The Wrong Arm of the Law
WSJ.com - COMMENTARY
By DAVID B. RIVKIN JR. and LEE A. CASEY
December 9, 2005
For the last several weeks, much of the European political establishment and media have been engulfed in discussion of another set of alleged Bush administration misdeeds. This time, they're upset over reports that the CIA ran detention facilities in Europe for captured enemy combatants in the war on terror and transported terrorist prisoners from one country to another through European airports. This affair de CIA has prompted the EU and individual European countries to request publicly -- an extremely unusual diplomatic modus operandi among allies -- that the U.S. explain how its conduct, and presumably that of its European confederates, comports with international law.
Secretary of State Condoleezza Rice addressed the matter during her trip to Europe this week. In particular, she reaffirmed that the United States does not countenance or permit the torture or inhumane and degrading treatment of detainees, nor does the U.S. render individuals to other countries where they will be mistreated. However, the true significance of this imbroglio far transcends a mere diplomatic contretemps. Rather, it both demonstrates and reinforces the expanding gulf between American and European views of international law, and their differing perceptions of what constitutes acceptable norms of behavior. It is both ironic and sad that this gulf, combined with a growing European tendency to blast the United States whenever it is politically expedient, increasingly renders Europe an unreliable partner on all security matters.
In particular, the EU's reaction to the "secret CIA prisons" story has several important and unfortunate dimensions. Most obvious, of course, is the intemperate and undiplomatic framework chosen by European officials. Demanding explanations from the United States as if it were a small republic seeking entry to the EU comports ill with the debt Europe's democracies owe to America for the blood and treasure it expended on their behalf in the 20th century, as well as the realities of power in the 21st. Even if Brussels seriously believes that the U.S. has engaged in rogue conduct on European soil, it should have chosen discrete and tactful dialogue over public shouting. The prompt resort to threats, by EU Justice Commissioner Franco Frattini, against countries that may have cooperated with the U.S. was especially unfortunate, since it was widely understood to be directed at the more pro-American and relatively new EU members from Eastern and Central Europe.
In some sense, this would have been less objectionable if the EU had actually become more concerned with the moral dimensions of international relations, rather than realpolitik imperatives, across the board. However, Europe's moral outrage is extremely selective. For example, the EU has not taken a strong stance against members that trade with, or provide other forms of support to, unsavory or even outright rogue regimes in Cuba, Iran, Sudan and China. Significantly, even in light of credible reports that European companies, with an apparent wink and nod from their governments, violated binding international sanctions against Saddam Hussein's regime, similar threats were not made.
The mixture of EU outrage and angst is particularly amazing because the legal issues involved are, at worst, ambiguous and uncertain. When looked at in a more benign light -- a fitting one for dealing with a long-term friend and ally like the United States -- the issues do not support any sense of alarm. As far as "secret" prisons are concerned, despite the vaguely sinister aura with which such facilities have been cloaked in the European press, they are not proscribed by international law.
Although European human-rights law prohibits arbitrary detentions and guarantees criminal defendants elaborate due process protections, the laws of war clearly permit belligerent powers, such as the U.S. in this case, to detain and interrogate captured enemy combatants and to hold them incommunicado unless they qualify for POW status under the Geneva Conventions. How these two very different legal systems are to be reconciled remains an open question, especially where EU members are cooperating with America's more expansive view of what is permitted by the law of armed conflict. Treating the United States like a rogue state is not appropriate, even if the EU ultimately determines that its members must limit their cooperation to what they themselves could do with captured enemy combatants.
This is especially true with respect to the issue of transporting individuals captured on foreign territory and so-called "renditions." Such practices were not invented by the Bush administration. Moreover, as Secretary Rice recently noted, European states have also arranged the capture of fugitives on foreign territory or secured their "rendition." This includes the notorious Carlos the Jackal, one of the world's worst pre-September 11 terrorists, whose 1994 seizure in Sudan was upheld as lawful by the European Commission of Human Rights.
Additionally, international law does not forbid the transfer of individuals from one country to another, whether for criminal prosecution or interrogation, so long as assurances are obtained that the individual will not be tortured or treated inhumanely. There is no doubt that mistakes can occur in the rendition process, just like they occur in the criminal justice system. The potential for such mistakes, however, must be weighed against the likely catastrophic results of failing to obtain intelligence in the war on terror. In the murky world of intelligence, often described as the "wilderness of mirrors," intelligence agencies usually face an unpalatable choice of either "underconnecting the dots" and risking a September 11-type event, or aggressively prosecuting every terrorist lead and possibly detaining the wrong person.
Finally, it should be emphasized that the current controversy does not involve an alleged unilateral pre-emptive use of force by the United States. Rather, it is an aspect of the decades-long tradition of intelligence cooperation between the United States and its European allies. This cooperation is all the more important because the terrorists involved threaten both Europe and America. Continuing this cooperation is critical, especially because Europe functions as one of the most hospitable safe-havens for al Qaeda operatives -- endangering both the European and American populations. Yet, such cooperation is greatly threatened when U.S. intelligence agencies, having obtained appropriate clearances from their European counterparts, are then attacked by EU officials.
Indeed, such actions raise real issues about whether the nations of Europe can, in the future, remain effective trans-Atlantic partners. Henry Kissinger's famous lamentation -- asking who to call to speak with "Europe" when dealing with an international crisis -- becomes all the more accurate and relevant. Europe does not yet have a unified foreign policy, but neither can its individual states make guarantees to the United States if Brussels might later claim that European norms have been violated. Today, EU officials like Mr. Frattini appear to claim the power to construe the legal obligations of still nominally sovereign European countries, whether on matters arising under EU law or global treaties and custom. This means that, in the not-so-distant future, when presented with an effort to rally European support for another international initiative, the U.S. must not only obtain the cooperation of its allies, but of the EU's bureaucracy as well.
Upon reflection, if Mr. Kissinger were in office today, the people he should call in Europe would be the lawyers. Then again, perhaps he shouldn't bother.
Messrs. Rivkin and Casey are lawyers in Washington, D.C., who served in the White House and U.S. Justice Department under Presidents Reagan and George H.W. Bush. |
