Historic Verdict Sentences US Agents in Absentia
November 4, 2009
The Milan court sent a powerful message: the CIA can’t just abduct people off the streets. It’s illegal, unacceptable, and unjustified. Both the Italian and US governments should now be on notice that justice authorities will not ignore crimes committed under the guise of fighting terrorism.
Joanne Mariner, terrorism and counterterrorism program director

(Milan) - An Italian court's conviction of 23 agents of the US Central Intelligence Agency (CIA) for kidnapping is an historic repudiation of the CIA's crimes, Human Rights Watch said today. The Milan court also found that two Italian officials illegally collaborated in CIA abuses.

The judge said he could not pronounce any verdict against five of the seven Italians on trial for the 2003 abduction of an Egyptian imam because they were protected by the state secrecy doctrine. Of the 26 Americans who were on trial, all of them in absentia, the court found that three were protected by diplomatic immunity guarantees.

Robert Seldon Lady, alleged to be the CIA station chief in Milan at the time of the kidnapping, received an eight-year sentence, the most serious penalty that the court handed down in the case.

"The Milan court sent a powerful message: the CIA can't just abduct people off the streets. It's illegal, unacceptable, and unjustified," said Joanne Mariner, terrorism and counterterrorism program director at Human Rights Watch. "Both the Italian and US governments should now be on notice that justice authorities will not ignore crimes committed under the guise of fighting terrorism."

In a disappointing development, the court ruled that it could not pronounce a verdict for five Italian defendants, all current or former officials with SISMI, Italy's military intelligence agency, because the evidence in the case against them was protected by state secrecy. The court apparently felt constrained by a March 2009 ruling of Italy's Constitutional Court, which set out an overbroad reading of state secrecy protections.

The court did, however, reject even broader interpretations of state secrecy protections asserted by numerous other defendants, which could have completely prevented the court from examining evidence of CIA/SISMI joint criminal activity. Had the court adopted the defendants' sweeping position, the bulk of the evidence in the case might have been excluded.

"Just as in the United States, government officials in Italy are relying on state secrecy to shield their illegal acts from judicial scrutiny," Mariner said. "This is incompatible with the principle that government officials should be treated equally before the law and held accountable for their crimes."

Human Rights Watch also disagreed with the court's reading of diplomatic immunity protections, arguing that such immunity should not be interpreted to protect officials responsible for grave human rights crimes.

Human Rights Watch emphasized that the vigorous efforts of the Italian criminal justice system to prosecute CIA operatives for abusive rendition operations underscore the relative inactivity of the US Department of Justice. Although the Obama administration has opened a preliminary investigation of CIA interrogation abuses, the review is narrowly focused and does not cover CIA renditions.

The verdicts today also stand in stark contrast to a disappointing decision issued on November 2 by a US federal appellate court in New York, which dismissed the suit brought by Canadian rendition victim Maher Arar. Arar was detained while in transit at John F. Kennedy airport in September 2002, then rendered by the CIA to Jordan and Syria, where he was brutally tortured for nearly a year.

Hassan Mustafa Osama Nasr, better known as Abu Omar, was kidnapped as he was walking down the street in Milan on February 17, 2003. The abduction is believed to have been a joint operation between the CIA and Italian military intelligence.

After being driven by his captors to Aviano Air Base in northeastern Italy, Abu Omar was allegedly put on a plane and flown to Ramstein Air Base in Germany, and from there to Egypt. He claims that he was tortured repeatedly during the nearly four years he was held in Egyptian custody without charge.

"I was brutally tortured," he told Human Rights Watch in a 2007 interview, "and I could hear the screams of others who were tortured, too."

An Italian court issued indictments against those believed responsible for the cleric's abduction in June 2005, but the case moved forward slowly, in part because successive Italian governments viewed the prosecution as a hindrance to Italian-US relations. Notably, both the Berlusconi and Prodi governments refused to seek the extradition of the 26 Americans being prosecuted in the case.

The Italian government also tried to block the case by challenging much of the evidence that implicated the defendants in the case, claiming that its use could endanger national security. In March 2009 , in an important setback for the prosecution, Italy's Constitutional Court barred much of this evidence from being admitted at trial, ruling that it was protected by the state secrets doctrine.

In his final argument before the court, lead prosecutor Armando Spataro made a powerful argument for holding government officials accountable for grave human rights abuses, including those committed in fighting terrorism. Referencing the reasoning of the post-World War II Nuremberg Tribunal, he rejected the claim made by certain CIA defendants that because they were following orders their actions were legitimate.

The Italian defendants included Gen. Nicolò Pollari, the former head of SISMI, Italy's military intelligence service, who was forced to resign over Abu Omar's abduction and rendition, and Pollari's former deputy, Marco Mancini.

The American defendants consisted of 25 alleged CIA operatives - including former Milan CIA station chief Robert Seldon Lady and former Rome CIA station chief Jeffrey Castelli - as well as US Air Force Lt. Col. Joseph Romano, who was stationed at the Aviano military base in northeastern Italy at the time the events occurred.

The seven Italian defendants in the case were tried in person, while the 26 American defendants were tried in absentia. The Italian government provided legal representation for the American defendants, but two of them hired private counsel. Human Rights Watch is concerned that trials in absentia do not afford defendants an adequate opportunity to present a defense as required under the International Covenant on Civil and Political Rights. Should Italian law enforcement authorities ever gain custody over the defendants, Human Rights Watch believes that the men should be granted a retrial.

During the Bush administration, responsibility for the CIA's rendition program lay at the highest levels of government. In the immediate wake of the September 11 attacks, President George W. Bush signed a classified presidential directive giving the CIA expanded authority to arrest, interrogate, detain, and render terrorist suspects arrested abroad. During his two terms in office, the US is believed to have rendered terrorism suspects to the custody of Egypt, Jordan, Morocco, Libya, and Syria, among other countries.

The exact number of people rendered by the CIA to foreign custody since 2001 is unknown. Then CIA Director Michael Hayden claimed in a 2007 speech before the Council on Foreign Relations that fewer than 100 people had been rendered abroad since the September 11 attacks: "mid-range two figures," he said.

"The CIA's rendition program should be on trial in the United States," Mariner said. "But since the US Department of Justice has utterly failed in its responsibility to investigate and prosecute these serious crimes, it was left to Italy to bring this important case to trial."