Milan prosecutors, including Armando Spataro, have succeeded in obtaining indictments on kidnaping charges against 26 American CIA operatives and 5 Italian intelligence officials. The latter are alleged to have kidnaped Osama Moustafa Hassan Nasr in Milan on 2/17/03.
Kidnapings like these are euphemistically termed "extraordinary renditions" by those who perpetrate them. This phrase has found its way into press reports that I sometimes quote. The term kidnaping is more truthful.
Only time will tell how important these indictments are in turning the tide against the tyranny of George W. Bush and its support by Congress and the Supreme Court. The case has a significant potential. The U.S. intelligence agents indicted may never be extradited, but they may be tried in absentia. Evidence will be made public. This episode is a notable legal and official step in bringing to justice those who have set out to destroy the rule of law and the Bill of Rights. Perhaps others will be encouraged to stand up against our homegrown tyrants. At the very least, the integrity and determination of the Milan prosecutors provide a ray of light, and a hope that they will give some spine to U.S. officials who have remained silent and supported the latest episodes in the growth of American despotism.
Most of this article consists of an objective history of the events leading up to the issuing of these indictments. Such accounts have a power all their own. Before providing that, let us look into the thoughts of the man who has brought these indictments about, Armando Spataro. There are lessons here too.
Spataro is an experienced prosecutor known for his work against the Red Brigades. His terror-fighting credentials are impeccable. At the time of Nasr’s abduction, Spataro and others were investigating him as a terror suspect. The CIA and Italian intelligence kidnaping undermined their legal investigative processes.
Spataro’s subsequent investigation of this illegal act has not been motivated by anti-Americanism or left-wing sentiments, as he has been accused of. In a 2005 interview, regarding a recent terror investigation, he states: "I must say that in Italy — and I say this with some degree of pride — we have a deeply rooted tradition for these kinds of investigations against the organized crime, both of Mafia and terrorist nature. Therefore, judges give permission to monitor phone calls and conversations, obviously because our laws allow that, and our police force, as well as the public prosecutor, have an extensive expertise for these kinds of investigations." Mindful of the abuses of prosecutors in the U.S., I still have the impression that these are the words of a man accustomed to following the laws of his country. The entire interview shapes my view of Spataro’s values.
He also states: "Well, I believe that everyone is interested in prevention, even in Italy. For instance, during the summer or close to Sept. 11, controls were intensified, and even the media worked a lot. And this is the right thing to do. But at the same time, it is obviously unthinkable to keep someone in prison or in a prison camp in one of our nations without a trial. And I must add, it is difficult to think about freezing and seizing the assets of someone suspected of being a terrorist without listening to his version." These are the words of a man who respects the rights of suspects.
And Spataro is very mindful of and experienced in international police cooperation, including with Americans. "Keep in mind that in Milan, we have had on our shoulders almost 10 years of investigation of this phenomenon, the Islamic terrorism, but unfortunately, it is a very difficult field to investigate. Also, our American colleagues and those in other parts of the world know that, and therefore, often we find ourselves before new findings; that is, names of people who are involved in the investigations, and some of them quite important, of whom we didn’t have previous knowledge. This is a reason of concern, a reason why it is even more important to have international cooperation, not only within the European countries, not only between European countries and the Americans, but also with respect to North African countries, for example. I believe we should intensify our efforts in order to create a permanent and fast cooperation."
He adds: "Look, I am fairly convinced that we already have many conventions, international resolutions, by the United Nations, the European Union. We have agreements among police forces, and we also have physical places where we meet. I believe that it is important to really keep alive this cooperation. This means to blindly trust mutual reliability of the systems. I also have to say, though, that with respect to Italy, our relationship is excellent, our requests have always been answered quickly, and we did the same when it was the other way around. Also, with respect to Rabei’s case, we immediately notified the Americans, as well as other main European countries that were involved in the investigation, with copies of conversations, recordings, interviews, because it is good that the knowledge of these phenomena grows everywhere in the same way and at the same time."
Spataro’s statements inform us that there are experienced police officials who have been and are involved in anti-terror work. They view it as a police problem. They know how to proceed legally. They know how to cooperate and share information internationally. They have a police culture that generates cross-country trust. They have had success. They do not have a CIA or intelligence culture. Meanwhile, the introduction of violent CIA methods eclipses the rule of law and confounds their operations.
In 2005, Spataro highlighted another extremely important consideration: "I feel the international community must struggle against . . . international terrorist groups in accordance with international laws and the rights of the defendant. . . . Otherwise we are giving victory to the terrorists." These are not the words of a man who views the struggle as a war on terrorism to be fought by conventional armed forces.
