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Why the CIA tapes were destroyed...


Americans often need their memories refreshed. This is an old report, but apparently this came out within a month of when the now infamous CIA interrogation tapes were destroyed... Retired agent John Kiriakou is now making major headlines, finally admitting that yes the CIA used water-boarding, and yes it is in fact a form of torture. Anyhow, it's helpful to see what was going on regarding the agency and torture at the time.

ASIL Insight
Alleged CIA Kidnapping of Muslim Cleric in Italy
By Frederic L. Kirgis
July 7, 2005

Introduction

In late June 2005, it was reported that an Italian judge had issued arrest warrants for 13 U.S. CIA agents accused of kidnapping imam Hassan Mustafa Osama Nasr in Italy in 2003, and sending him to Egypt for questioning regarding possible terrorist activities. Nasr apparently is an Egyptian national, although he was living in Italy when he was abducted. Allegedly, when he arrived in Egypt he was imprisoned and tortured during interrogations. The Italian government has denied that it condoned his abduction, but former CIA agents have said that an Italian intelligence official gave his implicit approval.[1]

The case raises several questions under international law. Did the United States violate Italy’s sovereignty if CIA agents abducted Nasr in Italy, as alleged? Did the United States violate its international legal obligations if it delivered Nasr to the control of a government that would be likely to torture him or to acquiesce in acts of torture against him? Could Italy obtain extradition of the CIA agents (who apparently are no longer in Italy)? If Italy does get custody of them, would they be immune under international law from prosecution in Italian courts?

Italy’s Sovereignty

In 1927 the World Court set forth a basic rule: “the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State.”[2] Agents of one State who abduct someone in another State would be exercising State power. There is no general rule of international law permitting that kind of State power in the territory of another State. Nevertheless, the latter State – Italy in this case – could waive its right to object, by consenting to the exercise of power. If Italian officials did consent, even tacitly, that should do away with the violation-of-sovereignty issue.

The Torture Issue

Torture is universally regarded as a violation of international law. No government openly asserts that torture is lawful. It is condemned under several treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a multilateral treaty to which 139 States (including Egypt, Italy and the United States) are parties. Article 3 of the Convention against Torture says, “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” It goes on to say that the existence of a consistent pattern of gross, flagrant or mass violations of human rights should be taken into account in ascertaining whether that standard is met. The United States understands “substantial grounds for believing that he would be in danger of being subjected to torture” to mean “if it is more likely than not that he would be tortured.”[3]

It could be argued that even if U.S. agents kidnapped Nasr and had him delivered to Egypt for questioning, the United States did not “expel, return or extradite him” within the meaning of the Convention. Clearly, the United States did not extradite him, and it probably could not be said to have “expelled” him within the meaning of the Convention. The question then would be whether it “returned” him to Egypt. Arguably not, since he apparently was living in Italy and had not come there from Egypt. But the contrary argument could also be made, since he apparently is an Egyptian national who lived in Egypt at some time in the past.

It could also be argued that there were not substantial grounds for believing that Nasr would be in danger of being subjected to torture, even if Egypt had tortured some prisoners in the past. But here again, a counter-argument could be made -- particularly if the United States had substantial grounds for believing that Egypt in the past had consistently tortured prisoners, or had in particular tortured prisoners like Nasr (for example, those suspected of terrorist activities).[4] If there were substantial grounds, it would not matter for purposes of Article 3 of the Convention whether he was actually tortured once he got there. If there were not substantial grounds in advance to believe he would be in danger of torture, Article 3 would not be violated even if he was actually tortured after he arrived. Article 3, in other words, looks to what could be expected rather than to what actually happened after the individual has been turned over.

Extradition

News reports have not indicated where any of the 13 CIA agents are now. Since they apparently are not in Italy, the Italian prosecutors are hoping to have them extradited back to Italy for trial if they can be located.[5] Extradition is normally accomplished under an extradition treaty between the requesting and the requested State. Extradition requests are made through diplomatic channels, not directly by prosecutors or by the judge who issued the arrest warrants. If the Italian government acquiesced in the kidnapping, it is unlikely that it would request extradition of those who carried it out. That would end the matter, at least if none of the 13 return to Italy on their own.

If an extradition request were made to the United States government, and if any or all of the 13 agents are in the United States, the controlling international legal instrument would be the 1984 Extradition Treaty between the United States and Italy.[6] It says that an extraditable offense is one that is punishable under the laws of both States by a prison sentence of one year or more. Assuming that the conduct of the 13 agents would be treated as kidnapping under Italian law, the next question would be whether it would fall within a relevant kidnapping statute in the United States. Looking just at the federal kidnapping statute (which does provide for sentences of at least one year), it applies to “[w]hoever unlawfully . . . kidnaps . . . or carries away and holds for ransom or reward or otherwise any person . . . when the person is willfully transported in interstate or foreign commerce . . . .” Because of the words “or otherwise,” the statute has been held not to require that the abductors’ purpose be pecuniary gain. But the U.S. Supreme Court has said that Congress’ evident purpose in adding the words “or otherwise” was to reach abductors who seek some benefit for themselves, even if it is non-pecuniary.[7] That probably would not be the case with respect to the CIA agents, who presumably would not have been seeking direct benefits for themselves if they were carrying out instructions from their superiors in the U.S. government.

The United States-Italy Extradition Treaty does not permit either State party to decline extradition simply because the person sought to be extradited is its own national. But the Treaty does say that extradition shall not be granted when the offense for which extradition is requested is a political offense. Many other extradition treaties say the same thing. There is doubt about just how far the “political offense” exception extends. It has been said that “[t]he purpose of the political offense exception is to shield persons whose prosecution or punishment by the requesting state is politically motivated or for an offense whose genesis is the criminalization of conduct which constitutes an expression of political or religious belief.”[8] It has also been noted that in practice, the political offense exception is rarely used successfully.[9] The exception certainly could be asserted in the case of the CIA agents, but whether it would be successful (assuming that the kidnapping is otherwise covered by the Treaty) is hard to predict.

Comments

Erin said…
Hey Pete: Your old friend Erin Nissley (from the Martinsburg Journal) here. Just wondering what you've been up to. I'm in Scranton, PA covering courts, having a good time. Keep in touch...

-Erin (nissley@hotmail.com

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