The CIA’s War On Terrorism – Another Source of ATS Lawsuits?
As the fighting over the U.S. military’s conduct of the war on terrorism, particularly its conduct in Guantanamo Bay, may be heading toward some resolution as a result of new legislation, attention is now turning to the CIA’s activities in the war on terrorism.
The CIA certainly seems busy. Recently, an alleged Al Qaeda leader was mysteriously blown up in Pakistan, perhaps as a result of a CIA missile from an unmanned Predator aircraft. Meanwhile, the Washington Post has this long report on the CIA’s system of “extraordinary rendition” and its alleged network of detention centers for suspected Al Qaeda members. The Post has also has this report on the CIA’s alleged abduction of a radical Islamic cleric in Italy (misleading Italian authorities in the process). Moreover, Secretary Rice is being hounded in Europe with questions about CIA use of German airfields for its rendition policy and its “secret” prisons.
Intelligence activities are not, as far as I’m aware, generally regulated under formal international law e.g. through some international treaty. Of course, certain – in fact, many- activities engaged in by intelligence agencies plainly violate general principles of international law. Taking satellite photos, intercepting wireless communications, and old-fashioned human spying often violate another country’s sovereignty. More seriously, intelligence agencies sometimes engage in targeted assassinations, abductions, and very severe interrogation techniques (tantamount to torture).
In the old days, the most important check on intelligence agencies like the CIA (other than domestic oversight) was the threat of retribution against their own agents from the other side. The CIA and KGB had a tacit agreement not to kill or torture agents they caught from the other side. I somehow doubt the CIA has any similar deal with Al Qaeda – as a result, all gloves are off.
But the rise of the Alien Tort Statute opens another avenue for checking the CIA. Those mistreated by the CIA can have their day in U.S. court and, for what is probably the first time, we may see CIA policies directly challenged under international law standards. For better or for worse, I foresee the CIA becoming the new defendant du jour in the ongoing litigation over the conduct of the war on terrorism.