CHARLESTON, W.Va. -- Secretary of State John Kerry engaged in a jawboning exercise with Russia this weekend, demanding that President Vladimir Putin bar the exit from the Moscow airport of Edward Snowden, the former NSA operative under indictment for espionage for disclosing to the American people the U.S. government's interception of several hundred million communications among American citizens.
Mr. Kerry wrapped his message to the Russians in a "follow the rule of law" ribbon, pointing out that the United States in recent years has honored requests for extradition of persons charged by Russia with crimes. However, the "rule of law" principle espoused by Kerry, if actually enforced, could pose real dilemmas for the American government in the future.
Consider for a moment how the U.S. government would respond if the government of Spain -- following the precedent of their 1998 indictment of former Chilean dictator Augusto Pinochet for violation of human rights and torture -- indicted and demanded the extradition of George W. Bush, Dick Cheney or Donald Rumsfeld for a criminal conspiracy to violate the Geneva Convention and other international treaties to which the United States is a signatory.
What would such an indictment look like? It would recite that from 1949 forward, the United States has been a signatory to the Geneva Convention that bans torture. And the indictment would allege that terrorist suspects seized in Iraq and Afghanistan after 9/11 were interrogated using physical and psychological techniques that had been previously declared illegal by the European Court of Human Rights (after their use by British forces against terrorist suspects in Northern Ireland), and outlawed by the Israeli Supreme Court (after their use by security forces in Israel against terrorist suspects).
The factual allegations would be straightforward. At a Sept. 17, 2006, news conference, President Bush publicly acknowledged that he personally approved the use of torture, euphemistically described by as "alternative interrogation techniques." Those alternative techniques included "waterboarding," a form of torture which Dick Cheney alone, secure in the fishing holes of Wyoming, casually dismisses as equivalent to being pushed into a swimming pool.
Bush and Cheney also ordered the "rendition" of prisoners to the governments of Jordan, Egypt and Morocco, in violation of Article 3 of the United Nations Convention Against Torture which prohibits the United States, as a signatory, from expelling or extraditing a person to another state "where there are substantial grounds for believing that he would be in danger of being subjected to torture." It is now clear that the United States delivered prisoners to Egypt in particular (then conveniently in the iron grip of the U.S. surrogate, Hosni Mubarak) precisely because they knew the prisoners would be tortured, and the information extracted thereby delivered on a silver platter to the U.S. government.
Secretary of Defense Donald Rumsfeld transferred to Abu Ghraib prison in Iraq (the house of horrors formerly operated by Saddam Hussein) Gen. Geoffrey Miller, the former commandant of our prison in Guantanamo, with orders that interrogators "take the gloves off"; the resulting torture was later revealed in photographs published around the world.
The United States did not ratify the treaty creating an International Criminal Court, in no small part as a means of ensuring that no U.S. soldier (or politician) would be held accountable to international legal tribunals. The stated reasons for the U.S. refusal to join the International Criminal Court are obvious. How could we be assured of a fair trial?
Obviously, no nation would submit their soldiers and elected officials to lawlessness in the form of a politically motivated kangaroo court, regardless of any imprimatur accorded it by its location in The Hague or some other appropriately neutral locale. After all, we are, as Secretary of State Kerry states, a nation of laws.
But Secretary Kerry may want to recall the words of U.S. Supreme Court Justice Robert Jackson, the chief prosecutor at the Nuremberg Tribunal, in his report to the State Department, wrote:
"If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."
The question presented by U.S. demands for the extradition of Edward Snowden is whether the United States will honor requests for extradition of U.S. political figures charged with violation of international treaties -- whether for torture, rendition or other violations -- after indictment by co-signatories to those treaties. The "rule of law" principle espoused by Secretary Kerry would require precisely that.
DePaulo is a lawyer in Charleston.