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October 10, 2007

Comments

Someone else's memory/quotation of the cartoon:

"What do you think about the secret bombings?

Villager #1: What secret? We knew all about them.

Villager #2: That's right. I looked up in the sky and said "Look Martha,
here come the bombs.""

I fail to understand the rationale of the "state secrets privilege". Cannot the court convene in camera, i.e. behind closed doors, to handle the case?

In Finland, all treason and espionage trials are secret. Only an abstract of the verdict is published or the verdict is published stripped of the classified parts. The accused and his/her consel are bound not to divulge or to use any classified information that comes into the open during the trial. It goes without saying that the same applies to the judges. (The closed doors may also used for sexual crimes and criminal and civil cases involving trade or family secrets.)

A court case behind closed doors is not ideal, but if legitimate secrets are the issue, it is much better than having people denied the basic right to sue the state for breaking their rights.

That's what we do, trial behind closed doors. But judge isn't a political function in the netherlands.

I don't have a link to the Doonesbury cartoon, but it's Saturyday November 10, 1973. It's included in the CD-Rom on the Bundled Doonesbury. I hope that helps.

I'm copying my comment from a less appropriate thread to here: Mark Kleiman has an idea for what to do about Khaled al-Masri -- not that it'll ever happen. Kevin Drum thinks the Supreme Court's rejection of the case might be the best we could've hoped for given the current composition of the court (which if true is a bad sign for the next decade or more).

This entire sorry, distressing episode should be a lesson to all of us that THEY ARE IN CONTROL, not us. "They" being the people in the Executive and Judicial branches of government who just make up fascist shit as they go along, and force feed it to the rest of us.

I hope Mr. Masri has some recourse through German courts and/or through the Hague.

There is some minor possibility that a future Congress could offer him some form of satisfaction, whether in payment for the US having terrorized him, or by making a court available to him.

The really scary aspect of this mess is that there is no recourse for American citizens who may be treated like Masri was. If you are picked up by the CIA, or by your local Sheriff, mistaken for a "terrorist" from the other side (not one of our own terrorists), and shipped off to prison somewhere to be tortured, you will have no recourse against the government for whatever horrible treatment is forced on you, if the government invokes the "state secret" defense.

I hope Masri will disclose, if he has not already, the case he was prepared to make in court. Even though some judge somewhere living in an Alice In Wonderland world might continue to say that Masri's revelations are "secret," those of us in the real world will know better and can perhaps do something about it.

At this point, if Masri is denied any sort of recourse against the CIA in Germany, the Hague, or everywhere, his only meaningful recourse is to start assassinating CIA and other government employees. Now isn't that a horrible state of affairs? Who wants anyone to be put in that position?

I wonder if it would do any good to go into some of the conservative online sites and start a fundraising effort for Masri....

I fail to understand the rationale of the "state secrets privilege". Cannot the court convene in camera, i.e. behind closed doors, to handle the case?

That's how Abdul Rahman, planner of the first WTC bombing, was tried and convicted.

We know how to do this. Both the precedent and the logistics are available. The system to do this is in place, and it works fine.

IMO the issue here is expanding executive prerogative in the name of national security. The courts won't call Bush on it, and apparently neither will Congress.

I have no idea where that leaves us.

Thanks -

Doran, while turning into Michael Kohlhaas might be understandable, I don't think it counts are "meaningful recourse", especially if it's directed at people who aren't connected with his case except by being government employees.

I think that Masri can sue the state of Macedonia in the European Court of Human Rights. After all, he was detained there (without any due process) and extradited illegally while Macedonian officials had a good reason to believe that Masri's human rights will not be honoured by the receiving party. Unfortunately, he does not have any basis (as far as I see) to sue German Bundesrepublik, as its officials have not been breaking his rights. I even believe that the German authorities have done what has been in their power to get Masri out. Anyhow, he can have the Macedonian state to pay him reparations.

By the way, the European Convention on Human Rights stipulates that every person must have a right to efficient recourse if his/her rights are violated by a private person or by the state. It is rather interesting to see that the U.S. is obviously lacking such recourse. One more reason why you would not qualify as a member state for the European Union, even if you wanted. :-)

Lurker, my suggestion should have been worded more precisely. Why can't Masri sue the US in German courts?

