Among the hundreds of diplomatic cables released by Wikileaks in recent weeks were a number pertaining to extraordinary rendition—the practice of effectively kinapping a suspected terrorist in one country and transporting him to another, usually Arab, nation for interrogation that almost invariably invovles torture. Most of the time, renditions happen quietly; CIA operatives swoop in and out and no one's the wiser. Then came the February 2003 kidnapping of a cleric named Abu Omar in Milan, Italy. The operation was bungled (the American operatives used unencrypted, trackable cell phones, for starters), and, in a major embarassment to the US, the 23 CIA agents involved were eventually tried by an Italian court. In 2009, they were convicted in absentia of violating Italian law. (Peter Bergen wrote about the case, and interviewed Abu Omar himself, for the March/April 2008 issue of Mother Jones.) Recently, I spoke to Steve Hendricks, a freelance journalist and author whose most recent work is the just-released A Kidnapping in Milan: The CIA on Trial, about Abu Omar, renditions, and the impact of the Wikileaks disclosures. Here's an edited transcript of our conversation. (In some cases, I've expanded my original questions to provide additional context):
Mother Jones: Wikileaks recently released a diplomatic cable detailing a conversation between Rolf Nikel, the German Deputy National Security Adviser, and John Koenig, the deputy chief of the US embassy in Berlin. In the discussion, Koenig pressured Nikel to tell his bosses not to prosecute the CIA personnel involved in the rendition of Khaled El-Masri, a German citizen who was kidnapped, flown to Afghanistan, and allegedly beaten, sodomized, and repeatedly interrogated before the US realized it had the wrong guy. According to the cable, part of the pressure that was put on the Germans had to do with the kidnapping and subsequent trial you write about in your book. Can you tell us a little more about that?
Steve Hendricks: The Deputy Chief of Mission who had that conversation in Germany with his counterpart there referenced "repercussions" in the US-Italian relationship [in the wake of the decision to prosecute the CIA officers involved in the Abu Omar case.] That's an interesting phrase because there almost certianly weren't any repercussions. Italy was already doing what the White House wanted. The governments of [Silvio] Berlusconi, [Romano] Prodi, and Berlusconi again all got in line, doing everything they could to derail prosecution. Their problem was that the magistracy [that was prosecuting the CIA officers] was independent. About all that Rome could do was to file challenges in court making the same arguments over there that Obama and Bush made over here: That we can't talk about these things because doing so would reveal state secrets.
MJ: So the US successfully pressured the Italian government to try to interfere with the Milan prosecution?
SH: I don't think they needed any nudge from the White House to get them to do that. Certainly, the Berlusconi government was one of the biggest backers of the Bush administration's [counterterrorism policies]. It's extremely unlikely that we're going to learn that there was any real arm-twisting going on there.
MJ: So does that mean that the idea in the US (at least on the left) that Europeans oppose Bush-style counterterrorism policies is wrong, and that civil libertarians' hopes that Europeans may force accountability for torture are misguided?
SH: It's a real mix. We're talking about a wide range of both public and elite opinion. Germany probably falls right in the middle of that map. They're not dying to piss off the US, but neither are they as slovenly on their knees in the way the Italian government was. The other piece of it as far as accountability for torture and so on is that Europe as a whole seems to understand that we're part of an international community, whether we like it or not. They seem to have a greater respect for international conventions—they're aware of the [UN] Convention Against Torture, for example, and there's a lot more fallout over there for disobeying international conventions.
MJ: Does the constitutional independence of top judicial and prosecutorial officials in European countries like Germany, Italy, and Spain make a difference when it comes to prosecuting these sorts of cases?
SH: Well, in the case of Germany what we know is that the judge in Munich issued warrants. That was independent of the central government. But it was the choice of central government whether to enforce those warrants. There were things that they could actually do and had a choice about whether they would or would not do it. [Ed. note: The government ultimately decided to enforce the warrants, but did not make a formal request for the extradition of the agents involved after an initial, informal request was denied.] I imagine we will be hearing in the future about what exactly did happen after that pressure was put on—what the wrangling was, and [how the government decided] "We have to ignore the Americans."
[In Spain and Italy], their magistrates...[have] independence that we completely lack over here. Federal prosecutors all work for the Justice Department. They work at the whim of the Attorney General and the President. That's why we don't have a single prosecutor here who would do what [magistrates in Italy and Spain did in charging CIA personnel with crimes].
MJ: What about US attorneys like Patrick Fitzgerald and John Durham, who are investigating issues related to interrogation and detention and are generally referred to as "independent"?
