A Comment on lawfareblog.com's "Jenks on Italy, the Abu Omar Rendition Prosecution, and Violation of the NATO SOFA"

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Over at lawfareblog.com there is a guest posting entitled above (http://www.lawfareblog.com/2012/09/jenks-on-italy-the-abu-omar-rendition-prosecution-and-violation-of-the-nato-sofa/) to which I sent a comment but which lawfareblog.com has declined to post.  So here it is here.

I read Jencks original article which noted that Colonel Romano had his own counsel in the Italian trial court proceedings. I hope the US government paid for his lawyer as he was doing the bidding of his superiors – though I suspect his formal hierarchy made sure their role in any order  was obscured by possibly being flowed through the CIA or other government agency to Colonel Romano.  In any event, as Jencks recognized in his original article, Colonel Romano had notice and an opportunity to be heard at least at the trial court level.

Jencks minimizes Colonel Romano’s role as the security chief at Aviano.  It is clear that a plane flying in and out of there was crucial to the CIA plan and Colonel Romano’s permitting the windowless van to enter is a key part of making the rendition to Egypt and torture.

He criticizes the Italian court’s formalism as to article 605 of illegal detention, but formalism of that kind is one of the hallmarks of their courts.  This formalism was certainly maddening sometimes in my years in international commercial arbitration but it did not surprise me that this would form part of the Italian court’s approach.

As to the official duties determination of the sending state being conclusive, Jencks recognized in his article that the determination was in the SOFA language where concurrent jurisdiction of both states had to be worked through.

The official duties language was left undefined by both sovereigns.  The conclusiveness of the sending state’s determination I think ran up against the nature of the “official duties” trying to be covered. It seems the Italian judiciary was unwilling to allow an illegal detention and ultimate torture fall within the conclusive determination practice. Maybe because they are sensitive to the hierarchy of norms that make torture a peremptory norm – one more equal than others.

One of the parts of the Vienna Convention on the Law of Treaties is that a treaty obligation cannot prevail over an erga omnes obligation – the prohibition against torture certainly fitting in there.

I do decry Colonel Romano being made to be the fall guy by both the United States and Italy for an act ordered at the highest levels of the US executive and helped by high level Italian intelligence. But, given the US’s demonstrated unwillingness in the Bush and Obama administration’s to hold higher level Americans accountable for the renditions to torture, the Italian prosecutor and courts’ actions should not be decried. Rather, the US might start the process of going up his chain of command to prosecute higher ups. Maybe, as part of a political accomodation between sovereigns,  some form of amnesty might be given Colonel Romano by the Italian state if the US was to demonstrate that kind of commitment to high-level accountability.

For now, Romano is a fall guy because he followed the orders and he has been left to twist in the wind by both the Bush and Obama Administrations.  His risks on his personal assets and constraints on his ability to travel come directly from his going along with this project. He might consider he needs to give testimony on this to the Justice Department and/or DoD Inspector General so that the official duties space can be clarified for him and other soldiers who are being made to carry very dirty water for the intelligence types and the higher ups.

In that sense, he is just like those guards at Abu Ghraib who were made to carry the dirty water of the higher ups in DoD DoJ etc up to the principals committee and the President.

Ordinary Americans should support Colonel Romano in his difficult spot not by knee-jerk objection to the foreign state but by stronger adherence to what use to be – at least for people I grew up with – that torture was a crime, a sin, and not an American values.

I think we also need to reframe our view of Presidential constitutional powers to include an understanding of the limits of the Office of the President.   A President is not a deity or a King sending soldiers into battle to do illegal bidding and then leaving them to twist in the wind.