Argument

Up Close and Angry

Up Close and Angry

For a woman who could be arrested for kidnapping if she steps outside the United States, Sabrina De Sousa looks and sounds like a pretty cool customer.

The former CIA agent sips a lavender lemonade at Eatonville, one of those trendy bistros along Washington, D.C.’s U Street corridor, and says with a slight smile, "Everybody wants me to be sad, but.…" She lets it trail off.

Instead, she’s resigned. She reserves her anger for the senior figures in George W. Bush’s administration who were responsible for her fate but have escaped accountability, much less punishment, for their roles in the botched caper that has ruined her life.

Her list starts with the then-director of the CIA, George Tenet, and his head of covert operations at the time, Stephen Kappes, and continues to the Rome station chief who quarterbacked the ill-advised plan, Jeffrey Castelli. All three are now retired.

"The people responsible are sitting on corporate boards and living comfortable lives, traveling," she says. De Sousa, meanwhile, will likely spend the rest of her life under virtual house arrest in her adopted country, risking capture if she leaves U.S. soil.

It has been seven years since De Sousa, listed as an American diplomat at the U.S. Consulate in Milan, was indicted in Italy, along with 22 other Americans, in connection with the disappearance of an Egyptian terrorist suspect, known as Abu Omar, from a Milan street in February 2003.

In 2009, she was found guilty in absentia for an act that U.S. authorities call "extraordinary rendition," but Italy calls a crime — kidnapping. Along with secret CIA prisons and "enhanced interrogation techniques" such as waterboarding, CIA officials insist such methods were necessary, and effective, in preventing another terrorist attack on the United States. After years of denying their existence, the CIA closed the so-called "black sites" and banned waterboarding.

De Sousa was first sentenced to five years in prison. An appeals court tacked on two more years, without explanation.

As De Sousa and the 22 others had no intention of returning to Italy to stand trial, much less go to prison, their sentence has been existential: None can travel outside the United States without fear of arrest on an Interpol warrant. For any former operative who joined the spy agency to see the world, such a fate might amount to a grating inconvenience. For De Sousa, a native of the erstwhile Portuguese enclave of Goa, India, the sentence has meant a cruel separation from her family, in particular her elderly mother, for whom travel to the United States is simply too taxing. "It’s hard for her, and me," De Sousa says.

De Sousa’s Italian counsel appealed her conviction on grounds that no evidence tied her directly to the plot, that she was in the Alps skiing when Abu Omar (real name: Hassan Mustafa Osama Nasr) was snatched, and that the court’s decision that stripped her of diplomatic immunity was improperly applied in her case.

A decision was expected Tuesday, June 12, but was delayed for a couple days. Regardless, it’s highly unlikely Italy’s Supreme Court will accept her arguments. A lower court has already rejected them.

"It’s unlikely the Supreme Court will overturn the ruling issued by the Milan appeals court on 2010 related to the Abu Omar case," says Leo Sisti, a veteran investigative reporter for the weekly magazine l’Espresso, who has covered the case from the beginning.

"The Supreme Court could order a new trial," he says, "but only in theory. It happens, but only very rarely."

Three other defendants have fared better than De Sousa. Two years ago, an appeals court ordered a new trial for then-station chief Castelli and two others listed as diplomats at the U.S. Embassy in Rome, Ralph Russomando and Betnie Medero, on technical grounds.

Seventeen of the original defendants were given terms of seven years in jail. One, the CIA’s base chief in Milan at the time, Robert Lady, was sentenced to nine years.

Sisti points out that the statute of limitations on the appeals and unlikely retrials will run out in February 2013, in eight months, making it "difficult" for judges to conclude the cases — and therefore the courts and prosecutors are unlikely to proceed. There’s just not enough time.

In 2009, De Sousa filed suit against the U.S. State and Justice departments to force them to invoke diplomatic immunity on her behalf, since she was listed as a Foreign Service officer at the U.S. Consulate in Milan. The government filed a motion to dismiss, which the court granted.

Later, after her initial guilty verdict, she added the CIA and three managers in the rendition as defendants "because of the public allegations, and one could say findings, by the Italian prosecutor that the CIA, and in part these three individuals, were responsible for the rendition/kidnapping," De Sousa’s D.C. attorney, Mark Zaid, told Sisti by email last week. "Thus, it was at their hands that Sabrina suffered harm by being connected to them when, in fact, she had nothing to do with the rendition."

The case is ongoing, with the government denying all attempts by Zaid to get documents in the case declassified. Last year, the Justice Department even asserted that Zaid could not share classified information he has learned with the U.S. District Court judge presiding over the case. Judge Beryl A. Howell said the government’s assertion left her "literally speechless," but directed Zaid to respond in writing to the government’s objections.

