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Italian Court Affirms State Secrets Doctrine
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| Nasr |
By Michael P. Tremoglie, The Bulletin
Italy’s Constitutional Court dealt a setback to the first criminal prosecution of an alleged joint CIA-Italian military intelligence (SISMI) “extraordinary rendition” operation. The court ruled that the trial courts and prosecutors overzealously investigated the alleged kidnapping of a suspected terrorist.
The Italian case involves the alleged 2003 CIA-SISMI kidnapping of Egyptian terrorist suspect, Osama Moustafa Hassan Nasr, also known as Abu Omar, in Italy. Mr. Nasr claims he was taken from Italy by CIA and SISMI agents and returned to Egypt where he was tortured.
The decision by the Constitutional Court (known as the Consulta because it is housed in the Palazzo della Consulta in Rome) nearly replicates the ruling by a judge for the U.S. District Court for the Northern District of California in San Jose, Calif., who tossed out an ACLU lawsuit about “extraordinary rendition” by also citing that state secrets would be compromised in an open trial.
Not only was the “state secrets” doctrine used by the Bush administration Justice Department to have the case thrown out of the federal court, it was subsequently used by the Obama Justice Department, much to the chagrin of many of Mr. Obama’s supporters, in last month’s appellate case before the Ninth Circuit Court of Appeals.
Mr. Nasr’s abduction claimed headlines worldwide and stoked discussion of the controversial US policy of “extraordinary rendition” operations, which were first used during the Clinton administration.
The Consulta ruled prosecutors violated Italian state secrecy laws to build the case that led to indictments in the 2003 abduction. The judges did not formally throw out the indictments but the prosecution’s case has been severely hampered.
Prosecutors say the terrorism suspect, Mr. Nasr was taken to U.S. bases in Italy and Germany before being moved to Egypt, where he was imprisoned for four years. Mr. Nasr, who has been released, said he was tortured there.
The Italian government denies any role in the operation. The CIA has declined to comment on the case. The trial in Milan was suspended pending the Consulta’s ruling.
When the trial resumes March 18, Judge Oscar Magi must turn over evidence deemed classified, notably thousands of dossiers on prominent public figures seized from the Rome apartment of a SISMI agent. The court also threw out testimony by a SISMI officer who allegedly had been at the scene of the kidnapping.
The case has been highly divisive in Italy. Accusations of politicization have been hurled by both sides. The prosecution has accused the government of evading the law. The government has accused the prosecution of being anti-American.
The former Italian Justice Minister, Roberto Castelli, said in 2005 that Armando Spataro, the Milanese prosecutor who initiated the case, was a leftist animated by “anti-Americanism.” Mr. Spataro, last year, accused Prime Minister Silvio Berlusconi and his predecessor Romano Prodi of using national security norms to “obstruct justice” and “prevent the truth emerging.”
Last Wednesday, the Italian court agreed with the government that the judge and prosecutor violated the Italian Constitution with its actions. The prosecution’s ability to investigate the relationship between the CIA and SISMI is essentially prohibited.
The full impact of the ruling will not be known until the judges publish their reasons for the ruling. By Italian law, every verdict or ruling issued by a judge must be accompanied by a written explanation for the decision.
Michael P. Tremoglie can be reached at mtremoglie@thebulletin.us
The Italian case involves the alleged 2003 CIA-SISMI kidnapping of Egyptian terrorist suspect, Osama Moustafa Hassan Nasr, also known as Abu Omar, in Italy. Mr. Nasr claims he was taken from Italy by CIA and SISMI agents and returned to Egypt where he was tortured.
The decision by the Constitutional Court (known as the Consulta because it is housed in the Palazzo della Consulta in Rome) nearly replicates the ruling by a judge for the U.S. District Court for the Northern District of California in San Jose, Calif., who tossed out an ACLU lawsuit about “extraordinary rendition” by also citing that state secrets would be compromised in an open trial.
Not only was the “state secrets” doctrine used by the Bush administration Justice Department to have the case thrown out of the federal court, it was subsequently used by the Obama Justice Department, much to the chagrin of many of Mr. Obama’s supporters, in last month’s appellate case before the Ninth Circuit Court of Appeals.
Mr. Nasr’s abduction claimed headlines worldwide and stoked discussion of the controversial US policy of “extraordinary rendition” operations, which were first used during the Clinton administration.
The Consulta ruled prosecutors violated Italian state secrecy laws to build the case that led to indictments in the 2003 abduction. The judges did not formally throw out the indictments but the prosecution’s case has been severely hampered.
Prosecutors say the terrorism suspect, Mr. Nasr was taken to U.S. bases in Italy and Germany before being moved to Egypt, where he was imprisoned for four years. Mr. Nasr, who has been released, said he was tortured there.
The Italian government denies any role in the operation. The CIA has declined to comment on the case. The trial in Milan was suspended pending the Consulta’s ruling.
When the trial resumes March 18, Judge Oscar Magi must turn over evidence deemed classified, notably thousands of dossiers on prominent public figures seized from the Rome apartment of a SISMI agent. The court also threw out testimony by a SISMI officer who allegedly had been at the scene of the kidnapping.
The case has been highly divisive in Italy. Accusations of politicization have been hurled by both sides. The prosecution has accused the government of evading the law. The government has accused the prosecution of being anti-American.
The former Italian Justice Minister, Roberto Castelli, said in 2005 that Armando Spataro, the Milanese prosecutor who initiated the case, was a leftist animated by “anti-Americanism.” Mr. Spataro, last year, accused Prime Minister Silvio Berlusconi and his predecessor Romano Prodi of using national security norms to “obstruct justice” and “prevent the truth emerging.”
Last Wednesday, the Italian court agreed with the government that the judge and prosecutor violated the Italian Constitution with its actions. The prosecution’s ability to investigate the relationship between the CIA and SISMI is essentially prohibited.
The full impact of the ruling will not be known until the judges publish their reasons for the ruling. By Italian law, every verdict or ruling issued by a judge must be accompanied by a written explanation for the decision.
Michael P. Tremoglie can be reached at mtremoglie@thebulletin.us
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