A Gulfstream IV business jet similar to the one suspected of transporting Abu Omar during his rendition. (Eugene Butler/Wikimedia Commons)

[This post has been updated to reflect the fact that the European Court of Human Rights has ruled that Italy’s involvement in the rendition violated its obligations under the European Convention on Human Rights.]

News outlets are reporting that Portugal will surrender ex-CIA officer Sabrina De Sousa—a dual U.S.-Portuguese citizen—to Italy in connection with the extraordinary rendition and mistreatment of an Egyptian cleric known as Abu Omar.  The move reflects the fact that De Sousa has exhausted her final appeal in Portuguese courts. The subject of a European Arrest Warrant (more on this below), De Sousa will be the first U.S. government agent to face jail time abroad (a potential four-year sentence) for President George W. Bush’s extraordinary rendition program. The Italian criminal proceedings join other legal efforts before the European Court of Human Rights and elsewhere challenging the involvement of European states in the U.S. rendition program (see our coverage here), including yesterday’s judgment that Italy breached Abu Omar and his wife’s rights to be free from torture and cruel, inhuman and degrading treatment, right to liberty and security, right to family life, and right to a remedy.

By way of background, the underlying case stems from the 2003 rendition of an Egyptian cleric, Osama Mustapha Hassan Nasr (known as “Abu Omar”). Abu Omar was picked up on the street in Milan and flown from one NATO airbase to another and finally onward to Egypt, where he was allegedly interrogated and tortured. De Sousa claims she was supervising her son’s ski trip on the day Abu Omar was captured and that her only involvement in the rendition was as a translator between the “snatch team” and Italian authorities.

In 2007, Italy issued an indictment against more than 25 U.S. implicated personnel, mostly from the CIA, for their involvement in Abu Omar’s kidnapping and transfer to Egypt.  A version of the Italian complaint is available here. In 2009, De Sousa and her co-accused were tried and convicted in absentia   (Some Italian personnel were also prosecuted for their role in this rendition, although these cases were hindered by the application of the Italian state secrets doctrine). She alleges that the CIA barred her from communicating with her court-appointed lawyer in Italy and initially refused to hire a private lawyer on her behalf. As the Italian proceedings were underway, De Sousa unsuccessfully petitioned and sued then-Secretary of State Hillary Rodham Clinton and the Department of State/CIA for failing to invoke consular immunity (for “official conduct”) on her behalf. (Her complaint—which indicates she was a Foreign Service officer with the Department of State—is here; the court’s opinion is here).  Her FOIA requests for documents about the rendition were rejected (the pleadings are here). The guilty verdict was affirmed by an Italian appeals court in 2012, although a political decision was made not to seek the defendants’ extradition. As I explain here, this is not a universal jurisdiction cases, since the crimes are alleged to have been committed within Italian territory.

De Sousa holds U.S. and Portuguese citizenship and has family in Portugal. Nonetheless, it is unclear why she risked returning to Europe in 2015 knowing that she was subject to an outstanding arrest warrant and judgment; other American officials and personnel associated with President Bush’s program of extraordinary rendition have refrained from visiting Europe out of fear of arrest. De Sousa claims that most of her other co-accused were convicted under their aliases and so remain free to travel within Europe without immediate fear of capture. De Sousa has also alleged that she is being scapegoated, that the former Rome station chief (Jeffrey Castelli, also convicted in absentia after originally being given diplomatic immunity) exaggerated the threat posed by Abu Omar to advance his career prospects, and that others in Washington knew this was a weak case.

It appears that Italy originally indicated that they would guarantee De Sousa a retrial or an appeal, as is generally required by European human rights law. However, in June 2016, Italy indicated that her conviction was final, which seems to run counter to the case law of the European Court of Human Rights (see below), although the fact that she had actual notice and appointed counsel may explain this outcome.  In any case, Portugal appears to be proceeding with the extradition. Apparently, the White House is trying to intervene on her behalf.

In an interesting twist, Abu Omar has called for De Sousa to be pardoned on the grounds that she has been critical of the rendition program since retiring from the Agency in 2009. Although Abu Omar was also convicted in absentia in Italy in 2013 for being a member of a terrorist group, Egyptian courts eventually ordered his release. He and his wife received a domestic civil judgment in Italy of €1.5m in compensation for his mistreatment. The ECHR ordered Italy to pay an additional €115,000 for its breaches of the European Convention, including the right to be free from torture and other forms of cruel, inhuman and degrading treatment; the right to family life and privacy; the right to liberty and security; and the right to an effective remedy.

De Sousa’s Co-Accused

Prior to De Sousa being brought into custody in Portugal, it originally appeared that none of the personnel involved in Abu Omar’s rendition or mistreatment would face any jail time.

One of the U.S. defendants, Col. Joseph Romano, was pardoned by Italian President Giorgio Napolitano, who noted at the time that President Obama had made important changes to U.S. national security policy.  Romano, the only Department of Defense employee, was probably singled out because he should have benefited from a Status of Forces Agreement (SOFA) between Italy and the United States, which provided at Article 7 that the United States “shall have the primary right to exercise jurisdiction over a member of the force . . . in relation to . . . offences arising out of any act or omission done in the performance of official duty.” The ostensible violation of the operative NATO SOFA along with quiet diplomacy by the Department of Defense on Romano’s behalf and other forms of pressure likely explain the pardon.

