It is gratifying to read the analyses of how the overseas travel of administration attorneys or leaders could, in the future, expose them to prosecution in foreign courts for violations of national laws that give effect to the Geneva Convention, and incidentally cover related activities such as special rendition.

[Note: read on after the excerpts from the news articles. More fun below.]

Many attorneys who have been discussing this possibility online have been relying on the hypothesis that no U.S. government employees have been indicted so far during the G.W. Bush administration for such crimes allegedly committed overseas.

There is, of course, this case from Italy:

CIA agents face kidnap trial in Milan

• This article was first published on guardian.co.uk on Friday February 16 2007. It was last updated at 12:55 on February 16 2007.

A passport photo of Osama Moustafa Hassan Nasr in the mid-1990s. Photograph: AP

An Italian judge today ordered 26 Americans, almost all CIA agents, to stand trial on charges of kidnapping a terrorism suspect in 2003 and flying him to Egypt, where he says he was tortured.

The Milan judge set a trial date for June 8. Prosecutors allege that five Italian intelligence officials worked with the Americans to abduct Osama Moustafa Hassan Nasr from a Milan street in February 2003.

The Americans will almost certainly be tried in absentia.

Among those indicted was the former Italian chief of military intelligence, Nicolo Pollari. Mr Pollari, the only defendant who appeared during the preliminary hearing, insisted that Italian intelligence played no role in the alleged abduction.

He told the judge he was unable to defend himself properly because documents clarifying his position had been excluded from the proceedings because they contain state secrets.

After his capture, Mr Nasr was allegedly transferred by vehicle to the Aviano air force base near Venice, then by air to the Ramstein air base in Germany, and then on to Egypt, where critics say he was tortured.

All but one of the American suspects have been identified as CIA agents, including the former station chiefs in Rome and Milan. The other is a US Air Force officer stationed at the time at Aviano.

The European parliament this week approved a report accusing Britain, Germany, Italy and other EU countries of turning a blind eye to CIA flights carrying terrorist suspects in Europe.

In its report, the parliament's committee on CIA activities in Europe said more than 1,200 CIA-operated flights had used European airspace between 2001 and 2005.

It accused some European countries of turning a blind eye to the flights, a number of which were allegedly used to illegally transport terrorism suspects.

The US intelligence agency may also have operated secret jails for terrorism suspects at US military bases around Europe, according to the report. Several member states were criticised for a "lack of cooperation" and the committee accused Britain, Austria, Italy, Poland and Portugal of showing an obstructive attitude.

Criticism of Britain for allegedly not cooperating with the parliamentary investigation was removed from the report at the insistence of Labour MEPs and the final wording was also softer on the German government. But objections to testimony by the EU foreign policy chief, Javier Solana, remained, with the parliament accusing him of making "omissions" in his statement to the committee.

The Bush administration acknowledges the secret transfer of suspects to foreign countries, but denies torturing them or handing them to countries that did.

A Munich court last month issued arrest warrants for 13 suspected CIA agents accused of kidnapping Khaled el-Masri, a German national of Lebanese descent.

Mr Masri, who spent five months in an Afghan jail where he said he was tortured, wants to sue the CIA.

Last year, the German parliament set up a special committee to investigate the alleged "renditions" of Mr Masri and of Murat Kurnaz, a German-born Turk. Mr Kurnaz spent nearly five years in Guantánamo Bay where he said he was tortured and abused.

At the time, legal observers commented that the statute of limitations on those alleged crimes likely would expire before any the Italian case moved forward, as long as those CIA employees stayed out of Dodge.

Staying out of the clutches of the somewhat troubled Italian court system likely will be easier than evading their more efficient and humourless counterparts in the Federal Republic of Germany:

(From Speigel Online, 6/25/2007)

RENDITIONS SCANDAL CIA Arrest Warrants Strain US-German Ties

By John Goetz, Marcel Rosenbach and Holger Stark

The arrest warrants German authorities have issued against 10 CIA agents have strained German-American relations. Now, prosecutors in Munich want the agents extradited to Germany so they can stand trial for their alleged roles in the illegal kidnapping of terror suspects.

