A Mixed Week on Accountability for Renditions
This week saw two contrasting results emerging from courts in the United States and Italy regarding extraordinary rendition. In the United States, the case of Maher Arar (right) was once more rejected by the US Court of Appeals for the Second Circuit. In Italy, however, 23 CIA agents were convicted in absentia in relation to their involvement in the ‘snatching’ of Egyptian Osama Moustafa Hassan Nasr from the streets of Milan in 2003. The contrast in the courts’ approaches in these cases could hardly be more pronounced.
In Arar (opinion available here), the Court refused to allow Canadian national Maher Arar to sue the United States for sending him to Syria where he was tortured because Congress had never expressly authorised such suits. Arar therefore failed to create what is known as a Bivens action, i.e. an action for breach of constitutional rights, in relation to extraordinary rendition. This was because, the Court held, the creation of a Bivens action in this respect would have implications of foreign policy and security activity. Congress could, of course, create such an action by statute but the Court would not do so itself. There is little doubt that this will be appealed.
In Italy, in contrast, Judge Oscar Magi of the Fourth Chamber of the Court of Milan appeared to have little hesitation in convicting the 23 Americans for their involvement in rendition although there were a number of others who were not convicted as a result of diplomatic immunity and the withholding of evidence on national security grounds. This case is sure to be appealed, and no sentences are executed in Italy until all appeals are completed, but in any case the agents are not in custody. The US State Department has expressed its disappointment at the verdict.
What is striking to me is the contrast in the approach of the courts in both of these cases. Although the Italian decision is available only in Italian and I am therefore relying on newspaper reports, it would appear that the judge was not swayed by arguments relating to the institutional appropriateness of judicial decision-making on matters of this nature. These kinds of arguments are often made in order to try to insulate so-called ‘security’ or ‘foreign affairs’ activity from judicial oversight and scrutiny, the claim being that deciding on such matters could have foreign affairs implications and is therefore inappropriate as foreign affairs are an executive function. Certainly these kinds of arguments seem to have formed part of the decision-making in the Second Circuit’s decision in Arar.
Where these kinds of arguments are acceded to there is the danger that executive action becomes absolutely unimpeachable through judicial means and maintenance and re-establishment of the rule of law is therefore reliant on parliamentary (or so-called ‘democratic’) accountability mechanisms which, as I argue here in contradistinction to my co-author Fergal Davis, I am simply not convinced can work. As a fan of judicial muscularity in relation to security-motivated counter-terrorist action I would certainly favour the approach of the Italian court to that of the 2nd Circuit.