Another defendant—former CIA station chief Robert Seldon Lady—lost a retirement home in Italy, which was seized by way of compensatory damages (civil law states more readily award money damages in the context of criminal trials).  In July 2013, Panama arrested Lady on the authority of an INTERPOL international arrest warrant (apparently the only Red Notice sought by Italy in connection with this rendition given the severity of the sentence against him).  Panama later released Seldon before Italy could request his extradition, and he reportedly returned to the United States. Although Italy & Panama do not have an extradition treaty, the latter could have sent him to Italy without such a treaty in place.

Extradition in Europe

De Sousa’s surrender to Italy is made possible by the European system of mutual legal assistance and mutual recognition of judgments in criminal matters—a product of European integration.  In 2002, the system of formal extradition, which was undergirded by the 1957 European Convention on Extradition, was abolished (see the EU Framework Decision of June 13, 2002). The European Union replaced it in 2004 with a much simpler and more efficient process allowing for the surrender of convicted or accused individuals between judicial authorities upon the issuance of a European Arrest Warrant (EAW).

Although not without some lingering concerns when individuals are sent to states where due process protections are not fully entrenched, the EAW system makes the transfer of criminal suspects and defendants a rather summary judicial process, removing opportunities for the exercise of political discretion, influence, or interference. The country with custody of the accused may resist surrender only if it would be incompatible with the European Convention of Human Rights and Fundamental Freedoms.  In addition, and for the most part, member states apply the double-criminality principle, which requires that both states recognize the crime for which the individual is charged. Double criminality can be dispensed with, however, for certain serious offenses, including terrorism and human trafficking.  The EAW system is still being tinkered with to, for example, reduce the number of EAWs being issued for minor crimes and ensure equal procedural protections within all EU countries.

International Human Rights & Trials in Absentia

Italy originally prosecuted De Sousa and her co-accused in absentia, which is to say without their presence at trial. Many inquisitorial, civil law systems in Europe allow for trials in absentia so long as certain procedural protections are in place.  Trials in absentia are less frequent in common law jurisdictions. In the United States, for example, such trials are only allowed when the defendant has knowingly and voluntarily waived his or her right to appear after the trial has begun or if the defendant is disruptive (see Federal Rule of Criminal Procedure 43 and Crosby v. U.S.).

Trials in absentia raise some human rights concerns, but they are not per se unlawful under human rights law.  Article 14 of the International Covenant on Civil and Political Rights (ICCPR)—which enjoys widespread ratification—obliges states to respect and ensure a range of due process rights, including criminal defendants’ confrontation rights, right to counsel, and right to be present at trial.  Specifically, Article 14(3)(d) states that everyone shall be entitled “to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing…”

The Human Rights Committee, a treaty body charged with enforcing the ICCPR, notes the need for special protections during trials in absentia in its General Comment 13 (akin to an advisory opinion):

When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defense is all the more necessary.

Likewise, Article 6(3) of the European Convention on Human Rights and Fundamental Freedoms (binding on both Portugal and Italy) provides that anyone charged with a criminal offense has the right “to defend himself in person or through legal assistance of his own choosing.”

Italy’s practice of in absentia trials was at issue in the case of Colozza v. Italy before the European Court of Human Rights (ECHR). In that case, the defendant was at large. After publicizing the arrest warrant against him and appointing counsel, Italy proceeded to prosecute and convict him contumacia (as in absentia proceedings are there known). The ECHR determined that Article 6 had been breached given that it could not be shown that: the defendant had sufficient notice of the proceedings against him, the authorities had undertaken adequate steps to track him down, he was trying to evade justice, or he had unequivocally waived his right to be present at trial. Likewise, in Krombach v. France, the ECHR confirmed that in absentia proceedings are not incompatible with the right to be present at trial so long as the accused may subsequently obtain a “fresh determination of the charges.” Accordingly, ECHR will allow in absentia proceedings only under the following circumstances:

  • defendants must be given notification of their impending trial;
  • defendants must unequivocally and explicitly waive their right to be present at trial (and silence from the defendant after notice has been attempted does not constitute a waiver);
  • defendants must have the right to representation; and
  • defendants must be able to subsequently obtain a retrial.

In Medenica v. Switzerland, however, the ECHR found no breach of the European Convention when the defendant was represented by counsel and had full notice of the proceedings.

In general, international tribunals disallow in absentia trials unless the defendant is disruptive or absconds after making an initial appearance (see, e.g., Article 63 of the International Criminal Court Statute and Rule 60 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone).  A notable exception is found in the Special Tribunal for Lebanon, which is prosecuting four Hezbollah operatives for the assassination of former Prime Minister Rafik Hariri of Lebanon in absentia.  (Charges against a fifth defendant have been dismissed upon evidence of his death in Syria).  For a discussion and critique, see this article by Chris Jenks.

Additional resources on the De Sousa case are available here:

An Ex-CIA Officer Speaks Out: The Italian Job, Vice News (November 3, 2016) (28:00)

The CIA Officer Left Behind by Hillary Clinton, Vice News (June 13, 2016) (6:06)

Interview with Sabrina De Sousa, CIA officer, on Osama Mustapha Hassan Nasr’s rendition, McClatchy DC (July 27, 2013) (5:54)

Interview – Sabrina de Sousa, HARDTalk (September 16, 2016) (23:34)

Ex-CIA officer faces extradition, seeks Trump’s help, Tucker Carlson, Fox News (January 16, 2017) (5:17)