"The Supreme Court decided today not to hear Khaled el-Masri's case."

I assume you wrote this yesterday. Sorry, it was jarring to see under the large "October 10, 2007," when that happened October 9th.

I'm glad you wrote about it; I saw surprisingly little yesterday. I've blown my outrage meter, myself.

Why can't Masri sue the US in German courts?

I was wondering that myself. If he got a judgment against the U.S., surely we have some property sitting around over there?

But I can imagine that German courts might refuse jurisdiction, or any meaningful relief, in such case.

Advokaten, what say you? Besides criticizing my German grammar, that is?

To KCinDC:

Access to courts, and litigation of claims in those courts, is the civilized replacement for guns, knives, and other self-help techniques at achieving revenge, satisfaction, and retribution.

If the courts are effectively closed to someone like Masri, and if such a person wants satisfaction for the wrongs done to him or her by the government, and the identities of the wrongdoers are concealed by the government, then actions against the symbols and agents of the government may, for some, be the only, or perhaps most, meaningful recourse. This kind of self-help is prevalant in most societies where there is no judicial system for righting wrongs, either because such a system does not exist or, if it does exist, it is corrupt.

Western civilized society has attempted to reduce the person-to-person violence inherent in self-help of this nature, by making the courts available to people who have been wronged. As the Executive and Judicial branches of government, states as well as federal, make access to the courts more difficult and less available, those branches increase the likelihood that self-help will come back into fashion in this country.

Thank you for the link to Kohlhaas. I read it after I wrote the immediately above description. All I can say is, under the circumstances faced by Kohlhaas, more power to you. Those circumstances are very much like those being forced on people like Masri by the neo-fascists in the Executive and Judicial branches of government in this country. Hell, they may even initiate a return to breaking on the wheel, given their success at Gitmo and other places.

Gary, Katherine posted this at 1:15 a.m. EDT (and I'm not sure what time zone Katherine is in). Perhaps when your outrage meter blew it somehow upped the sensitivity of your jar-ometer, unless you're usually jarred when looking at the late-night TV listings. People generally don't act as if a new day has started when they're up at midnight.

I am not a jurist, but as far as I know, you cannot a sue a foreign state in a court of law. The states enjoy immunity which means that they cannot be brought to the court. After all, how could a court enforce compliance by a foreign nation? If you confiscate its property, you commit an act of war. The claims against foreign states are enforced in their own courts. (We recently had a person who tried to sue Russian Federation in Helsinki district court. His case was thrown out as frivolous. Now he proceeds the case in a Russian court.)

If the your own state feels that you are entitled to a redress, it will try to use diplomatic channels to further your aims. However, this is a political decision. In extreme cases, the use of force may come into question. For example, the U.S. occupied Haiti in the early 20th because of a quarrel about two "wrongfully" hanged U.S. merchant marine sailors. I'm rather sure that Germany won't try the same with the U.S. ;-)

"Cannot the court convene in camera, i.e. behind closed doors, to handle the case?"

The "state secrets privilege" alleges that It's Just Too Secret to do that. Yeah, otherwise that's a norm for handling classified material in court.

"But judge isn't a political function in the netherlands."

I'm not clear what distinction you're trying to make with the U.S. Judging in the U.S. -- of which there are a variety of entirely disparate types, that really can't be compared, from justice of the peace, to what is a "Superior Court" in some states, but is a "Court of Appeals" in others, to a circuit court, to an appeals court, to a state court, to a federal court, to a muncipal court, to bankruptcy court, to small claims court, to divorce court, to juvenile court, to immigration court, to the FISA court, to... -- is a "political function" in what way, do you mean, and referring to which U.S. courts?

As to this case, just in case it isn't explictly clear enough for all citizens of the world, the Bush Administration is using the "state secrets privilege," a dubious concept only invented in 1953, in a case, United States v. Reynolds, where the SCOTUS seems to have nodded off one afternoon, to avoid legal scrutiny of their "disappearances" regime.

We've now achieved true third world Latin American strongman-level status in our justice system.

