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The Litvinenko Case and the Obstacles to Cross-Territorial Investigations

6 MINS READDec 9, 2006 | 01:49 GMT
Scotland Yard investigators traveled to Moscow this week as part of their probe into the Nov. 23 death by radioactive poisoning of former KGB spy Alexander Litvinenko. Although the Kremlin approved the British investigation, it has made it clear that the Russians are in charge and that any extradition request would be denied. For those reasons, and others, the British investigators have little chance of achieving a break in the case while in Russia — and even if they were to identify a suspect, it is highly doubtful that anyone would eventually be brought to trial. Russia, meanwhile, said Dec. 7 it will launch its own investigation into the case — even hinting at sending its own investigators to London — though the move could be aimed at addressing international public opinion rather than truly getting to the bottom of the Litvinenko killing. By appearing to take the case seriously and doing all it can to solve the case, Russia can portray itself as one that respects the rule of law. The British investigators will face two primary obstacles in their efforts to pursue the case via the Russians. First are the impediments to information-gathering often placed on foreign investigators by host governments — in this case, Russia. Second, like most governments, the Kremlin will protect one of its own citizens from extradition to another country unless it has overriding political reasons to do otherwise. Governments usually are reluctant to extradite intelligence or security operatives who have been working on their behalf because it would, in some cases, amount to an admission of involvement in a potentially illegal operation. An example is the less-than-enthusiastic U.S. response to Italian prosecutors' requests for the extradition of 13 people allegedly involved in the rendition of suspected Egyptian militant Hassan Mustafa Osama Nasr from Milan in 2003. Governments also would have a hard time finding operatives willing to perform such work if they knew they risked being turned over to a foreign government should the operation be compromised. Requests for police permission to enter a foreign country as part of an investigation usually are submitted via official diplomatic channels. In this case, the British Foreign Office likely would have sent a note to the Russian Foreign Ministry though its embassy in Moscow. The request would have filtered through the political process until a minister, or a higher-level official, granted permission. Now that they are in Russia, however, the British investigators will have to go through the prosecutor's office to gain access to witnesses or suspects. In all cases that involve foreign investigators, local intelligence services will want to control any interview and the access to evidence. They may even deny direct access to the witness, suspect or victim, but allow written questions to be presented. Under those circumstances the local authorities would do the questioning and the replies given back to the foreigners. In the current case, Russia's chief prosecutor has said the British team will be "assisted" in its investigation but that the Russians "will do the interviewing." These official obstructions, however, sometimes can be bypassed via law enforcement or intelligence liaison channels, perhaps even as part of a good old boy network. For example, foreign graduates of U.S. institutions such as the FBI's International Law Enforcement Academy or the State Department's Diplomatic Security Service Anti-Terrorism Assistance Program might be called upon by their American acquaintances for back-channel access to information and suspects. Other international law enforcement organizations such as Interpol and Europol also are used to open doors that may otherwise be closed to investigators. Much also depends on the ties between the two countries. Third World countries that are heavily dependent on a Western government for economic aid would be more likely to give investigators from that country access to people and information, rather than risk an interruption or reduction in the aid. Even in less-cooperative countries, foreign investigators sometimes can take advantage of loopholes or weaknesses in the system to get the information they seek. Host authorities, for example, might allow foreign investigators to gather physical evidence in their country and send it to back home for examination. Although this may appear to be a sign of good faith, the real reason could be that the host country lacks adequate forensic capabilities to do the job itself. The reality becomes apparent when the foreign investigators request more assistance, such as direct access to a suspect, and then find they are stymied. In cases of this nature, host governments most likely will provide official "escorts" for the visitors and have them tailed as well in order to keep an eye on their activities. If their every move is dogged by an uncooperative host, the investigators will make little headway. Host governments also can disrupt an investigation by declining to provide the foreign investigators with important evidence such as fingerprints or DNA. Of course, the level of cooperation also can depend on the particular circumstances. If the Russian government was behind the Litvinenko poisoning, for example, Moscow is likely to stonewall the investigation and employ red herrings to frustrate the investigators. If, on the other hand, the Russian state is not connected to Litvinenko's death, authorities are likely to be more accommodating. Ultimately, the host government also can decline to extradite any suspects that might be named, as Moscow has done in the Litvinenko case. However, an investigation that determines what happened is still useful from an intelligence-collection standpoint even if it does not ultimately result in a prosecution. Cooperation from the host government is different in friendly countries than in not-so-friendly ones. In Canada or the United Kingdom, for example, U.S. investigators usually can count on full cooperation, although certain issues still might have to be resolved between the governments. The United States, for example, might promise to take the death penalty off the table as a possible punishment for anyone turned over to Washington as a result of the investigation, since it is not used in those countries. Given the approvals that must be granted for cross-territorial investigations, rarely is one carried out without politics coming into play on some level. Many Russians who are critical of their government's policies have been granted political asylum by the United Kingdom, which has created tension between Moscow and London and made Russia perhaps even less receptive to British investigators. Conducting thorough investigations in foreign countries is difficult under any circumstances. In this case, because of the tensions between London and Moscow and the dynamics involved, British investigators should not expect a major break in the case to occur during the Moscow leg of their inquiry.

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