There ought to be a law

Two former Justice Department officials complain about Europe’s–in particular Italy’s–use of the courts to undermine some aspects of the war on terror, such as the practice of extraordinary rendition:

>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.

Of course the question is whether the Italian government had given their consent. According to their prosecutor, they had not:

>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.

“If” is the key word. The Italian prosecutor so far seems not to share that view. For the sake of the people ordered to rendition Nasr, let’s hope he’s wrong. This seems like it would be then a straightforward factual question. But the authors quickly shift gears:

>Unfortunately, the effort to prosecute these American agents is only one instance of a growing problem.

The growing problem of breaking the laws of allied nations? Not quite.

>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.

One man’s “controversial” is another’s “illegal.” What would the solution be, one might wonder, to this problem:

>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.

This all seems to miss the point of the argument. Perhaps the conclusion ought to be that US officials should not prosecute the war on terror in a way that violates accepted international legal norms.