Under the U.S. Supreme Court: Will Egyptian alliance come back to bite us?

WASHINGTON, Feb. 6 (UPI) -- Will the long-term U.S. alliance with Egypt and President Hosni Mubarak came back to bite us -- legally as well as politically?

The close relationship between successive U.S. administrations and the Mubarak regime made sense strategically. Mubarak has consistently supported peace with Israel, following the policy of his martyred predecessor Anwar Sadat, who signed the Camp David accord in 1979. Before he was assassinated, Sadat moved Egypt from a Soviet alliance to a U.S. alliance.

Mubarak also supported the United States in the first Gulf War, sending Egyptian troops to help liberate Kuwait.

And he has been a bulwark against fundamentalist Islamic movements and a U.S. ally in the war on terror.

Now that Mubarak's power appears to be crumbling, the Obama administration is trying to balance support for a friend, support for human rights and a readiness to deal with whoever ends up on top in Egypt after what is hopefully a truly democratic process.

The autocratic, sometimes repressive nature of Mubarak's 29-year-old regime, which has been ruling through emergency decree for years, is not exactly a secret in the United States and other friendly governments.

The British newspaper The Guardian published leaked diplomatic cables late last month describing the atmosphere in Egypt before the current crisis.

"Torture and police brutality in Egypt are endemic and widespread," a cable said. "The police use brutal methods mostly against common criminals to extract confessions, but also against demonstrators, certain political prisoners and unfortunate bystanders."

The cables, classified by U.S. Ambassador Margaret Scobey, concedes: "Brutality against Islamist detainees has reportedly decreased overall, but security forces still resort to torturing Muslim Brotherhood activists who are deemed to pose a political threat. Over the past five years, the government has stopped denying that torture exists, and since late 2007 courts have sentenced approximately 15 police officers to prison terms for torture and killings."

Independent non-governmental organizations "estimate there are literally hundreds of torture incidents every day in Cairo police stations alone. Egyptians are bombarded with consistent news reports of police brutality, ranging from high profile incidents such as accidental but lethal police shootings in Salamut and Aswan ... that sparked riots, to reports of police officers shooting civilians following disputes over traffic tickets. In November 2008 alone, there were two incidents of off-duty police officers shooting and killing civilians in petty disputes. The cases against both officers are currently making their way through the judicial system."

One source said police "will even beat lawyers who enter police stations to defend their clients."

The cables say the United States wants to provide Egyptian police with better training.

If and when Mubarak finally steps down -- he says he is not running for re-election this fall -- a successor could open up secret police and intelligence service archives, and the United States could be flooded with lawsuits from torture and other victims seeking compensation from Egyptian funds held in the United States, or even try to hold U.S. officials liable if they acted outside their official duties.

The Alien Tort Claims Act, enacted by the first Congress in 1789, originally was intended to protect diplomats, violation of safe conducts and piracy, the NGO International Justice Mission points out. The act, really a statute, gives the federal courts original jurisdiction in any civil action brought by an alien for a tort -- legal wrong -- in violation of international law or a U.S. treaty.

But since 1980, following a ruling by the U.S. appeals court in New York, the act has been used to bring suit in federal courts "against foreign states, multinational corporations and individuals with command authority, such as former dictators and military commanders," IJM says. "Its express reference to international law makes the (statute) an attractive vehicle for human rights claims. While a foreign national can be the plaintiff, and the offense can occur anywhere in the world, a defendant must be subject to personal jurisdiction in the United States."

The U.S. Supreme Court in 2004 narrowed the act somewhat, but said the act specifically could be applied to "cases ... where harm was arguably caused both by action in the foreign country and planning in the United States."

Which raises the question of U.S. and Egyptian intelligence cooperating in the war on terror. If and when Mubarak and his security apparatus fall, will records become available that implicate U.S. officials in torture or at least show that U.S, agents tolerated torture?

One of the more public examples of U.S.-Egyptian cooperation was the kidnapping and extraordinary rendition of Egyptian cleric and terror suspect Abu Omar in 2003. CIA and Italian agents nabbed him on the streets in Milan, took him to an air force base, then sent him on to Egypt where he claimed he was interrogated and tortured.

The Italian courts indicted 26 CIA employees as well as Italian officials in 2009 for the kidnapping and began extradition proceedings, but the process got nowhere when an Italian official refused to send on the extradition requests to the United States.

Twenty-two of the CIA employees were tried in absentia and sentenced to prison. But the Italian courts have never had custody.

Meanwhile, Abu Omar was indicted in Italy for international terrorism in 2005 though an Egyptian court said it cleared him in 2007.

Amnesty International said Abu Omar, real name Usama Mostafa Hassan Nasr, is living in Alexandria, Egypt. The human rights group has asked the Italian government to give him reparations.

Besides the Alien Tort Claims Act, a U.S. statute also gives ammunition to those overseas with a legal ax to grind.

"Section 1782 of Title 28 of the U.S. Code ... is a powerful, though much underused, weapon," New York attorney David Zaslowsky wrote for insidecounsel.com in May. "It allows parties to proceedings outside the U.S. to come to this country and obtain document production and depositions in aid of those foreign proceedings."

If "discovery" -- production of evidence -- is needed for "a proceeding in a foreign or international tribunal," the section authorizes a federal judge to order the production of documents and the dispositions of witnesses if they are located within the judge's district.

Even better, Section 1782 can be brought by an "interested person," Zaslowsky said. "Potentially, this allows for some creative arguments as to who is covered by this definition. Without doubt, however, a party to the foreign proceeding qualifies."

That means a party can use the section without going through a foreign court.

Zaslowsky said the typical rule in the United States is discovery is not available before a lawsuit is begun -- meaning "Section 1782 provides for even broader discovery than is available with respect to U.S. lawsuits because the Supreme Court has held that the statute may be used in a foreign proceeding that is in 'reasonable contemplation.'"

Zaslowsky's interpretation is basically for in-house corporate U.S. attorneys involved in foreign proceedings, but depending on how the courts define "interested person," Section 1782 could be a potent weapon for those hoping to drag U.S. officials into court.