Europe tackles torture allegations that were swept aside in U.S.

September 21, 2012

When CIA agents nabbed an Egyptian cleric on the streets of Milan, Italy,  and whisked him off for interrogation in a country that turned a blind eye to torture, they violated international law and were justly sentenced to prison, Italy's highest court has ruled in a landmark case against the U.S. counter-terrorism tactic known as "extraordinary rendition."

The final judgment by Italy's Court of Cassation on Wednesday upheld the convictions of 23 American operatives for their roles in the 2003 abduction of Hassan Osama Nasr, also known as Abu Omar. Their five- and seven-year prison terms meted out by a lower court three years ago were not only upheld but extended by two years, although it appeared unlikely that  any of the convicted U.S. operatives would be surrendered to serve their time.

Human rights advocates concede that  the legal judgment against rendition is mostly symbolic. Unless Italy seeks extradition -- something Washington has been fighting fiercely, leaked diplomatic cables suggest -- the only punishment the Americans are likely to face is the threat of arrest if they travel to Europe or nations elsewhere that might elect to fulfill commitments under the U.N. Convention Against Torture.

Despite the limited reach of the Italian court's decision, rights advocates have applauded the ruling as evidence that European courts are willing to bring to justice those who violate the law in the so-called war on terror, even though the U.S. government has declined to do so.

Milan prosecutor Armando Spataro, who brought the case against the Americans and a few Italian intelligence agents complicit in Nasr's abduction, declared that the high court ruling is a definitive judgment that rendition is "incompatible with democracy." He said a government decision on whether to seek extradition wouldn't be expected until the high court issues its full written opinion, which could take two to three more months.

The CIA did not respond to a call and email from The Times asking for comment on the Italian court ruling and whether the agency is advising the convicted Americans against foreign travel.

The United States has an extradition treaty with Italy, and any request for Washington to deliver the Americans to serve their prison terms would be difficult for the U.S. government to ignore, said former Air Force Col. Morris Davis, a former chief prosecutor at the Guantanamo Bay war-crimes tribunal who was forced to retire after criticizing U.S. handling of terrorism suspects.

"If the Italians were to submit an extradition request, there would be no legal basis for us not to comply," Davis said. "I’m sure there’ll be a lot of behind-the-scenes diplomatic wrangling on the Italian government not to submit the request."

The Italian case isn't the only one threatening to spotlight legal breaches by American agents since Sept. 11, Davis said. He pointed out that most of the legal actions abroad in defiance of the Obama administration's decision to "look forward, not back" on counter-terrorism excesses are coming from allied countries, "not Iran or Cuba or Venezuela."

A Spanish judge in 2009 ordered an investigation of torture allegations at Guantanamo Bay.

Polish authorities are demanding full disclosure of the former government's complicity in CIA detention and interrogation of rendition subjects at a remote secret prison there. The British government has paid compensation to citizens and legal residents released after abusive CIA interrogations, including plaintiffs whose cases were thrown out of U.S. courts when the George W.  Bush and Obama administrations claimed that to try them would expose "state secrets." In Canada, the government has apologized to and compensated Maher Arar, a citizen nabbed by U.S. agents while traveling home from Tunisia in 2002 and sent to Syria for "enhanced interrogation."

Nasr, an Egyptian-born imam, was suspected of recruiting men from his Milan mosque to fight U.S. and other foreign troops in Iraq and Afghanistan, the impetus for his Feb. 17, 2003, abduction and delivery to a secret interrogation site in his homeland. He said he was beaten, bound and blindfolded for months in a cold cell and subjected to electrical shocks to his genitals while being questioned.

A lower Italian court found the 23 Americans guilty in 2009 and sentenced former Milan CIA station chief Robert Seldon Lady to seven years in prison and the others to five years' detention. The high court stiffened those sentences by two years and sent back to the lower court several cases against Italian agents involved in the Nasr rendition that had been dismissed on immunity claims.

While the Italian judiciary, like that of the United States, has no power to enforce its rulings if the government fails to request extradition, the rendition judgment serves a powerful symbolic purpose in branding those who would violate laws against torture as criminals, said Jamil Dakwar, director of the human rights program of the American Civil Liberties Union. He pointed out an array of other legal challenges to rendition and warrantless detention brought by former terrorism suspects that are making their way through foreign and multinational courts.

The Italian ruling this week, Dakwar said,
"sent a strong message that if the United States fails to hold accountable its own officials for human rights violations that European countries will do so."

Photo: A police officer stands guard at the Milan trial of 23 Americans involved in the 2003 abduction of an Egyptian cleric. European and international courts are prosecuting cases of alleged torture of terrorism suspects despite the U.S. government's policy against exposing its counter-terrorism practices to the judgment of the courts. Credit: Giuseppe Cacace / AFP/Getty Images
Insert: Egyptian-born cleric  Hassan Osama Nasr, known as Abu Omar, says he was kidnapped in Milan and tortured in an Egyptian prison. Credit: Amr Nabil / Associated Press

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