“Whisking”

Right wingers are always whining about how badly they’re served by NATO, but they’re just blowing smoke to conceal that NATO is their creature. If they feel otherwise, I repeat to them my many-times-given challenge: do it. Just withdraw the troops from European soil, tomorrow, I dare you. By your own account, you’ll save money, force the lazy “Euroids” to take care of their own defence, and be free to defend America without their encumbrance.

Strangely, they never take me up on the offer. Their bases are all still in the UK and Germany, where they have been for fifty five years (now ask just how likely it is they’ll leave Iraq voluntarily)

Mr. Bertram,

“Would the Wall Street Journal really contend that all and any acts (kidnappings? assassinations?) performed by foreign agents on US soil with the “knowledge and participation” of US government agencies (such as the CIA, or its operatives) should be taken to be acts carried out with the permission of the US government?”

Why should the WSJ not agree with that statement ? It seems quite logical to me, unless you are assuming that the US (or Italian) government does not control its agencies. That seems very unlikely to me, and even if that is the case, the US (or Italian) government should be concentrating on restoring control and discipline over them.

Mr. Derek,

The US has pulled out of many bases and facilities in Europe over the last 15 years, there remain only a fraction of the former establishments, and proposals to remove (or move elsewhere in Europe, notably to Eastern Europe) many more of these have been made. The biggest opposition to such closures seems to be on the part of European governments hosting these bases.

Is the suggestion that the CIA agents “whisked” this gentleman for their own nefarious reasons, unconnected to their service to the CIA? It seems obvious to me that the conduct was official.

There could certainly be situations in which knowledge alone wouldn’t equal consent, but I’m skeptical that there are real situations in which knowledge and participation by the government doesn’t provide consent. (One might come up with some fanciful set of circumstances in which the connection fails–e.g., the CIA agents inform the receptionist at the Italian intelligence agency of their plan, and tell him that it’s essential to their plan that their parking be validated, and the receptionist then validates their parking, and makes a recommendation for a restaurant for lunch as well. That one can imagine such things doesn’t mean that this is such a case, or even close to the line.)

The point on reciprocity actually cuts the opposite way. The US is, as we all know, much more likely to be engaging in conduct such as in this case than it is to be the host of it. We should expect the US to insist on a legal regime that maximizes its room for action abroad, even if it limits its jurisdiction at home in some hypothetical situations.

The editorial is very clear on the context of the “whisking”, and the next sentence, for those who don’t click through, is this: “The Milan prosecutor, Armando Spataro, contends that Nasr was “kidnapped.”” The WSJ apparently

I guess it depends on whether the Italians authorized the kidnapping. If they did, the Italian courts should probably be prosecuting the Italian agents who authorized it. If they didn’t, well just because you know a foreign agent is in your country on foreign business, doesn’t mean you are okay with anything they do. Does the WSJ really maintain that a US agent known to be in Italy can do anything at all, including murder or torture, without threat of legal recriminations from the Italian government? That would be pretty amazing.

If they did, the Italian courts should probably be prosecuting the Italian agents who authorized it.

They indicted (iirc) 7 Italian secret service agents along with 25 CIA.

Btw, a similar affair is unfolding in Germany: a bunch of CIA agents are sought by the Interpol for complicity in “kidnapping and subsequent torture” of a German citizen. And, according to the Der Spiegel link above, “similar criminal investigations are also being carried out in Portugal and Switzerland.”

The problem is that all these things were being done under the watchful eye of the Italian secret service (SISMI) during the Berlusconi administration, which was up to its neck in complicity with Bush White House insiders. In fact, US neocons like Michael Ledeen worked closely with Italian agents to fabricate intelligence used to justify the initial attack on Iraq. But the new Prodi government in Italy has been unable (or unwilling) to dig up the full story as SCIRI agents close ranks and US heavyweights exert pressure.

Given that one of Berlusconi’s primary objectives in seeking political power was to protect himself from corruption inquiries, subsequent issues of legal authority do indeed seem “rather beside the point”.

It’s worth keeping in mind that the political ideologies of Communism and Fascism are both very much alive in modern day Italy. And in this time of globalised corporate chicanery, there is obviously a lot of common ground between a wealthy media mogul like Berlusconi and the oil merchants at the helm of USA Inc for the last seven years. And of course the Wall Street Journal has repeatedly published bizarre nonsense propaganda in defence of such corporatist power-brokers.

The question isn’t that the Italians were complicit, it’s whether they consented to the acts, implicitly or explicitly giving immunity from Italian law to those foreigners participating.

Well, if this is indeed a solid defense, then I’m sure the CIA fellas will fearlessly show up at the trial and be triumphant.

Meanwhile, I’m curious: why wouldn’t the US house intelligence committee hold the hearings on this matter and find out what exactly motivated those brave agents and who gave the orders.

