Rendition Blowback

BBC and AP, among others, are reporting new EU concerns and the possibility of EU sanctions applied to members who host the US torture gulag. But this is only a preliminary move. A very real possibility exists that given the right case -- what if a subject released from a cell in, say, Turkey, can show that he was moved through Ireland or Germany or elsewhere in the EU? -- EU courts may well claim responsibility for investigation, punishment, and restitution.

The tricky thing is that there isn't any clear precedent. Moreover, at the level above national courts those international courts that do claim responsibility for such violations of basic human rights often don't function very well and remain, at best, tenuously connected to national court systems. But the legal ambiguities are less an obstacle than they may seem.

I hasten to point out, I'm not a lawyer. For a legal perspective Jane Mayer and Elizabeth Holtzmann have written superb summaries of the history of the rendition effort and some of the legal problems it presents. Phillipe Sands, another lawyer, has argued that even the staff who draft pro-torture and rendition policies may face a Pinochet-like seizure by foreign courts when they travel abroad. Indeed, there's a lot being written recently on these questions, much of it excellent stuff.

From a purely political perspective, however, it's obvious, at least to me, that no European government can be seen to condone or provide covert support for a torture gulag. A double standard for the US is today out of the question. And given the Europeans' psychological investment in such things as the International Criminal Tribunal for the Former Yugoslavia (which has spent a billion dollars, a good proxy for how important many people believe it is), it's impossible to imagine the Europeans now ignoring or covering up the evidence in front of them.

I doubt US diplomats will be deft enough to craft a satisfactory explanation, and I predict big trouble ahead for US officials as this issue grinds its way through Europe's political determination to find a working framework for international criminal law.