REUTERS

A CIA jet takes off at Palma de Mallorca.

The 11-story apartment complex on Washington Boulevard in Arlington, Virginia, couldn't be in a more pleasant location. The buildings offer distant views across the Potomac River, all the way to the Lincoln

I have to ask myself: do the Italian courts recognize the U.S. legal principle that the means of bringing a defendant to justice does not bear on the prospects for that person's conviction? Of course, the shooter who killed CIA employees in front of that agency's headquarters and subsequently was brought before a U.S. court by special rendition, convicted and executed was a notable example of that procedure.

I remember discussing the risks that U.S. political decision makers, including Defense Secretary Donald Rumsfeld, then-Attorney General Alberto Gonzalez and others who could be charged with conspiracy, or "joint enterprise," in the British legal term, to establish an ongoing torture enterprise with Members of Congress some three years ago.

The representatives had just concluded a hearing during which the chief uniformed legal officers--i.e., the attorney/soldiers who implement the Universal Code of Military Justice (UCMJ)--attempted to explain the adminstration's torture policy to the House Judiciary Committee.

Those officials, including the top leader of the Judge Advocates General, became tongue-tied when the Representatives asked them to square the administration's policy with longstanding military law and practice.

Naturally, the military legal specialists in the room likely knew about the multiple cases in which U.S. and foreign military personnel have been convicted in U.S. courts of torture, specifically including "the water cure," an earlier term for waterboarding.

Unfortunately for the JAG officers at the witness table, one of the Representatives on the Judiciary Committee was himself a Reserve JAG. This member of Congress, a Republican, tore the officers at the witness table a few new cloacas, one might say in courtroom Latin.

The point I made to some of the committee members during informal discussions after that hearing still stands: be careful, all those torture policy leaders and principle implementers, when you travel to any NATO country (for openers).

One interesting aspect of all this has been the stunning ignorance about the principles and details of the UCMJ that the senior legal officers of the Justice Department, and the civilian lawyers who worked as political appointees in the White House and the Pentagon in the period after the 9/11 attacks. Do any contributors to this discussion detect any understanding of the UCMJ, or references to its provisions or precedents, in the shoddy, sadistic and evil legal reasoning of Messrs Feith, Gonzalez, Yoo et alia?

It is also notable that some uniformed senior judge advocates general were present at the creation of the Bush administration's torture policies and practices. The Navy's JAG comes to mind. That officer explained the legal and practical reasoning that lies behind the various torture prohibitions in U.S. military law to Feith and others. After a few months, that military attorney learned to his horror that the civilian administration lawyers who had listened carefully to his explanations and read his straightforward memos on the topic, and apparantly absorbed the reasons why the Bush torture policies were driving the military into a chasm, went on to maneuver secretly to continue building the torture infrastructure.

Notably, all the longtime NATO countries have for many years embedded Common Article Three in their criminal laws.

And the newer NATO members, like Poland, followed suit quickly during the preparations for joining the military alliance. Oh, yes, let's remind ourselves, that's not some military legal talking shop but a full-scale alliance.

NATO members came to our aid in our hour of need following terrorist attacks and I can only hope that they will come to our aid in punishing these brazen criminals.

Here's the second, much briefer point: during a period when the executive branch has arrogated to itself the obviously extra-Constitutional, and for all practical purposes tyrannical, power to append "signing statements" to enacted Public Laws.

These statements purport to establish that the executive branch need only implement those provisions of those laws that the White House finds convenient, why is anyone surprised by the torture violations?

An eerie aspect of the signing statements is that they limit the to hundreds of thousands of Americans' civil rights flows from their lack of any representation in the Senate, and full representation in the House. Of course, these electors are the voters in the District of Columbia and other areas.

If the national legislature is simply a vestigial advisory organization, so what if I don't have the right to vote for a Senator?

At least I didn't get drafted in 1970. I can only hope that my son doesn't get drafted.

eom

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