Italian Court Rules in Favor of National Security

Italy’s Constitutional Court has vastly weakened the indictments against 26 Americans and 8 Italians who were allegedly involved in a CIA  “extraordinary rendition” of a suspected terrorist captured and removed from Italy secretly in 2003.

The case results from the alleged kidnapping of suspected terrorist, Hassan Mustafa Omar Nasr, who also uses the name Abu Omar.

The court ruled March 11 that the trial court and prosecutors had violated state secrecy laws in conducting the world’s first criminal investigation of an extraordinary rendition case. The inquiry into the kidnapping of an Egyptian terrorist suspect in Italy has drawn international attention.
This is the second time a court ruled in favor of national security in a rendition case. Last year, an American federal court dismissed an extraordinary rendition case under the American equivalent “state secrets” doctrine.
An Italian judge issued indictments against 26 American and eight Italians — all members of the CIA and SISMI (Servizio per le Informazioni e la Sicurezza Militare), the Italian military and defense intelligence bureau — for their role in a joint CIA-SISMI counterterrorist operation.
Among the high profile defendants are Niccolo Pollari, the former head of SISMI, his former deputy Marco Mancini, ex-Rome CIA station chief Robert Seldon Lady and ex-Milan CIA chief Jeff Castelli.

According to the Constitutional Court — often referred to as the Consulta because it is housed in the Palazzo della Consulta in Rome — the trial courts exceeded their authority and violated national security laws in their efforts to prosecute what they claimed to be an unlawful abduction of a suspected terrorist.
The ruling said that the prosecutor’s office violated government secrecy by obtaining the identities of SISMI agents and by acquiring items not related to the abduction investigation but instead to the relationships between Italian intelligence agents and their foreign counterparts.
The Consulta became involved in this case because of the “separation of powers” issue. It is the court that considers the constitutional legitimacy of all acts and laws, as well as conflicts between the branches of government, between the state and regional governments, and allegations brought against the Head of State. The 15 judges who serve on the court are selected from current and retired high court judges, lawyers of not less than 20 years of practice and law professors. They serve a nine-year term.

Therefore, it is not a court in the precise sense that the United States Supreme Court is. It is like the Supreme Court in that its decisions cannot be appealed. It is unlike the Supreme Court because it is not the ultimate appellate court for ordinary cases.
Its purpose in this instance was to pass judgment regarding the use of classified information (segreto di Stato). It ruled to:

1) Accept the government’s request to invalidate the oral testimony of witnesses.
2) Partially reverse the request and the decree for the trial of the defendants that was based on the acts covered by state secrets.
3) Reject the request of the government to invalidate the wiretaps of the SISMI agents and to censor the evidence illegitimately gained from the interrogation of Italian intelligence members.
Basically, the Consulta confirmed that there is an interest in preserving state secrecy regarding the relations between the CIA and SISMI. Therefore, there will not be an investigation on the possible participation of SISMI in the abduction of Abu Omar.
However, damage already has been done because of this case.

The Italian intelligence service has been “jumped,” and many agents have been “burned.” This means that the confidentiality of the SISMI has been compromised and that the agents, because their names have been made public, can’t be used in future secret operations.
After the ruling was announced, some politicians expressed their outrage about the violation of national security. Members of Premier Silvio Berlusconi’s People of Freedom Party, Maurizio Gasparri and Fabrizio Cicchitto, said the prosecutors should be punished for “damaging the Italian secret service, Italy’s reputation and the fight against terrorism.”

Opposition to the probe has been bipartisan. Both the rightwing Berlusconi government and the leftwing government of his predecessor, Romano Prodi, have stated that the inquiry compromised relations with foreign security agencies.

The trial is scheduled to continue March 18. The exact consequence of the ruling won’t be realized until the explanation of the Consulta verdict is published. Italian law requires judges to provide a written explanation of their verdicts. This is done because citizens have the right to know the rationale leading to the decision.