No Comment — November 6, 2009, 11:38 am

More on the Verdict in Milan

I discuss an Italian court’s recent conviction of 23 American officials on kidnapping and assault charges stemming from a 2003 extraordinary rendition operation with DemocracyNow’s Amy Goodman and the Italian prosecutor, Armando Spataro, below:

In responding to Amy Goodman’s question about Interpol, Spataro gives a long answer that will be confusing to those who don’t understand the rather complex law in this area. He says that no arrest request (technically called a “red notice”) has been issued within Interpol, but that he is able to issue at will a European Arrest Warrant. This is because the Italian government, which sought to block the prosecution, has not supported arrest by forwarding the appropriate paperwork to Interpol. Whether the Italian government will hold to this position after a conviction remains to be seen. If they do, they will appear to be undermining the administration of the law. For the 27 nations in the European arrest system, however, Spataro can personally direct the arrest, and no government cooperation is necessary. Outside of the EU, it’s a matter of hit and miss whether local officials would cooperate on a request from the Italian prosecutors without going through the Interpol formalities. Certainly quite a few would do so.

It’s interesting to note the reaction in America to the verdicts in Italy. Telling is the editorial in the Los Angeles Times today: Italy got this right. No fake outrage or indignation, just simple recognition that Italy was applying the law, as we expect of a sister democracy.

A few further observations, largely based on my discussions yesterday with people who are following this matter in Washington:

First, this case helps us understand why the CIA is so vehemently opposed to probes of its operations. In this case almost two dozen covert intelligence operatives have had their cover blown and are now fugitives from justice. Sophisticated law enforcement techniques, many pioneered by the United States, are now being employed to track their movements. While a number of commentators claim this has no serious consequences, no one I have spoken with in the intelligence community feels that. The future utility of these agents is seriously compromised, and they face arrest every time they leave the country.

Second, Spataro makes clear that he took this case as far as the evidence at hand permitted. If he had evidence that higher-level officials at the CIA or NSC or other government agencies were involved, he would likely bring charges against them. I learned in earlier probes that Italian criminal investigators, collaborating with other European partners, have been actively seeking this information. They believe that those who oversaw the extraordinary renditions program should be prosecuted. In fact, Spataro asked for a 13-year sentence for Jeff Castelli, the head of the Rome station, because of his role in the Milan kidnapping. It’s reasonable to infer that he would seek an equally harsh sentence against other kingpins in the conspiracy. The New York Times notes that Stephen R. Kappes, who is said to have played a planning role, is now the number two in the CIA.

Third, this case is engendering a lot of discussion among scholars of the law of diplomacy about the selective decision taken by the United States to invoke diplomatic immunity. Some view diplomatic immunity as a simple process: if the paperwork is done and the diplomat is credentialed and recognized by the foreign ministry of the host country, he has immunity. Others say that if the person really isn’t a diplomat, and this is pure cover for a spy, the assertion is more doubtful, especially when the operative becomes enmeshed in a serious crime. In this case, the State Department pushed diplomatic immunity only for a handful of the defendants, including one (Jeff Castelli) who most obviously was not a diplomat. They scored some success. But the Italian prosecutors also think these claims are vulnerable. Prosecutor Spataro says he will appeal this decision. He is convinced that Castelli’s claim of diplomatic status is so obviously bogus, and his role in the crime is so clear, that the claim should be cast aside. How this plays out may significantly affect the practice of sending intelligence agents overseas under diplomatic cover. The posture taken by the United States suggests a sense of vulnerability about the claims made.

Finally, this case is a monument to the power and lasting influence of American advocacy. In 1946-48, the United States advanced for the first time the view that seizing individuals, holding them for prolonged period without recourse to law, and subjecting them to torture or humiliating treatment was a particularly serious crime–a crime against humanity. United States prosecutors, many of them from the Justice Department, brought charges against government officials who had done this, and secured convictions. Europeans were at first skeptical of these American views, but over time they came to embrace and support them. Today, the view is firmly held around the world that “disappearings” are a crime against humanity and thus not subject to statutes of limitation or capable of being ignored. The CIA just ran into this wall, and this should be a lesson for the Obama Administration: it shows what can happen when the United States fails to abide by the values it espouses.

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