Italy's highest criminal court on Wednesday upheld the convictions of 23 Americans in the abduction of an Egyptian terror suspect from a Milan street as part of the CIA's extraordinary rendition program, paving the way to possible extradition requests by Italian authorities.
The ruling by the Court of Cassation marks the final appeal in the first trial anywhere in the world involving the CIA's practice of abducting terror suspects and transferring them to third countries where torture is permitted.
The Americans were convicted in absentia following a three-and-a-half-year trial, and have never been in Italian custody. They risk arrest if they travel to Europe and one of their court-appointed lawyers suggested that the final verdict would open the way for the Italian government to seek their extradition.
"It went badly. It went very badly," lawyer Alessia Sorgato said after the court announced its decision after a day of deliberations. "Now they will ask for extradition."
Milan Prosecutor Armando Spataro, one of Italy's top anti-terrorism magistrates who shaped the prosecution, hailed the top court's decision, saying it was tantamount to a finding that extraordinary rendition "is incompatible with democracy."
The CIA declined to comment. The court will make public its reasoning behind the decision in a written document in about 90 days. "We will see if the minister of justice intends to request extradition, since the final verdict poses this issue," Spataro said.
The Americans and two Italians were convicted in November 2009 of involvement in the kidnapping of Osama Moustafa Hassan Nasr, also known as Abu Omar, on Feb. 17, 2003 - the first convictions anywhere in the world against people involved in the CIA's practice of abducting terror suspects and transferring them to third countries where torture was permitted. The cleric was transferred to U.S. military bases in Italy and Germany before being moved to Egypt, where he says he was tortured. He has since been released.
Those convicted include the former Milan CIA station chief, Robert Seldon Lady, whose original seven-year sentence was raised to nine years on appeal. The other 22 Americans, all but one identified by prosecutors as CIA agents, also saw their sentences stiffened on appeal, from five to seven years.
Previous Italian governments, both from the center-left and from the center-right had declined to act on prosecutors' requests during trial to extradite the American suspects, most of whom had court-appointed lawyers the defendants never met. While some of the defendants in the case were known figures attached to the U.S. Embassy or Consulate in Milan, many of those named in the trial are believed to have been aliases, which would hinder extradition efforts.
Premier Mario Monti, an economist from outside of politics, is leading a government of technocrats concentrated on saving Italy from financial disaster. Since any extradition request can take months to run its course, and elections are due in spring, it could conceivably be a new government to have the final say on whether to press for extradition of the Americans.
Among those whose sentence was upheld was U.S. Air Force Col. Joseph Romano, who was security chief at Aviano Air Force base where the Egyptian cleric was driven from Milan before being taken by plane to Germany and eventually Egypt.
Romano's lawyer, Cesare Bulgheroni, said he would appeal the verdict to the EU human rights court in Strasbourg on the basis that Romano was never formally notified of the charges against him, and that lower courts had rejected some witnesses. Romano was one of only two Americans who received permission to hire his own lawyer during the original trial.
The court also ordered new appeals trials for five Italian intelligence agents, including the former head of military intelligence, Nicolo Pollari. They had been acquitted by lower courts because of state secrets. But the Cassation Court's ruling indicates that the lower appellate court, which will hear their case again, needs to give more scrutiny to the state secrecy line of defense.
Prosecutor Spataro said the ruling on the five Italian secret services agents "seems to agree with what we said, that state secrets cannot be cause for impunity, and that a judge needs to decide case by case what evidence can be submitted" to the trial court.
During the original trial, three other Americans were acquitted: the then-Rome CIA station chief Jeffrey Castelli and two other diplomats formerly assigned to the embassy due to diplomatic immunity. Prosecutors appealed the acquittal, as they can in Italy. That appeal is still pending in Milan.
However, the courts did not accept the defense for Sabrina de Sousa, who was a foreign service officer at the U.S. Consulate in Milan facing a seven-year sentence.
Italian prosecutors contended that de Sousa, a naturalized U.S. citizen born in India, was a CIA officer working under diplomatic cover and was one of four main U.S. officials responsible for coordinating the kidnapping. De Sousa denies having been a CIA agent and said she was on vacation at the time of Nasr's abduction and had no role in it. She hired a lawyer to represent her in the final months of the Milan trial, and later unsuccessfully sued the U.S. government in Washington for diplomatic immunity.
De Sousa, who said she left the foreign service under pressure in 2009, said she was disappointed in the ruling because her team felt strongly that the case was circumstantial. She said the real push now should be to find out the officials in Washington ordered the extradition of an Egyptian cleric in the middle of an Italian investigation.
"I have been fighting this on my own. I have nothing to hide. I have been repeatedly saying I had nothing to do with the planning and execution. I have been by myself and most importantly I have been trying to engage Congress," de Sousa said by telephone. "The whole trial has focused on lower level officials and really took away the focus on who should be accountable, the State Department officials and the CIA officials around in 2003."
"The United States has now buried a really bad chapter that has tarnished U.S. history," she said. "This is exactly what creates anti-American sentiment around the world."
Her U.S. lawyer, Mark Zaid, said in a statement that the decision harms the integrity of the system regarding diplomatic immunity. "Diplomats around the world should consider themselves at greater risk today," Zaid said in an emailed comment.
The American Civil Liberties Union in New York, which has challenged the U.S. government's rendition policy, said the ruling by Italy's top criminal court highlights "lack of accountability" in U.S. courts for crimes committed by government officials in the name of national security. "Though legal questions remain, such as the validity of trials in absentia, American officials would be wise to heed the Italian court's message that those who violate the law will be called to answer," Jamil Dakwar, director of the ACLU Human Rights Program, said in statement.