Unfortunately, I don’t have time to say anything substantive about this now, but AP reports on the conviction of twenty-three CIA agents in absentia in Italy in a trial over an extraordinary rendition. The AP story is unusually detailed for a wire story and bears reading. I am in the middle of something and can’t stop to comment on the substance.
However, I’ll make again the side observation that I have made before that this is the next step in what I have described here and on the OJ blog as “gaming Spain.” It has been remarked by many observers how the effect of foreign prosecutions or the threat of foreign prosecutions is a backdoor way of punishing administration lawyers and others, such as these CIA agents, for various things that can’t be or are not pursued in American courts.
Less remarked, however, but I predict is the wave of the future, is how these kinds of backdoor prosecutions will, over time, turn out to track Democratic and Republican administrations differently. Part of this is driven, in my view, simply by a a shared ideology among actors within the Obama administration with the ability to set the agenda on these matters – given the relatively little interest that Republican members of Congress show. Your mileage may vary on how to interpret the administration’s polite regret and disappointment over the Italian verdicts, for example, and I suppose it is possible that the Bush administration would have shown no greater willingness to use real muscle to make its displeasure felt.
My personal view is that the administration, or at least key players on these matters, however, have concluded that it’s perfectly okay given that the final result is not actual jail for the US persons (I’m lumping together the Italian prosecutions, threatened Spanish actions, and other places to sum up policy) but instead simply an inability to travel abroad. On reason I believe this is what key players in the Obama administration think is simply because I’ve heard it so often over the last three or four years. I have heard it said in many conversations among international law academics, advocates, NGO activists, and so on, that this is a good way both to appropriately punish, for example, John Yoo – and to deter future government lawyers or actors, many of whom do contemplate active professional and personal lives outside of government that might involve travel abroad. I don’t doubt that this is a reasonably widely held view, for example, among professional and academic readers of the international law blog Opinio Juris, where I also blog. Heck, it wouldn’t surprise me if it had been urged as its own policy in some paper somewhere on SSRN, although I haven’t actually seen anything like this. It’s not an accusation of bad faith; it’s just a fairly pedestrian trope in this particular community.
But whether the psychological motivations are as I believe they are or not – whether I’m right or wrong about what the increasingly ‘visible and noisy college of international law’ thinks is a pretty appealing backdoor way of punishing Yoo, et al. – the biggest reason I think this is the wave of the future is the strategic logic of the situation. Filling out what I said above, it seems to me likely that these prosecutions, threatened or actual, will target Republicans over time and not Democrats, even when the behavior is quite obviously the same. Targeted killing using Predators seems to me very, very likely – just as soon as there is a Republican in the White House. Meanwhile, nothing actually happens, but the legal and soft-law groundwork is put in place so that upon a change of administration, somehow things change, at least as far as the legal characterizations and then later how prosecutors like Spain’s Baltasar Garzon see them.
Why one party and not the other, if based on anything other than claimed psychological affinities? If the advocates, NGOs, activists, European prosecutors, UN folks, etc., were to go after both Democrats and Republicans – for, after all, the same behavior – then Democrats targeted from the Obama administration would hang together with Republicans of President Ummm. A threat against American behavior as such, behavior undertaken by both administrations, would force the Americans to hang together as Americans. So if you are the international law community, and even if you would in principle like to go equally after everyone engaging in the same behavior, you get 0%. That’s so whether or not you have the same appetite for going after people in any administration.
If, on the other hand, you go only after Republicans, you can reasonably count on Democrats, if they know they are not going to be targeted, to hang with you in going after Republicans. So you don’t get 100%, but you don’t automatically get zero, either, and you might get 50%. That seems to me a reasonably rational strategic argument, at least from the foreign standpoint. (There’s a further question about why Democrats would go along with this ‘international law community’ rather than siding with their fellow Americans that does involve extra-strategic preferences.)
I also predict that the behaviors at issue in targeted killing with Predators will suddenly turn out to have mysterious, hithertofor unidentified legal characteristics that make it one kind of thing when it is the Obama administration, and something else – and suddenly legally liable – when it is the next Republican administration. And that some of those arguing that it was one thing under Obama and another under the next administration will be the current administration’s transnationalist lawyers, out of office and back in the academy or think tanks or NGOs.
I happen to think it is a good thing, however, if Americans hang together as Americans when it comes to successive presidential administrations – national politics and the water’s edge, in that apparently old-fashioned and out-of-fashion and un-cosmopolitan formulation. So unsurprisingly I think it would be a good thing if Republicans and, even better, some Democrats would take account of this emerging path of international soft-law, and perhaps start taking steps to stop it. I’m not holding my breath.
(After a couple of annoying/uncivil emails on this, I decided to delete and close the thread as well. Apologies to any non-abusive commenters whose comments I deleted.)