It's time for the Mission: Impossible team to come in, and trick Dick Cheney into being caught on live tv confessing all, and then killing himself. Barney will alter the feed, and Willy will smuggle Barney into the White House in a large box that no one realizes has a man inside it, because Willy is so strong. Rollin will wear a Barbara Bush, Senior, disguise, to get George out of the way. I know this will work.

"Gary, Katherine posted this at 1:15 a.m. EDT [...] People generally don't act as if a new day has started when they're up at midnight."

Fair enough. Having gone to bed unusually early last night, I didn't see it till just earlier, under the big "October 10," and didn't even think to look at the time.

Me, I'm so anal-retentive that I'm still bugged that Katherine keeps posting as Hilzoy (it would be so hard to post as "posted by Katherine"?). It's being bugged by stuff like that that makes me think I'm a bit Aspergersy.

Lurker, we are all punching in the dark here, due to a lack of knowledge about such things. This is getting particularly aggravating, given that a frequent contributor to this blog is a really good lawyer who probably could address our questions. Publius, where are you?

Until Publius shows, I'll try to fill in a blank or two. First, there are undoubtedly treaty provisions between the US and Germany which give Germans access to sue US persons and maybe the US itself, in German courts. There are just too many US citizens in Germany, and too large a US presence, to think that some kind of treaty provisions of this nature do not exist. If someone knows if this is or is not correct, let us know.

For instance, there are US statutes which have allowed US citizens to sue Iran in US courts for damages done to hostages, as I recall.

Germany has issued arrest warrants for 13 CIA officers involved in el-Masri's rendition

My God. Can anyone imagine the shitfit that the US would throw if Germany actually detained and prosecuted them?

Tim Harper of the Toronto Star notes that the el-Masri decision could affect Maher Arar's appeal:

The only other rendition victim seeking redress in American courts is Canadian telecommunications engineer Maher Arar. Arar was shuttled to a Syrian prison, where he was tortured after being picked up by American authorities at New York's JFK Airport in 2002.

His U.S. lawyer said Arar's appeal of a lower court ruling would proceed in New York on Nov. 9 and pointed to differences in the two cases that could keep the Canadian's case alive.

Maria LaHood said in the el-Masri case, the government argued it cannot even reveal if the German was rendered.

But in the Arar case, the government has acknowledged the Canadian was removed to Syria, she said, but has argued it cannot reveal why.

Washington argues the reason Arar was sent to Syria is a "state secret,'' but LaHood said she will argue on appeal that the reasons are not relevant, only the rendition is at issue.

"This was a real disappointment that the court would not even hear the case and would just defer to the executive,'' she said.

"But we believe that these issues will be dealt with on a case-by-case basis.

"(Yesterday's) decision doesn't bode well for the judiciary's role in our government, but it does not necessarily have an impact on Maher's case.''

"I have no idea where that leaves us."

There are a variety of other cases involving the state secrets privilege, mostly over the NSA wiretapping program, which might result in SCOTUS considering the state secrets privilege again, although it seems darned unlikely to me that this SCOTUS would be skeptical about the doctrine. Wouldn't do el-Masri any good, to be sure. He's just been twice screwed.

"Can anyone imagine the shitfit that the US would throw if Germany actually detained and prosecuted them?"

It's not going to happen, because none of them will be entering German territory again.

I don't know if everyone is aware that Rendition is about to be released (the 19th, actually), incidentally. We'll see how it does (I'll be surprised if it's a hit, Meryl Streep not withstanding, but at least it will be out there).

Anarch: My God. Can anyone imagine the shitfit that the US would throw if Germany actually detained and prosecuted them?

Of course. Not going to happen, though. The CIA officers will be warned not to enter the borders of the EU, and, I presume, no US court will entertain an extradition warrant for their arrest.

Oh, man. I had my hopes up because of the LATimes article from Monday.

A wrong, terrible decision.

you cannot a sue a foreign state in a court of law

I recall some suits against Iran that were allowed to proceed. Can't lay hands on my old Chemerinksy volume on FedJur ... anyone?

and, I presume, no US court will entertain an extradition warrant for their arrest.

Maybe the'll make a Berlin invasion Law, analogue to the The Haque invasion law. Treaties with the US tend to be one-street traffic.