We are fortunate that countries still have local governments. They can be the seeds of resistance to national tyrannies. Spataro, a Milan prosecutor, has not obtained the cooperation of the governments of Italy, either that of Silvio Berlusconi or the new Prime Minister Prodi. They are in league with and supportive of George W. Bush, although they need to make public statements on occasion that suggest the opposite. They gain political mileage by publicly standing up for Italy as a sovereign nation.
Behind the curtain of public pronouncements, European governments lined up with Bush. A memo dated 1/27/03 of the Council of the European Union indicates that the U.S. at that date had obtained the cooperation of the higher levels of European governments for the policies of kidnaping terror suspects and spiriting them away to prisons. A quote: "Both sides agreed on the areas where cooperation could be improved i.a. [inter alia] the exchange of data between border management services, increased use of European transit facilities to support the return of criminal/inadmissible aliens, co-ordination with regard to false documents training (US side will provide the EU with a paper suggesting modalities for the coordination of false documents training) and improving the cooperation in removals."
I next present a brief history of the events leading up to the issuing of these indictments. Make your own interpretations and draw your own conclusions. As this case unfolds in the future, this time line will help you understand what the events mean.
1/14/03 Nasr is walking along the Via Guerzoni in Milan when a surveillance photo is taken of him. Later Italian police find this photo on a computer disk in the Italian home of Robert Seldon Lady. He is at that time the CIA’s ranking officer in Milan.
Nasr is already under surveillance by Italian authorities.
2/17/03 Nasr is kidnaped in Milan. Two men drive off with him in a van.
4/20/03 Nasr is released from Egyptian prison under home arrest. He makes calls to family in Milan recorded by Italian police wiretaps.
5/12/04 Egyptian police again arrest Nasr and place him in a Cairo prison, having discovered he spoke to people in Milan.
6/22/04 A Milan judge approves arrest warrants for 13 alleged CIA agents, charging kidnaping. The names are apparently aliases. CIA charged with secreting Nasr in Aviano Air Base, flying him to Ramstein Air Base in Germany, and then later to Egypt.
8/30/04 Milan prosecutors and the Italian Justice Ministry file requests with Egypt on Nasr’s whereabouts but receive no reply. It is 18 months since Nasr was kidnaped.
8/04 Robert Seldon Lady steps down from his post.
7/1/05 Italy’s Prime Minister Silvio Berlusconi releases an official statement demanding that the U.S. exhibit full respect for Italian sovereignty. The U.S. ambassador, Mel Sembler, assures the Prime Minister of the full and total respect of the U.S.
7/20/05 Further Italian arrest warrants for 6 more CIA operatives.
9/27/05 Three more CIA agents charged. One is a diplomat who was in the Rome embassy.
11/10/05 The Milan prosecutors seek extradition of the 22 defendants from the U.S. The Italian Justice Ministry reviews the matter. Prosecutors claim the CIA action violated Italian sovereignty and obstructed ongoing Italian terrorist investigations.
11/22/05 Italian Justice Minister Roberto Castelli suggests that the Milan prosecutor, Armando Spataro, is a leftist acting out of anti-Americanism. Milan’s chief prosecutor supports Spataro.
11/29/05 An Italian judge denies Lady’s argument that he has diplomatic immunity and upholds the arrest warrant. The judge suggests that international law creates limits to consular activity and that "within these limits, naturally, is the principle of the sovereignty of the host state that cannot allow on its territory the use of force by a foreign state that [is] outside every control of the political and judicial authorities."
12/23/05 European arrest warrants good in all 25 EU nations are issued by an Italian judge.
1/06 Italian government seeks judicial assistance from the U.S. This includes permission for prosecutors to gather evidence in the U.S. The U.S. does not answer this request.
2/09/06 Unnamed senior Italian judicial source says that the 22 CIA agents will be tried in absentia within a month. Italian prosecutors have evidence based on telephone-taps and cell-phone records. They claim Lady was a central figure in the abduction.
3/3/06 Four months have passed without any action from Castelli. Castelli conducts his own investigation to see if the charges are well-grounded. After receiving a letter from Milan prosecutors that urges a decision, Italian Justice Minister Roberto Castelli accuses them of unlawfully pressuring him to request the extradition of the 22 CIA agents.
Italian Prime Minister Silvio Berlusconi, who has staunchly supported the American war on terror, echoes Castelli. Both suggest that if the Milan prosecutors push the case forward, it will harm U.S.-Italian ties.
4/12/06 Giving no reason, Castelli decides not to validate Spataro’s requests for extradition. Spataro indicates he will petition the new government taking office shortly.
