Universal jurisdiction and the new Italian job

The Wall Street Journal (subscription only column) rips Italian prosecutor Armando Spataro and the Italian government for Spataro's indictment of 25 CIA agents for the rendition of terrorist Abu Omar in 2003. Spataro indicted the agents BY NAME, thereby revealing their covert identities and neutralizing 25 US assets in Europe. In other words, this is 25 times worse than what the Valerie Plame scandal would have been if she were actually a covert agent.

This is a tremendous danger for intelligence gathering and anti-terror cooperation. As the WSJ noted, "No one seriously claims [ ] that the CIA agents were in Italy without the explicit knowledge and participation of Italy's security services. This is the crucial point -- and explains why the indictments are a hostile act against the U.S. By long-established international legal practice, the official agents of one country operating in another with that state's permission are immune from prosecution."

Spataro's actions are part of a larger problem -- asserting universal jurisdiction over the agents of a foreign nation. During the Cold War, the US did not indict Soviet spies who were Russian nationals. Instead, it captured them and sent them to the USSR. The Bush Administration should more strenuously denounce this overreach (such as its indication that it would move NATO headquarters out of Brussels in response to Belgian indictments against Donald Rumsfeld, et al.; the Belgians changed their universal jurisdiction law shortly thereafter). And there are larger implications, as the WSJ explains:

European politicians are more at fault here than any prosecutor. Since the 9/11 attacks in the U.S., many European leaders have been playing a double game, working with the U.S. to root out terrorist plots on the sly -- and saving countless lives -- while publicly condemning "American methods" in rhetoric that has fed rising anti-Americanism. It doesn't help that many Europeans embrace the preposterous legal notion of "universal jurisdiction," the idea that an ambitious prosecutor can indict and try anyone for an alleged crime committed anywhere in the world.

This is the climate in which, for example, a German court this month issued arrest warrants for 13 CIA agents allegedly involved in transferring a German-Lebanese terrorist suspect, Khaled al-Masri, to Afghanistan for questioning. It made no difference that Mr. al-Masri had been arrested in Macedonia. Also in Germany, prosecutors are considering whether to bring war-crimes charges against former Defense Secretary Donald Rumsfeld, Attorney General Alberto Gonzales, former CIA Director George Tenet and other senior civilian and military officials. Mr. Rumsfeld, Colin Powell and Dick Cheney were targeted by Belgian courts until the law there was changed. And so on.

European officials need to understand the risks they're running if they keep this up. Italy and the U.S. are NATO partners, but such an alliance is meaningless if "allies" make a habit of prosecuting each other for cooperating against a common threat. Italy's political grandstanding is endangering NATO, as well as the lives of millions on both sides of the Atlantic.