“jdk, I’m not sure what you’re getting at. The question isn’t that the Italians were complicit, it’s whether they consented to the acts, implicitly or explicitly giving immunity from Italian law to those foreigners participating. In the US, the government can’t consent to murder, but neither can it detain a UN diplomat charged with such a crime.”

Posted by Thomas

‘Implicit consent’ is the sort of thing that only a defense attorney would dream up.

Or the WSJ.

Or neo-conmen.

Chris, I haven’t asserted anything of the sort. (And I don’t think you have so far actually denied it.)

The “nod and a wink” bit is cute, but doesn’t fit with your outrage over the WSJ’s supposed abuse of language. We’ve moved from a focus on the supposed slippage between “explicit knowledge and participation of Italy’s security services” and “operating … with that state’s permission” to the suggestion that either of these descriptions is somehow equivalent to a “nod and a wink.”

I don’t know enough about the background principles of international law to say how strong the WSJ’s claim really is, but I know enough to say it strikes me as plausible. I haven’t said, and don’t now say, more than that. My references to the “question” of whether immunity had been granted, and the references to the “immunity claimed” I thought were explicit enough. If not, consider this a clarification. I certainly never said that the claimed immunity was the same as the immunity granted to diplomats or troops covered by a status of forces agreement; I said that the immunity claimed here works similarly. We know how immunity works, so we shouldn’t feign confusion or outrage over the concept, even if, as in this case, we’re unsure whether there exists a valid claim for immunity.

If you mean to have a discussion about the legal merits, feel free to begin.

Whenever I read pieces like that of the WSJ, and comments like the one from thomas, I find myself wondering what Hillary Clinton and Janet Reno* would do with the powers we are assured they will acquire after an election. Now, apparently, this includes secretly inviting foreign intelligence agencies to operate in the US, where they can kill and kidnap people (like, for example, thomas and the Op-ed writers of the WSJ) with complete impunity.

* I’m referring to the figures in rightwing demonology rather than the actual persons here.

John, that’s a disappointing response. Are you aware that the US invites all sorts of people into the country who can kill and kidnap while being immune from our domestic legal processes? Some of them are associated with regimes in Iran and North Korea and other really scary places. We call them diplomats. (Impunity isn’t the right word at all, btw.)

I think you’ve misunderstood the nature of the immunity claimed. We don’t prosecute UN diplomats, telling them to assert their immunity as a defense at trial. Rather, their immunity protects them from our legal processes altogether. The immunity claimed here works similarly.

thomas, in what relevant legal sense is diplomatic immunity similar to the alleged immunity enjoyed by spies operating in another country with that other countries knowledge or permission? diplomatic immunity is the subject of a major international convention that has been ratified by virtually every state in the world (and contains rules that were probably already jus cogens). the best wsj can offer by way of legal support for their claimed immunity is “long-established international legal practice”.

it’s not particularly convincing.

derrida–This may surprise you, but it is generally suspected that among the many diplomats protected by immunity there are some spies. The sharp separation your point depends on doesn’t exist.

Barry doesn’t have a point; he has some buzzwords. It’s true that the fact that a government has approved of the presence of foreign intellegence agents doesn’t mean that the goverment has approved of everything they do. Immunity isn’t meant to suggest approval. Whether the approval of the presence of the agents gives the agents immunity depends on the background legal principles; of course it isn’t a matter of deduction from the mere fact of approval.

snuh, the claimed immunity is an immunity from the legal processes of the host jurisdiction, and so, as I said in response to abb1, the suggestion that the agents should assert their immunity at trial is a conceptual confusion–the immunity is meant to protect them from the trial, not just from a conviction.

I’m not sure why you are so quick to discount “long established international legal practice” as a source of international law, particularly when you are willing to assert that some long established international legal practices–on a related subject!–were jus cogens.

maybe i wasn’t clear enough before: can you point me to any source (e.g., a treaty, an ICJ judgment, an article in a reputable journal of international law etc) that tends to support the existance in law of your claimed immunity?

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.

Actually, at least one of them did try to play the diplomatic immunity card, the guy named Lady, former CIA station chief in Milan:

“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

JohnQ, do you understand anything at all of the concept of immunity? Until you say something that suggests you do, there’s not much point to a conversation on the subject.

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

I’m not sure that the judgement of the Supreme Court constitutes “international law”.

ejh, decisions of the Supreme Court on international law are a source of international law. International law isn’t just law professors opining to one another, though it might appear that way. I’m not sure I understand your doubts about the responsibility of the country of origin to determine whether the conduct constitutes an offense; that’s how immunity works ordinarily. If there is a valid claim of immunity here, I’d expect that it would work in the ordinary fashion.

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?

“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?”

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.

John,

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.

Thomas – Do you ever have a point? When you strip out the childish personal attacks and lectures on irrelevant subjects*, there’s not much left is there? Is this how you argue your cases, or do you sometimes address points of fact and law? Just wondering.

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