5/10/06 Nasr’s lawyer, having met with him in March and April, reports that Nasr was tortured. Such reports had surfaced much earlier.
5/11/06 An Italian newspaper reports that an Italian policeman has confessed to participating in the 2003 CIA kidnaping of Nasr. Italian officials deny being involved.
6/07/06 The Council of Europe releases a 67-page report on the CIA’s collaboration with 14 European countries in a web of secret prisons, kidnapings, and flights.
7/05/06 Two Italian intelligence officials (members of SISMI which is Italy’s Military Intelligence and Security Service), including General Gustavo Pignero, are arrested in connection with the Nasr kidnaping.
7/20/06 Nicolo Pollari, head of Italian intelligence, testifies in closed sessions of the Italian Senate, that he was not involved in the CIA kidnaping.
7/31/06 Pignero testifies that the CIA had identified more than 10 Italian residents for "extraordinary rendition," that is, kidnaping, and others in Austria, Belgium, and the Netherlands.
10/08/06 Italian prosecutors announce completion of their investigation. CIA agents involved now number 26. (This tally includes a U.S. Air Force officer stationed at Aviano Air Base.)
11/7/06 Spataro presses the new government for the extradition of the 26 CIA agents. There has been no response at this writing (2/17/07.)
11/10/06 Italian prosecutors add to their evidence an 11-page account of Nasr’s kidnaping and detention, written in his own hand.
11/20/06 The Italian cabinet removes Nicolo Pollari as head of Italian intelligence.
12/11/06 Italian court sets a January 9, 2007 hearing date on issuing indictments for 26 CIA agents and 5 Italian intelligence agents in the Nasr kidnaping.
1/09/07 Hearings begin. Faced with possible indictments, lawyers for the accused press for a political resolution of the case. No defendants are present.
1/09/07 The lawyer for Robert Lady withdraws from the case, stating that Lady would not cooperate. "Robert Seldon Lady says that this case should have had a political solution and not a judicial solution," lawyer Daria Pesce said. "The Italian government could have decided it was a state secret – remember, this was a terror suspect. It would have been possible if the Italian government had had the courage to reach an agreement with the U.S. government."
A press report provides Spataro’s reaction:
"Asked whether Pesce’s withdrawal signaled the CIA’s attempt to dissociate itself from the case, prosecutor Armando Spataro, who requested the indictments, said her statements were reminiscent of an era when terror groups tried to discredit Italian justice. u2018I heard the same thing from the Red Brigades during the terror trials in the 1970s,’ Spataro said."
Pollari’s defense lawyers reportedly seek to add current Prime Minister Prodi and past Prime Minister Berlusconi to the witness list.
1/29/07 At a preliminary hearing, Pollari’s lawyers move to stop Pollari’s trial on grounds that the evidence to prove his innocence is classified. The judge can either rule on the case or refer it to the Italian Constitutional Court.
1/31/07 German prosecutors issue arrest warrants for 13 CIA agents on suspicion of the wrongful imprisonment of a German citizen, Khaled al-Masri, and causing him serious bodily harm.
2/12/07 Nasr is set free in Egypt.
2/13/07 Nasr plans to seek damages in a lawsuit against the U.S. and Italy. He plans to sue Silvio Berlusconi for cooperating with the CIA.
2/14/07 Switzerland, following other European complaints and investigations about the U.S. anti-terror operations overseas, announces an investigation into unlawful use of Swiss airspace.
2/15/07 Testimony is heard that the CIA contacted SISMI about "extraordinary renditions" shortly after the 9/11 attacks.
2/16/07 Italian Judge issues indictments on 26 U.S. intelligence agents and 5 Italian intelligence agents for their alleged role in the 2/17/03 kidnaping of Osama Moustafa Hassan Nasr in Milan.
"This is a trial we absolutely should not have, and its result will be that our intelligence services will no longer have the co-operation of foreign intelligence," Mr Berlusconi was quoted as saying. "This is a strike against the security of Italian citizens."
In other very recent developments, the Italian government said it would not respond to extradition requests until the Constitutional Court ruled on whether prosecutors had overstepped by tapping phones of Italian secret service agents.
"The moves drew a scathing response from Milan prosecutor Armando Spataro, who said the extradition request was made to the previous government of Silvio Berlusconi before any Italian agents were implicated in the request and should not be linked. He denied prosecutors violated laws involving evidence. u2018The law allows the government to give a negative response but not to fail to respond (to the extradition request)’, Mr. Spataro said. ‘The silence of this government by now exceeds the length of silence of the previous government.’"
Michael S. Rozeff [send him mail] is a retired Professor of Finance living in East Amherst, New York.