Kidnappings and torture abroad

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Suppose an American citizen visits St. Petersburg for the aesthetic thrills of the Hermitage. The American is kidnapped by Russian President Vladimir Putin's version of the KGB for secret transport, indefinite detention, interrogation, and torture in Belarus. Mr. Putin explains that the visitor was suspected of providing material assistance to Chechen terrorists; that Russia conceives of the entire world as a battlefield against them because they have threatened to kill Russians anywhere; and, that the kidnapping, detention, interrogation and torture was merciful because Russia could have killed the American on the St. Petersburg battlefield for assisting the Chechen enemy.

The American Embassy in Moscow protests that Russia and Belarus have violated international law. The ambassador demands that the American detainee be either tried for an alleged offense in a judicial proceeding that satisfies due process or released and that the Russian and Belarus kidnappers and torturers be criminally prosecuted.

President Putin retorts that he has simply followed the instruction of United States. The Russian president points out that President Bush had earlier dispatched a team of Central Intelligence Agency (CIA) operatives to Italy to kidnap a radical Egyptian cleric, Abu Omar; and, to transport him to Egypt, where he was detained, interrogated and tortured. The CIA operatives have been charged with criminality by an Italian prosecutor, but Mr. Bush has defended Abu Omar's kidnapping, detention and torture under the umbrella of "extraordinary rendition."

Mr. Putin adds that President Bush likewise sanctioned the CIA's kidnapping, detention and abuse of a German citizen of Lebanese descent, Khaled al-Masri. He was plucked from the Serbian-Macedonian border and dispatched to Kabul for detention and coercive interrogation. A German prosecutor has charged 13 CIA operatives with criminal misconduct. As in the Italian case, President Bush has defended the CIA's "extraordinary rendition."

President Putin also underscores that Mr. Bush has proclaimed the entire world is a battlefield against global terrorism, a principle that justifies military tactics, including lethal force, against suspected terrorists wherever they are detected, including civilian establishments.

The American ambassador challenges Mr. Putin's reasoning. In contrast to other world leaders, the ambassador harrumphs, President Bush is infallible on matters of national security and terrorism. He never makes a mistake. Moreover, while all nations are equal, some nations are more equal than others. And by consulting the heavens Mr. Putin would learn that the United States is more equal than Russia in extraordinary rendition or fighting global terrorists. "What's the good of being the planet's sole superpower if you can't make up the rules as you go along?" the ambassador fulminates.

President Putin is unpersuaded. He avers that Russia will not play by Queensberry rules in international affairs while the United States plays by the law of the jungle. He amplifies that American hypocrisy has become its signature, which fuels resentment and anger abroad. President Bush, for example, supports carving out an independent Kosovo from Serbia, but he opposes independence for the Abkhazia or South Ossessia regions of Georgia. President Bush also allies with nations for national security purposes despite egregious human-rights records, for example, Saudi Arabia and Egypt. But when other nations imitate the United States -- as with Russia's ties with Iran or China's with Myanmar -- the United States complains.

The American visitor thus stays in a Belarus dungeon under the kidnapping, extraordinary rendition, and torture precedents of President Bush.

Congress should end this hazard. It should generally prohibit spending any funds of the United States outside a zone of active hostilities to kidnap or torture any citizen or noncitizen. An exception should be made if the purpose of the kidnapping is to prosecute the detainee before a U.S. tribunal according to law; and, the country in which the kidnapping occurred had refused to cooperate in securing the accused for trial by extradition or otherwise. The classic case for the exception is Adolph Eichmann. He was kidnapped by Israel from Argentina in 1960, and prosecuted before an Israeli tribunal for complicity in the Holocaust. At the time of the kidnapping, Argentina was notorious for harboring ex-Nazis.

All history teaches that lawlessness is a double-edged sword. The exhortation of Sir Thomas More in "A Man for All Seasons" is convincing: "Cut a great road through the law to get after the Devil? ... And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws being all flat? ... The country's planted thick with laws from coast to coast -- Man's laws, not God's -- and if you cut them down... d'you really think you could stand upright in the winds that would blow them? ... Yes, I'd give the Devil benefit of law for my own's safety sake."

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.