ndmckinney|net

An Italian judge has ordered CIA and Italian agents to stand trial for the 2003 kidnapping and subsequent rendition of an Egyptian cleric. The problem is that the individuals are not in custody.

Now to begin, I don’t agree with the tactics used by the CIA. I think that the rule of law must be respected, and the Italians would have the right to try these individuals, were they to remain in Italy. See The Case of the S.S. Lotus. Arguably, the actions might fall under the immunities granted to foreign governments, but I won’t enter into that debate.

At issue for the U.S. courts will be whether or not to recognize a judgment rendered by the Italian courts. There is nothing binding the U.S. courts to recognize a foreign judgment, save for “the comity of nations.” However, so long as the trial comports with due process of law, our courts will recognize the judgment. However, if a foreign court fails to at least attempt to follow due process, the U.S. will not give recognition to any foreign judgment. As the referenced article notes, “under Italian law the agents can be tried in absentia.” Such a move by the Italian court, especially in the face of other diplomatic and judicial discussions on the matter, exceed the authority of the court, are prejudicial, and waste the time of everyone involved.

It’s really a shame that the Italians have decided to proceed. Instead of waiting for the international negotiation process to work itself out, or taking this action to a larger international institution, they have resorted to “self-help”, and any judgment rendered by the Italian courts will be seen as highly political and utterly lawless. The underlying case is quite meritorious, but the Italians will distract from the issue by creating a new controversy.