What the Milan conviction of 23 U.S. officials means for those on trial and the future of diplomatic immunity.
For the first time since the September 11 attacks, a court has charged and convicted former CIA officials and a military officer for their involvement in an alleged case of "rendition," a now-infamous procedure used to capture and question terrorism suspects. Following a months-long trial, for which none of the defendants were present, a Milan court today convicted 23 CIA operatives and one Air Force colonel in the kidnapping a Muslim cleric, who says he was later tortured in Egypt.
The implications of the ruling range from banal to the profound. The CIA operatives and an Air Force officer can forget about spending the summer in Provence, or any European Union country for that matter. But more fundamentally, the case raises questions about diplomatic immunity and the ability of foreign courts to try U.S. officials in cases of supposed human rights and other abuses.
The case relates to an incident that happened in February 2003, when an agency team hustled a top al Qaeda suspect known as Abu Omar into a van, rushed him to the U.S. air base at Aviano, and flew him to Cairo via Ramstein, Germany, for interrogation.
Italian police later intercepted a telephone call from Omar to his wife in Milan in which he described his abduction in detail from where he said he was captured. The detectives, mining cell phone broadcast records on the day of Omar’s disappearance, easily traced the kidnapping team to its hotels and rental cars, which eventually revealed its members’ true and false names and movements all over Italy.
The question of the convicted officials’ status seems relatively clear. Despite a plea for the case’s prosecutor, the Italian government in Rome has decided not to press Washington for extradition. Regardless, the U.S. government would be unlikely to hand them over. However, should any of the convicted enter the European Union, they will be met with handcuffs, the Milan prosecutor, Armando Spataro, told me. A European arrest warrant has been issued, which would turn over the officials to prosecutors in Milan to serve out the five- to eight-year prison sentences handed down today.
But that’s where the damage ends for the CIA, a former senior U.S. intelligence officer told me. He spoke anonymously because the case still involves a still-classified operation. "No great secrets were revealed, no sensitive equipment compromised," he said.
Nor will diplomatic relations with Rome and other governments allied with Washington in the war on Islamist terrorism be undisturbed by the case. "There will be a lot of hyperbole about how this will affect diplomatic relations and renditions," said the former intelligence officer. "[B]ut in reality, nothing will change." He maintained that Italy would remain cooperative as an ally in the war on terror. "If it’s in [Italy’s] interest" to collaborate on future renditions, he said, "they’ll do it."
For the CIA, "the issue is better field management and tradecraft." The Milan fiasco "shouldn’t keep you from doing something — just do it better."
Those convicted include Robert Seldon Lady, the CIA’s man in Milan at the time. By some accounts, he objected to the operation. But he did his part because he was "a soldier," he told the Italian daily Il Giornale this summer. He was sentenced to an eight-year jail term today.
Another CIA operative sentenced in the case was Sabrina De Sousa, who at the time was listed as a U.S. consular official in Milan. De Sousa, 53, has maintained all along that she was a U.S. Foreign Service officer who deserved diplomatic immunity, despite voluminous records gathered by the Italian prosecutor, Armando Spataro, showing her to be a CIA officer with responsibility for liaising with Italian intelligence on the operation. The State Department does not confer diplomatic immunity on consular officials as it does embassy officials. Regardless, De Sousa also maintains that because she was on a Swiss skiing holiday at the time of the abduction, she is innocent of the kidnapping charges laid against her.
De Sousa’s case raised particular questions after she persuaded the U.S. government to pay her legal expenses last summer. She, like Robert Lady, was never granted diplomatic immunity from the kidnapping charges even as the mastermind of the operation, former Italy CIA station chief Jeffrey Castelli, was. Castelli’s documentation shows him as a State Department official in the Rome embassy, granting him immunity. The court also declined to sentence two lesser CIA officers stationed in Italy, Betnie Medero and Ralph Russomando, for the same reason. (Spataro plans to appeal, he told me this afternoon. "Their crime, in my opinion, is not covered by any immunity because it was not committed in the exercise of their diplomatic functions.")
De Sousa’s attorney in Washington, Mark S. Zaid, expressed outrage at the U.S. government for abandoning his client and plans to sue it for monetary damages. "The Italian conviction merely confirms the U.S. government’s betrayal of our diplomatic and military representatives overseas," Zaid wrote today in an e-mail. "The intentional failure of the government to protect those such as Ms. De Sousa is a travesty and an embarrassment."
Indeed, the case sends CIA operatives a reminder that they’re on their own if they take the field without a cloak of full diplomatic immunity. "It’s part of the world of intelligence, working undercover," the former CIA offical said.
The final irony of the case is that the "victim," Abu Omar, who had long been the target of Milan counterterrorism investigators, could end up being awarded title to an Italian country house that Lady bought for retirement, in compensation for Omar’s pains, according to the procedures of trials in absentia. He "doesn’t need to come here to collect [the deed]," Lady’s erstwhile Italian lawyer, Daria Pesce, told me in a 2007 interview, explaining the procedure. "He could get it via anybody he appoints to represent him, through power of attorney." Omar, however, is unlikely to ever live in Lady’s home: He’s wanted for questioning on terrorism charges by the same prosecutor who convicted the Americans for kidnapping him.