Portuguese courts continue to clear the path for the extradition of former CIA agent Sabrina De Sousa to Italy. In 2009, Italy convicted De Sousa and 22 other US officials (all but one of them were CIA agents) in absentia for their role in the abduction of terrorism suspect Osama Moustafa Hassan Nasr (also known as Abu Omar) from Milan in 2003. Abu Omar was subsequently rendered to Egypt where he was reportedly tortured. Last month, Portugal’s Supreme Court upheld a lower court’s order approving the extradition, and a judge from Portugal’s Constitutional Court subsequently ruled that there is no constitutional ground to overturn that decision. (De Sousa can still seek appointment of a three-judge panel to review the judge’s ruling.) The Portuguese court rulings increase the possibility that, for the first time, a US official will face jail for participating in the CIA’s rendition program. De Sousa was originally sentenced to six years’ imprisonment.

At the time of the kidnapping, De Sousa was an undercover CIA agent working as a registered US State Department officer at the US consulate in Milan. She left Milan in 2004, well before the Italian criminal proceedings began, and resigned from the CIA in 2009 after a failed attempt to persuade the CIA to grant her immunity. A dual American and Portuguese citizen, De Sousa eventually moved to Portugal to be closer to relatives. Portuguese authorities briefly detained De Sousa in October 2015 at a Lisbon airport pursuant to a European arrest warrant and confiscated her passport as she was attempting to visit her elderly mother in India.

In approving her extradition, Portuguese courts have insisted that De Sousa be afforded another trial in Italy—or the chance to appeal with new evidence—and the ability to call US and Italian witnesses, since she was tried in absentia. They have further maintained that De Sousa be permitted to serve any sentence in Portugal.

Why De Sousa Would Likely Not Be Entitled to Immunity

In addition to questions about the effect of in absentia trials, the case raises potential issues surrounding the immunity of consular officials. Diplomatic and consular immunity are legally distinct categories, even though conceptually they are similar. Diplomatic immunity is addressed by the 1961 Vienna Convention on Diplomatic Relations; consular immunity is addressed in a separate agreement, the 1963 Vienna Convention on Consular Relations.

Diplomatic functions involve state-to-state relations at the national level and are performed out of the embassy in the capital of the “receiving state” — the country where the diplomats are posted. Consular functions include the protection and supervision of nationals of the “sending state,” so they necessarily require contact with regional and local officials throughout the country. Embassies typically have a consular section, but in larger countries, additional consulates are established by mutual agreement with the receiving state at remote locations in designated “consular districts.” Because diplomats are assigned only to the capital, a person posted to a consulate outside the capital, as De Sousa was at the time of Abu Omar rendition, can have a credible claim only to being a consular official, and cannot be a diplomat.

In terms of immunity, the key difference between an actual diplomatic officer and a consular officer is that the former is completely immunized from both criminal and civil liability for all conduct, both official and unofficial. This is why nations have always taken advantage of diplomatic cover to post intelligence officials in their embassy to run spy networks in foreign countries — at worst, such officials, even when caught in totally compromising positions, can only be declared persona non grata and required to leave the country. This immunity belongs to the sending state, which is free to waive it. (There are a few other situations in which diplomats can lose their immunity for unofficial conduct as a matter of equity for private citizens of the receiving state, for example, by engaging in private real estate transactions rather than take advantage of embassy-provided housing.) Consular immunity, in contrast, extends only to “official” conduct for both criminal and civil matters.

Because the definition of torture in the Convention against Torture (CAT) requires “official” conduct as part of the crime, De Sousa could claim she should be covered for this conduct by consular immunity. But this argument would likely fail because, with respect to consular immunity, that “official” conduct needs to fall within the scope of permissible consular functions as defined by the 1963 Vienna Convention, and the CAT makes clear that legitimate state functions cannot involve torture.

The Case Against Accountability

There nonetheless appear to be extenuating circumstances based on De Sousa’s accounts in the press. (See, for example, here and here). De Sousa has denied she played any real role in the kidnapping. De Sousa, who speaks Italian, claims she merely served as an interpreter between the CIA and its Italian counterparts at an early meeting to discuss the logistics of rendition. Instead, De Sousa maintains the former CIA Station Chief in Rome, Jeffrey Castelli, was the mastermind of the operation, exaggerated Abu Omar’s threat to win approval for the rendition, and misled his superiors that the Italian military intelligence had agreed to the operation. De Sousa has also implicated top US officials, including former CIA Director George Tenet and former White House National Security Advisor Condoleezza Rice. Additionally, De Sousa claims she had originally wanted to contest the charges in Italy, but was denied permission.

De Sousa’s case thus suggests the potential inequity of having someone with a marginal role in the crime suffer imprisonment while those most responsible remain free. Italy has not demanded the extradition of the CIA officials from the United States and Italy’s president also recently pardoned two of those agents, including former Milan CIA station chief Robert Seldon Lady. Italy’s highest court, moreover, overturned the conviction of five Italian military intelligence agents implicated in the rendition on state secrecy grounds. That decision helped prompt a recent judgment against Italy by the European Court of Human Rights (ECtHR), which held Italy liable for failing to effectively prosecute and remedy the human rights violations that resulted from Abu Omar’s abduction. (See Jonathan’s earlier post on the ECtHR ruling here.)

The Stronger Case for Accountability

But other considerations support De Sousa’s extradition. Italian prosecutors have shown calls were made from De Sousa’s phone to one of the kidnappers several months before and around the time of the rendition. While De Sousa’s basic narrative may prove truthful, she has an incentive to minimize her role. The purpose of a criminal trial is precisely to resolve such factual contests. Extenuating circumstances, moreover, can be taken into account at sentencing.

One effect of the Abu Omar case and other investigations into CIA torture and rendition has been to restrict the travel of US officials who fear they might be arrested if they went to Europe. The Abu Omar prosecution, in particular, led to the issuance of European arrest warrants. If that relatively minor consequence can be negated, it would reinforce both the perception and reality of impunity for gross human rights violations.

De Sousa’s extradition, to be sure, would be on firmer ground if it were the first step of a larger accountability process. (Recall that the International Criminal Tribunal for the former Yugoslavia initially started with small fish like Duško Tadić, before pursuing more senior officials). But if criminal proscriptions are to have meaning — and it is difficult to imagine a more egregious violation of the anti-torture norm than abducting someone from a street in broad daylight and sending them to a secret prison in another country — there need to be consequences.

Further, beyond providing at least some measure of criminal responsibility, a new trial could expose new details about the CIA’s role in the Abu Omar rendition. And for De Sousa, who has already filed a Freedom of Information Act suit for documents showing that the rendition was approved by the CIA and senior government officials, a trial would provide a chance to clear her name, albeit at no small personal risk.