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New CIA Director John Brennan addresses officials at the Agency's headquarters in Langley, Virginia. (Photo credit: CIA)
John Brennan brings heavy baggage to his new job as CIA Director -- legal as well as moral -- arguably making it risky for him to travel to more than 150 countries that are party to the United Nations Convention Against Torture.
It must be hard for Brennan to recognize that he cannot land in Europe, for example, without fear of being arrested and arraigned for kidnapping (also known as "extraordinary rendition") and torture (now antiseptically called "EIT" for "enhanced interrogation techniques," which, by the way, is a direct translation of verschaerfte Vernehmung right out of the Gestapo handbook).
Given Brennan's role as a senior CIA official during President George W. Bush's "dark side" days of waterboarding detainees, renditioning suspects to Mideast torture centers and making up intelligence to invade Iraq, Brennan's advisers are sure to remind him that he may be in as much jeopardy of being arrested as former Defense Secretary Donald Rumsfeld.
After leaving the Pentagon in late 2006, Rumsfeld had his own close call with Lady Justice. In October 2007, Rumsfeld was in an auditorium in Paris preparing to deliver a lecture when he learned that the Paris Prosecutor was mulling over what to do after being served a formal complaint against Rumsfeld for ordering and authorizing torture.
The charges against Rumsfeld were brought under the 1984 UN Convention Against Torture (CAT), ratified by both the United States and France. The complaint was brought in France under the concept of universal jurisdiction.
The criminal complaint stated that because the authorities in the United States and Iraq had failed to launch any independent investigation into the responsibility of Rumsfeld and other high-level U.S. officials for torture -- despite a documented paper trail and government memos implicating them in direct as well as command responsibility for torture -- it was the legal obligation of states such as France to take up the case. The complaint also noted that the U.S. had refused to join the International Criminal Court, which might have had more routine jurisdiction.
In an attempt to avoid a major diplomatic headache, U.S. embassy officers advised: "Run, Rummy, Run," before the Paris authorities decided what to do. Rumsfeld went out a side door, slipped into the embassy, and then got out of Dodge tout suite.
Rumsfeld's skedaddle from Paris thus spared him the possible humiliation that befell Gen. Augusto Pinochet, who had been head of Chile's military dictatorship from 1973 to 1990. While on a trip to the United Kingdom in 1998, Pinochet was arrested on a Spanish judicial warrant and was held under house arrest until 2000. The Spanish judge cited the same principle of universal jurisdiction. Pinochet was freed only after the intervention of high-powered friends, including former President George H.W. Bush and former Secretary of State Henry Kissinger.
That was only the first of several times when European judges applied that principle, declaring themselves competent to judge crimes committed by former heads of state, despite local amnesty laws. If former heads of state are vulnerable, it seemed to follow that former defense secretaries and other senior subordinates must be as well.
If the Rumsfeld precedent were not enough to make Brennan think twice about travel to Europe, he has surely been told of the criminal complaints lodged in Switzerland (also a CAT signatory) against George W. Bush in early 2011. When the former president learned of it, he decided not to take any chances and abruptly nixed longstanding plans to address a Jewish charity dinner in Geneva on Feb. 12, 2011.
The Goods on Brennan
Brennan's checkered past has been an open secret. On Dec. 5, 2005, after finishing a stint as acting director of the National Counterterrorism Center, Brennan told Margaret Warner of the NewsHour that "rendition" (also known as kidnapping) is "an absolutely vital tool ... producing intelligence that has saved lives." (In his Feb. 7, 2013, testimony to the Senate Intelligence Committee on his nomination to be CIA Director, Brennan backed off the "saved lives" claim, since the committee had just completed its own comprehensive study disproving it.)
On the NewsHour, Brennan described rendition as "the practice or the process of rendering somebody from one place to another place. It is moving them, and the U.S. Government will frequently facilitate that movement from one country to another."
Brennan's co-panelist, another former CIA operations officer, objected to turning prisoners over to foreign intelligence services, insisting that, "It would be far better if the United States retained control of that terror suspect and did the interrogation itself."
This drew a sharp rejoinder from Brennan: "Quite frankly I think it's rather arrogant to think that we are the best in every case in terms of eliciting information from terror suspects." Right. In the decades since World War II, many "friendly" intelligence services have acquired a lot more experience with verschaerfte Vernehmung than the CIA, though it often served as the tutor.
(The term verschaerfte Vernehmung was not only coined by the Nazis, but the techniques were indistinguishable from those used during the presidency of George W. Bush, according to a 2007 article in the Atlantic. The major difference, so far, is that after WWII the torturers were punished as war crimes, with the penalty often death by hanging.)