are both parties, America retains primary jurisdiction over offenses committed by individuals on duty -- as would have been the case here. If the Status of Forces Agreement does not apply -- as it might not, because intelligence agents are involved -- then the general rule applies. In either case, it is up to American, not Italian, authorities to determine whether any offense was committed in the capture and rendition of Nasr.

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.

The authors served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush, and have been expert members of the U.N. Subcommission on the Promotion and Protection of Human Rights.

© 2007 The Washington Post Company