"The government used the cloak-and-dagger shadow world of classification to shield itself from accountability and liability in how it abandoned one of its own," says Zaid. "To further ensure its misconduct was protected from disclosure, my security clearance was threatened. The government attorneys accused me of security violations and reported me to the respective security offices. The judge, however, applauded me for taking appropriate steps to protect national security."

De Sousa did eventually succeed in getting the State Department to provide her with legal counsel in Italy.

Meanwhile, she wonders why Abu Omar was "rendered" to an Egyptian prison for questioning in the first place. After his release, he told reporters he thought he recognized an American accent among the interrogators, whom he said beat him mercilessly. (He also displayed scars on his back.) He remains in Egypt; the CIA will not comment on any aspect of the case.

"There’s one burning mystery left," De Sousa says. "What case did Castelli," the CIA’s Rome station chief, "make to his bosses to render Abu Omar?" The Egyptian "was already under investigation by DIGOS," Italy’s version of the FBI, she notes. "He was not a clear and present danger, or they would’ve picked him up."

Weeks after Abu Omar was bundled into a van by CIA agents on a Milan street in February 2003 and secretly flown out of Italy, Italian authorities issued a warrant for his arrest on suspicion of terrorism-related activity.

Indeed, the head of DIGOS’s counterterrorism unit has privately complained that the CIA, working with members of Italy’s SISMI, the erstwhile foreign counterintelligence service (a new service has superseded it), got in the way of his own investigation.

De Sousa also wonders "why did Egypt agree to take [Abu Omar]," since he was not wanted in Egypt? And why did the CIA turn him over for questioning to Egyptians who were notorious for torturing prisoners?

De Sousa and Zaid would have liked to have been able to compel U.S. officials to answer questions about their roles in the rendition.

"The case unfortunately did not progress past the initial legal stage," Zaid says of De Sousa’s suit for diplomatic immunity. "The [U.S. District] court determined it did not have before it a claim that was viable under the law, and therefore we never possessed subpoena authority to pursue the substantive allegations."

De Sousa and Zaid, a veteran defender of CIA whistle-blowers, have tried to interest Congress in the case, in particular the Senate Select Committee on Intelligence (SSCI), with no success. De Sousa says that one SSCI staffer suggested she go back to India if she was unhappy. New Delhi and Rome signed an extradition agreement in 2003, in which Italy could petition an Indian court for De Sousa’s remand.

Ironically, De Sousa, now a youthful 56, resigned "from the State Department" after 11 years of service — she refuses to confirm she worked for the CIA — because the department had forbade her to visit India during her legal travails. So she quit in order to be free to travel.

Except now she can’t, since there’s an Interpol warrant for her arrest.

The Italian prosecutor, Armando Spataro, offered De Sousa one route to freedom, according to l’Espresso‘s Sisti: Confession. If De Sousa confessed, Sisti wrote, Spataro would ask the court to reduce De Sousa’s sentence.

But De Sousa refused. "I’m not going to confess that I participated and planned the whole thing," she says. She insists she had no advance knowledge of — much less involvement in planning — the Abu Omar abduction. She was away in the Italian Alps skiing when it went down.

But even if she had wanted to confess, it’s too late now anyway. The unofficial offer is off the table with the Supreme Court’s decision.

The whole affair is ridiculous, De Sousa says with some heat as she sips what’s left of her lemonade and watches the wait staff prepare for the dinner rush. During the Cold War, CIA and KGB agents under diplomatic cover were merely sent packing when they were caught spying. They were PNG’d — declared persona non grata. Spies were rarely put on trial. Although some critics have accused Italy of being out to "get" the CIA, prosecutor Spataro insists he was merely following his duty to investigate evidence of crime when it is presented to him.

Spataro’s cavernous office in Milan features several American works of art, including such iconic works as the 1964 Norman Rockwell print depicting a little black girl in a prim white dress being escorted to school by federal marshals in segregated New Orleans.

"You see," he said in heavily accented English to me when I visited on Thanksgiving Day 2007, "the faces here of the marshals, you cannot see them. It makes a point that justice has no face — it does not depend on who is in charge or who is accused. The law is the law."

In any event, kidnapping is a far more serious activity than espionage, a crime that Italian courts have decided is not covered by diplomatic immunity. Now, De Sousa fears her case and the whole Abu Omar incident will fade into history.

"Nothing’s going to change because no senior official has been indicted," she says. "If they had, people would take notice."

But even though she’s a small fish, others like her in U.S. diplomatic outposts, she warns, could be ensnared in CIA or U.S. special operations plots. It’s unlikely that highly secret al Qaeda renditions, which began in Bill Clinton’s administration, will end, even if Barack Obama’s administration seems to have opted for killing terrorist suspects with drones over capturing them.

"It’s me today, you tomorrow," she advises other U.S. Embassy personnel. "You may never see your family again."