Gary: I thought most judges in the US were political functions (as in 'voted for by the public') but in this case we were talking about SCOTUS judges.

Oh, and I do have an old link about a case against a country:

The decision was the first time a federal judge ruled on Iraq's role on the hijacked airliner attacks on the World Trade Trade Center and Pentagon, a lawyer in the case said. Although the U.S. government suspects Iraq supported the strikes it has accused bin Laden of orchestrating, it has not been able to prove a connection.

U.S. District Judge Harold Baer ordered that a group of defendants including bin Laden, his Al-Qaida network, the Taliban, Afghanistan, Saddam Hussein and the Republic of Iraq pay the families for pain, suffering and economic losses.

"I conclude that plaintiffs have shown, albeit barely ... that Iraq provided material support to bin Laden and Al-Qaida," Baer wrote adding that a substantial portion of the evidence was hearsay.

"My decision reflects no more than that the facts and the available inferences meet the plaintiff's burden of proof."

Two witnesses testified they believed that Iraq had a role in the attacks, including former CIA Director R. James Woolsey, who headed the spy agency from February 1993 to January 1995, and Laurie Mylorie, an expert on Iraq and terrorism.

I never followed up and I hope this idiotic verdict was annuled later on.

Question for Supreme Court watchers/lawyers:

The NY Times article Katherine linked doesn't mention the vote in the court; from the LA Times story Monday I learned that only four votes are needed for the court to hear a case.

Is it the custom when the SC declines to hear a case that there's no record of who voted which way, or is there a record and it simply wasn't reported in the story?

In case anyone wants to research her, the Haaretz article misspelled Laurie Mylroie's name.

Dutch, federal judges are not elected. Some state and local judges are, but I'm not sure what proportion of states do that. Some states are really into electing everything: judges, sheriffs, registers of wills, surveyors. Not sure that anyone actually gets elected dog catcher anywhere.

That's a good question, Nell. I also wonder whether any of the votes for not hearing the case were from justices who would prefer not to set the precedent they expected would be set with the current composition of the court.

Is it the custom when the SC declines to hear a case that there's no record of who voted which way, or is there a record and it simply wasn't reported in the story?

Generally there's no record (I think). Sometimes there will be noted dissents. CharleyCarp would know better than I, however. SCOTUSblog says on this one that there were no recorded dissents.

KCinDC - that wouldn't surprise me. It also wouldn't surprise me if some of the justices close to the administration voted no so as to spare it the embarassment.

I would guess on the current court you would get Thomas, Alito and Roberts upholding the state secrets doctrine. Scalia and Kennedy are likely a closer call.

"Gary: I thought most judges in the US were political functions (as in 'voted for by the public') but in this case we were talking about SCOTUS judges."

Not so much. Federal judges are all appointed. After that, it's a potpourri, and it just depends upon which state, and which kind of judgeship, as I previously started listing. Some are elected, some are appointed, some are kinda a mix, and most all of the elected ones, with some exceptions, might as well be appointed, for all that the public is aware of them. Most state's have appointed judges for most categories, I believe, but, again, the thing it's always hard for Europeans to grasp is that each state makes its own law, and organizes itself its own way, so there just really isn't much sound generalizing possible.

But the exceptions where it's both a public election, and for a prominent position, such as in Alabama, tend to be very noticeable.

The wonderful thing about the state secrets doctrine is that the original case it was created under United States v. Reynolds, the alleged secrets turned out not to exist, and it was eventually revealed that the government had used the claim merely to cover up embarassing details.

But, what the hell, stare decisis.

Saw the decision, winced, moved on. I am no longer even surprised when our government officials, courts included, act like Soviet apparatchniks. I have basically given up on this country. Oh, it's still worth voting, and even participating in elections and such, out of a basic sense of self-preservation, to slow the rot. But we have let too many of our freedoms disappear over my lifetime to ever regain them. I'll concentrate on training my kids to flee the country when necessary.

Judicial activism at its finest. The Constitution provides for a judicial system to address cases and controversies, and there isn't a whisper of a state secret exception.

Where oh where is the conservative outcry against this activism?

"Where oh where is the conservative outcry against this activism?"

One would tend to think that the Founders would think a "state secrets doctrine" smacked of a king.

