I

In a landmark ruling on November 4, 2009, Italy’s highest court gave verdicts on the 2003 abduction of Egyptian-born cleric Mustafa Osama Nasr, known as Abu Omar. On February 17, 2003, Nasr, an Egyptian cleric, was abducted as part of an extraordinary rendition operation between the Central Intelligence Agency (CIA) and the Italian Military Intelligence and Security Service (SISMI) while walking to a mosque in Milan, Italy. Under investigation by the Italian police, Nasr was suspected of recruiting militants for Iraq. The CIA flew Nasr to Egypt where they tortured him with electric shocks, beatings, genital abuse, and threats of rape. Although the Italian court issued indictments against the defendants in June 2005, the case was slowed by the Prodi and Berlusconi administrations, which were concerned with maintaining friendly Italian-American relations.

Of the 26 CIA operatives tried in absentia, 23, including U.S. Air Force Lt. Col. Joseph Romano, were convicted by the Italian court, while three were protected by diplomatic immunity. Robert Seldon Lady, the CIA station chief in Milan at the time of the kidnapping, received an eight-year sentence, while 21 other former agents each received five years. The Milan court also found that two Italian officials were complicit in the CIA abuses and sentenced them to three years in prison. The judge refrained from providing a verdict against five of the seven Italians on trial, as a result of a March 2009 ruling by the Italian Constitutional Court. The ruling interpreted the state secrecy doctrine to provide broad protections to the five Italian defendants and served to block evidence against them in the present case. Joanna Mariner, Human Rights Watch Terrorism and Counter-Terrorism Director, has criticized the United States and Italy for using the state secrecy doctrine to provide diplomatic immunity guarantees to government officials responsible for gross human rights abuses. Nevertheless, Human Rights Watch has stated that the verdicts “[mark] a historic legal challenge to the CIA’s rendition program.” This is this first time CIA operatives have faced a criminal trial for the use of extraordinary rendition, a controversial anti-terrorism program expanded by the George W. Bush administration. According to Italian prosecutor Armando Spataro, this verdict sends a clear message to all governments “that even in the fight against terrorism you can’t forsake the basic rights of our democracies.” Most importantly, the verdicts call on the Obama administration to follow Italy’s lead in prosecuting other officials who had been involved in the program. Although the Obama administration launched an investigation into the CIA’s abusive interrogation techniques in 2009, it has not focused on the U.S. rendition program.

It is uncertain whether the CIA operatives have any recourse in the United States following their guilty verdicts in Italian court, given that the Italian judge has ignored requests to move Lt. Col. Romano’s case to the United States. On the other hand, Sabrina De Sousa, an American defendant, has sued the State Department in federal court for diplomatic immunity. She plans to amend her lawsuit to include Jeffrey Castelli, Robert Seldon Lady and the CIA as defendants because they were responsible for the abduction. De Sousa denies involvement in the rendition.

In light of the verdict dismissing a suit brought by Canadian rendition victim Maher Arar on November 2, 2009 by a U.S. federal appellate court in New York, the United States is unlikely to enforce the recent Italian ruling. However, the EU arrest warrants issued against the 22 defendants render them subject to the threat of arrest anywhere outside the United States for the rest of their lives. One thing is for certain: the outcome of the Italian court verdict puts increasing pressure on the Obama administration to re-evaluate its rendition program.