SH: They are independent within a narrow range. [Attorney General] Eric Holder isn't looking over the shoulder of every prosecutor in the country. But they know what they can and cannot do. It's almost like the censorship of the newsroom: you know certain topics are completely out of bounds. Every prosecutor is going to know they can't bring a prosecution against Bush or Obama—or for extraordinary renditions, even though those are violations of the Convention Against Torture, which is US law. They'd be fired if they did that. On truly deep foundational levels, are we going to accuse our president of committing crimes against humanity? No. They don't have that kind of independence.
MJ: So how much power do European magistrates have, really?
SH: International law increasingly reflects the doctrine of universal jurisdiction. If someone has committed a truly heinous crime, a crime against humanity, and the country where it was committed is not prosecuting the person, than courts elsewhere arguably have jurisdiction to go after these people. That's how [famed Spanish magistrate Baltasar] Garzon went after [former Chilean dictator Augusto] Pinochet. It's a doctrine to be used sparingly. But the case of the US since 9/11 is exactly what this doctrine contemplated: crimes that have largely gone unpunished.
MJ: But will we ever see another prosecution like the Milan trial?
SH: For a while, there were rumors coming out of Germany that German prosecutors were about to bring charges against the people in Germany who were involved in the rendition of Abu Omar. It's long been known that the Germans were looking into who was involved there. But it would appear that the CIA has learned a lot of lessons, or the Obama CIA has learned many lessons from the kidnapping in Milan and other fiascos. Although Obama insists he will continue to use extraordinary renditions, we haven't heard about any of them. That means they're either carrying out fewer, they're carrying them out with greater discretion, or both. If that's the case, then we're probably not going to have any more Kidnapping in Milan-type fiascos blowing up anytime soon. After all, we heard about almost none of the Clinton-era renditions, and he did several dozen.
MJ: Why was the Milan operation so bungled? Even if you think extraordinary renditions are a good thing, I assume you'd want to make sure they were done quietly and competently, no?
SH: The main reason, I think, is just that [in the years immediately following the September 11th attacks, the Bush administration] demanded so much of the CIA in so little time, and the CIA was already so broken an agency, that to ask them to do the minimal level of competence was a lot on any given day. In Legacy of Ashes [an award-winning history of the agency], Tim Weiner essentially says that in the entire history of the agency, there's barely a major operation that they carried off with competence. That's true. If you take an agency this disfunctional and say, "We want you to do ten times what you were doing," you're going to have problems. They didn't have enough planes, so they had to rent "torture taxis." They didn't have enough heavies to do the actual grunt work of renditions, so they had to hire contractors. It's amazing that more of these renditions didn't blow up in our face like this.
If you're doing renditions in smaller numbers, and not doing it willy-nilly, the third-world dictatorships were usually happy to get these guys, who are usually their home-grown extremist types. But when you start doing it with this cowboy attitude and semi-publicly, and making it very clear to all the terrorists that people are being sent to Egypt or whatever, that's not exactly helpful to Egypt and Morrocco and Syria and so on. So it's not shocking to me that some of this information began to leak out.
MJ: Are there any obstacles to a future president reinstituting an aggressive, semi-public, high-volume rendition program? Or other parts of the Bush-era interrogation and detention regime?
SH: There aren't any barriers, and that's why people have been clamoring for prosecutions. Without punishment or huge public censure, there's nothing to stop it from happening again. The only thing that has really been done of any substance is the executive order [signed by President Barack Obama banning torture.] But of course that was already US law, and President Palin could countermand [the executive order] in the stroke of a pen. Of course, one of the great overlooked thing about why Obama isn't going after Bush is that a lot of [Bush's] sins started with Clinton... [By prosecuting top Bush administration officials for torture, Obama] would be opening Clinton up for prosecution—and he'd be opening himself up, too. Clinton originating this stuff is, I think, a big piece of why we're not getting any action on it today.
MJ: How did this all come about?
SH: It came about in 1993, if we can believe [former Clinton administration counterterrorism adviser] Richard Clarke. [After the first attacks on the World Trade Center], he decided it was too cumbersome to snatch suspected terrorists and bring them back to the US for trial—and Clinton and the rest of the national security staff agreed. We don't know who the first person [to be rendered] was, but we know that by August 1995 they succeeded in rendering a guy named Abu Talal [al-Qasimi] from Croatia to Egypt, and that was such a success that over the remaining five years they rendered about ten people a year. (Read more: Rendition By The Numbers.)
The fact that this program went so smoothly, and that what little got known about it in public got so little condemnation was a big green light after 9/11, when Bush and the CIA wanted to amp this up. They thought it'd be okay, and they weren't entirely right but they were broadly right: they knew they could get away with it. And Clinton having set it up was a big piece of that.
Steve Hendricks' A Kidnapping In Milan: The CIA On Trial was released on October 11.