Since I was criticizing Obama on these issues, I want to point out: he & Edwards not only are clearly better than Romney, Giuliani, et. al on these topics--they're also both better than Clinton.

KCinDC, Ugh: There's an awesome discussion (seriously, it's fascinating) about the workings of the Rule of Four at the end of latest (2003) edition of Hart & Wechsler. Explains why sometimes declining to grant cert. gets an opinion and also goes into interesting issues of when it's proper to dismiss a grant of cert. after oral argument.

Yeeuaaghargguggh. From Katherine's link:

Clinton was similarly vague about how she would handle special interrogation methods used by the CIA. She said that while she does not condone torture, so much has been kept secret that she would not know unlesselected what other extreme measures interrogators are using, and therefore could not say whether she would change or continue existing policies.

"It is not clear yet exactly what this administration is or isn't doing. We're getting all kinds of mixed messages," Clinton said. "I don't think we'll know the truth until we have a new president. I think [until] you can get in there and actually bore into what's been going on, you're not going to know."

Certainly it's not clear exactly what they're doing, but it's clear to anyone who's been paying attention that some of the things we do know they're doing are unacceptable and that existing policies should be changed.

RE HRC: I don't understand what's so friggin hard about this. "There will be no torture in my administration. There will be no legalistic, redefinition of the term to permit the CIA to conduct what otherwise constitutes torture."

trilobite: I'll concentrate on training my kids to flee the country when necessary.

You might want to consider writing a training manual for sale to others. Your kid could probably flee with quite a bit of money from the proceeds. Put me down for the first copy.

or "kids"

You probably can't have his first-born kids.

KC, Katherine: I don't like that Clinton is being all weaselly, but I note that she's doing it about EVERYTHING in that interview, including social security. I think she's decided that she has the nomination in the bag and her best bet is to avoid taking any position she doesn't absolutely have to about anything during the primary, so she can go into the general with flexibility. This is right out of the Shrum playbook. It is far from inspirational, but it does not necessarily mean she doesn't care about torture. It just means she ain't gonna tell us one way or the other.

Rationally, that still makes her a better choice than any likely R candidate, as they're all proudly pro-torture. But feh.

TPM has a transcript that's not damning.

You think? The transcript adds that we shouldn't torture & should abide by Geneva--good things to say, but according to the stated position of the Bush administration we already don't torture & abide by Geneva. The question is how you define "torture," & whether the CIA techniques qualify. I'm all for acknowledging the level of secrecy, but: (1) I'm not sure she's promised to be less secretive; (2) there's been enough specifics about the techniques leaked that she should be able to take a clear position on whether they're torture, illegal, whether they'd be banned under her admin, etc.

Not arguing that she wouldn't be better than Romney or Giuliani. I just think she's worse than Obama or Edwards.

ok, maybe less damning. I agree she's worse than obama and edwards. If Gore steps into the race, can Obama turn over his campaign cash to Al in exchange for the Veep slot? I'm guessing no (even without the quid pro quo).

Just to mention it, according to Der Spiegel, the German government has backed down in September 2007.

Now, though, in the face of US intransigence, Germany has backed down. SPIEGEL has discovered that, in order to avoid a conflict with Washington, Berlin has decided to forgo forwarding a formal request that the agents be arrested.

It is - maybe - possible that things might still change. Once again mentioning Der Spiegel, the German parliament is still investigating the case.

Right now though, his chances don´t look good. Unless of course, the CIA agents would visit the EU again. As far as I know, the arrest warrants are still valid inside the EU.

Aren't there arrest warrants for some CIA guys in Italy as well?

Masri doesn't need a lawyer, he needs an agent. The fastest, surest way to receive compensation for his loss is to sign a six-figure book deal, then option his story to a Hollywood studio. So much for Bush's state secrets.

Aren't there arrest warrants for some CIA guys in Italy as well?

Probably.
CIA Agent On The Run

CIA Kidnappers Accused by Italian Court

The arrest warrants and extradition orders seem still to be there.
The trial though depends now on the decision of the Italian Constitutional Court. Cause of Italian State Security. :)
The Italian government, like the German one, isn´t that keen on a trial. Haven´t heard anything about a decision till now.

