• Yes, we all know what diplomatic immunity is, and immunity under the Status of Forces agreement, and that none of the defendants have it.

As P O’Neill references in the first comment on this post, the scenario you suggest did happen with the murders of Orlando Letelier and Ronni Moffitt, the latter being a US citizen by members of Pinochet’s secret police, DINA.

The head of DINA, General Manuel Contreras, was indicted in the US as the intellectual author of this crime, but Chile refused to extradite him. He was eventually tried and convicted, doing seven years in prison in Chile.

I doubt if John would have changed sides and supported the murder of Ms. Moffitt. As for yourself, I’m not so sure.

Indeed. Conversely, as I’ve been pointing out, arguments like yours and those of the Bush Administration in favour of the unfettered freedom of foreign spies to engage in kidnapping and murder would stop the first time something like this was done to an American in the US.

For sure, but it’s a sizeable “if”. And normally we’re talking about normal criminal charges, not political kidnappings. Things like this are far closer to the case, mentioned in the article you cited, of states pursuing their enemies across borders.

It would be bizarre to argue that US agents can behave just how they choose in other countries and then the sole judge of their conduct would be the US.

decisions of the Supreme Court on international law are a source of international law

And so they are, but they do not in themselves constitute same.

Why wouldn’t the US be willing to argue for maximum latitute for its agents elsewhere

I hadn’t argued that they would not. In fact very clearly they are doing precisely that…

given that it isn’t giving up much at home

Or indeed anything at all.

I’ve addressed the reciprocity point above, and I don’t think your doubts add much to that. The fact is that the US is more involved in the affairs of other nations than other nations are involved in the affairs of the US. Further, the US is more likely to engage in these sorts of activities than other nations are. Why wouldn’t the US be willing to argue for maximum latitute for its agents elsewhere, given that it isn’t giving up much at home?

engels, was there a point?

If they acted with the knowledge and consent of the Italian government they are immune from criminal prosecution in that country

But if the position of the Italian government is that they did not have knowledge of, or express consent for, these acts, then where is the argument?

The piece appears to argue (I say “appears”, it’s a bit of a strained argument if you ask me) that it is up to the foreign government to decide whether or not the actions of its agents in another country consistute an offence. I’m inclined to doubt this and I’m also inclined to wonder whether the US government would accept such a claim if made by a different government about the actions of its agents in the US.

derrida, where is it even suggested that “all spies” have immunity? I thought JohnQ meant us to be surprised that a spy might have immunity, but there’s no cause for surprise at all (assuming one has the least bit of understanding of the subject—a big assumption as it turns out).

snuh, it isn’t “spy immunity” that is claimed. It is immunity for the agents of a sovereign (essentially the same immunity that has been recognized by treaty in the context of diplomatic immunity). Here’s an explanation of the principle, complete with case cite, from a recent WashingtonPost oped:

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.” http://www.washingtonpost.com/wp-dyn/content/article/2007/02/27/AR2007022701160.html

This is the nub, isn’t it? I mean it’s clear that the concept and practice of diplomatic immunity predates the existence of intenational conventions on the subject. For instance, at the court of Elizabeth I it would have been assumed that the functions of the Spanish Ambassador included not only the gathering of information but the recruitment of agents and the fomenting of pro-Catholic rebellions. He would not have been arrested for any of these: had Walsingham chosen at any time to reveal his knowledge of any of these activities, the outcome would not have been the Ambassador’s arrest, it would have been a request that he returned to Spain.

But at the same time, had any of the Ambassador’s agents been fingered, they would have been arrested, interrogated, tortured and executed.

“A judge has rejected an appeal by a former CIA station chief in Milan against an arrest warrant issued for his alleged role in the kidnapping of an Egyptian cleric, ruling that he was not protected by diplomatic immunity.
[...]
Pesce [Lady’s lawyer] contended that Seldon Lady’s work as an intelligence officer accredited at the U.S. Consulate protected him.

But Milan Judge Enrico Manzi ruled that Seldon Lady lost immunity when he left his post in August 2004, and that in any case consular officials could be arrested for grave crimes, according to court documents obtained Tuesday by The Associated Press.

He said that consular officials did enjoy protection, “but always within the limits of international law. Within these limits, naturally, is the principle of the sovereignty of the host state that cannot allow on its territory the use of force by a foreign state that outside every control of the political and judicial authorities.’‘”
http://www.populistamerica.com/italian_judge_rejects_appeal_of_cia_arrest_warrant

fwiw, the “long established international legal practices” underpinning diplomatic immunity date back to at least the law of ancient rome. this immunity was recognised by the congress of vienna in the 19th century and by the vienna convention in the 20th century (which is binding on virtually all countries by reason of it having been ratified by them). save for occasional revolutionary ferment, state practice hasn’t seen any meaningful departure from it for the last 200 years.

good luck establishing anything “similar” about your spy-immunity.