"The fastest, surest way to receive compensation for his loss is to sign a six-figure book deal, then option his story to a Hollywood studio. So much for Bush's state secrets."

Possibly you missed my comment above; how do you suggest his story will differ from next week's Rendition?

And what makes you think anyone wants to offer him a six figure advance, or that the American public would rush to buy his book? (Can't wait for the LGF cover quote.)

Clinton was similarly vague about how she would handle special interrogation methods used by the CIA.

I don't understand what's so friggin hard about this. "There will be no torture in my administration.

It's not hard. It's easy as pie. All that is required is for the intention to be there.

I don't think any reading between the lines is necessary. It appears that Clinton is not, as a matter of principle, opposed to "harsh" interrogation methods.

The things that are out in the open are bad enough to warrant comment. If she wanted to make a statement, she could. She doesn't.

I don't like that Clinton is being all weaselly, but I note that she's doing it about EVERYTHING in that interview, including social security.

Take it at face value.

Thanks -

"according to the stated position of the Bush administration we already don't torture & abide by Geneva"

And I would be interested in hearing President Bush explain the case of Maher Arar.

It appears that Clinton is not, as a matter of principle, opposed to "harsh" interrogation methods.

OK, my apologies. I take it back.

Josh Marshall has what the Clinton campaign claims is the full text of the interview here. The money quote, as far as I'm concerned, is this:

I think we have to draw a bright line and say ‘No torture – abide by the Geneva conventions, abide by the laws we have passed,' and then try to make sure we implement that.

Other than excluding the "try" in the last clause, this sounds fine to me.

Thanks -

I'm really not looking forward to a Hillary candidacy, for a variety of reasons -- I'd take either Edwards or Obama over her-- but the partial quote that the WaPo published suggests a windup to the same sort of media smears that Gore encountered in 2000. Read the question, and then her entire answer, and it is clear that the somewhat nebulous nature of her response was wholly due to the even more nebulous nature of the question. The partial quote they gave is nothing but the sort of quote-mining that has is unfortunately all too familiar.

@Detlef: I wonder whether the Supreme Court's refusal to hear el-Masri's appeal will have an impact on the German government.

It would be easier for them to back off pursuing the CIA agents if it can be seen that the victim is getting some satisfaction through the law.

Now that the Court has in effect said that there is no recourse for victims of CIA abduction and torture, I'd think the pressure would be back on.

Nell, the problem with that is that there is really no practical recourse for the German government, assuming that the CIA agents stay clear of the EU for the rest of their lives. They can't force the US to extradite the agents for trial: the US has not signed up to the International Criminal Court: and allowing Americans who have killed foreigners to be extradited for trial in foreign jurisdictions is not ever going to be a popular policy with Americans.

The next obvious step to oppose the US would be to make the EU more of a coherent body - the US has consistently opposed this, because the EU is now the nearest thing to a global superpower that exists besides the US. But, the EU doesn't have so much a supranational government as it has a whole bunch of supranational interlocking and overlapping bureaucracies. It wasn't planned: it just grew. Two reasons the EU has no military: one is US opposition, the other is that no one can soberly think of any way the EU in its current form could have EU military.

Dutch, federal judges are not elected. Some state and local judges are, but I'm not sure what proportion of states do that.

Ah, ok. I just wanted to remark that I would understand there being more reservations about 'closed doors' in an American trial because the role of the judges is different. I said 'more political' and with hindsight that is probabely more the difference between civil law and common law.

I think this development in the el-Masri case is bad and it should not be possible. If all countries involved were European he could go to the European Court of Justice. But there is no equivalent outside Europe. The ICJ only handles cases between States as far as I know, not individuals.

I understand some things are state-secrets, but personally I would prefer much more transparancy. So far the 'state secrets' label has way too often been misused. By all governments actually, we still haven't found a government majority to start investigating our Iraq participation (also state secrecy for now and hoping it will be old news soon). State secret should not be an easy convenient mean to avoid being checked.

But in this case el-Masri should have his compensation (75,000 dollars is what he asks for afaik) and apologies and the State should take the responsibility and procecute the torturers. It might make current torturers think twice.

Iirc, Rumsfeld was ready to blow a conference in Germany, if the German government would not coerce the German courts to drop the charges against him (or to take the case against him, not sure anymore). In theory the German police would have had to arrest him the moment he set foot on German soil. He had to be informed that Germany has (theoretically) independent courts that did not answer to the executive. But there was some kind of assurance that an arrest warrant would not be honoured and that Rummy would be perfectly safe.
What this imo showed was that
1) BushCo don't understand the idea of judicial independence
2) think that law does not apply to them (be it foreign or domestic)
3) still fear that 1+2 could be ignored and they be prosecuted by someone they could not bully into submission

Hartmut, I understood that Germany decided not to arrest Rumsfeld for trial because he was (then) Defense Secretary, and it seemed unnecessarily provocative to arrest someone who was currently the equivalent of a government minister? But that once he'd resigned and was merely a private citizen, it is now much more open that Germany (or another EU country, if Germany sent an extradition request) could have Rumsfeld detained for trial? (At this point, it would appear that it would be only sensible for anyone who had a responsible post in the Bush administration and who prefers not to be prosecuted to stay within US borders after they retire...)

The case of Rumsfeld in Germany was rather interesting, in fact. He was at the time a person protected by diplomatic immunity (Vienna convention etc.). If he had committed murder in Germany, the German courts would be unable to do anything about it. The same applies to any crimes against humanity. Indeed, even the ICC could not demand Germany (or any other country) to extradite a person protected by diplomatic immunity. However, the situation would be most awkward for all parties.

(BTW, the Americans are under ICC jurisdiction if they commit war crimes in countries which have ratified the ICC convention. Most of the countries with "black sites" have done this. The ICC itself considers that no state can grant an immunity to persons on its soil after the country has ratified the ICC convention.)

Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation:

It is well known that there are two different aspects according to which it may be possible to consider the issue of immunity of Heads of State: first, the so-called functional immunity or immunity for official acts (or ratione materiae), which is granted to all state officials for the purpose of not hampering, or interfering with, the performance of state activities. The consequence is that a public official cannot be held accountable for acts performed in the exercise of an official capacity, as these are to be referred to the state itself. An application of this principle to diplomatic agents can be found in Article 39(2) of the Vienna Convention of 1961. Secondly, the personal immunity of Heads of State, based on a treatment comparable to those granted to diplomatic agents for personal acts, implies immunity both from civil and criminal jurisdiction (with some well-known exceptions, at least for diplomats) as a form of additional protection.

Rumsfeld isn't a head of state. He may have been a diplomatic agent - in fact, giving him that status as Secretary of Defense attending a conference as a representative of the US government would seem only right - but if Rumsfeld were brought to trial, he would either have to claim that he had no idea what was going on; or to claim (now he's no longer in office) that he was instructed by the President or Vice President that kidnapping people, imprisoning them without trial, and torturing them, is official US government policy, and that claims by the victims of this policy must be made against the US, not against individuals who just happened to be working for the US government at the time; or that none of it ever happened.

If I were Rumsfeld, I would stay in the US.

Oh, and - thanks to Avedon at Sideshow: Illustrated Scribble.

(BTW, the Americans are under ICC jurisdiction if they commit war crimes in countries which have ratified the ICC convention. Most of the countries with "black sites" have done this. The ICC itself considers that no state can grant an immunity to persons on its soil after the country has ratified the ICC convention.)

ICC? Is that true? Iraq has not signed, but Afghanistan has. Does that mean that Americans who abused and tortured in Afghanistan *can* be sued via the ICC?

Does that mean that Americans who abused and tortured in Afghanistan *can* be sued via the ICC?

If the U.S. fails to prosecute them, yes. Only one has been prosecuted by the U.S. -- David Passaro, a CIA contractor who beat an Afghan prisoner to death with a flashlight.

I googled him up. Gosh, that guy has serious issues and should never have been IN the job.

Of note, Maher Arar will be speaking via a teleconference in front of the US House of Representatives this Thursday, Oct 18th at 2pm. The hearing is being held be the House Committee on Foreign Affairs and is entitled "Rendition to Torture: The Case of Maher Arar"

For more information see http://foreignaffairs.house.gov/hearing_notice.asp?id=911.

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