When the European Court of Human Rights holds a long-awaited hearing Tuesday concerning the abduction and torture of a radical cleric known as Abu Omar, two people in particular will be hoping to see results from their many years of effort to hold the CIA and Italy accountable.
One is Abu Omar himself.
The other is a former CIA officer who was convicted of kidnapping him.
The hearing, scheduled to take place in Strasbourg, France, involves one of the CIA's most infamous "extraordinary rendition" cases, a highly controversial post-9/11 counterterrorism program in which suspected terrorists were secretly captured in one country and sent to another to be harshly interrogated.
Lawyers for Omar, whose real name is Osama Mustapha Hassan Nasr, will press judges to find Italy culpable for a wide range of violations under the European Convention of Human Rights in connection with Omar's disappearance off a Milan street 12 years ago at the hands of the CIA and Italian Military Intelligence and Security Service (SISMI). Terrorism suspects who were held at CIA black site prisons in Europe — where they say they were tortured — have frequently used the human rights court to seek accountability against European governments they allege were complicit.
Sabrina De Sousa is one of nearly two-dozen CIA officers who was prosecuted, convicted, and sentenced by Italian courts in absentia in 2009 for the role she allegedly played in Omar's kidnapping. It was the first and only criminal prosecution that has ever taken place related to the CIA's rendition program, which involved more than 100 suspected terrorists and the assistance of dozens of European countries.
The Abu Omar rendition merited a brief mention in the still-classified 6,700-page Senate Intelligence Committee report on the CIA's torture program completed last December, a US official who read the report told VICE News. But the official would not elaborate on what the Senate report said about the operation.
Like Omar, De Sousa, who lives in Washington, DC, is also on a mission to hold the CIA accountable for the cleric's rendition and torture. In a series of interviews with VICE News over the past seven months, she insisted she had nothing to do with his kidnapping, despite an Italian prosecutor's claim that he obtained evidence to the contrary. Though she says she didn't take part in the operation, she seems to be knowledgeable about how and why it was planned.
"When I got convicted, I went back and looked through the CIA's cables…" about the rendition, she said. "I firmly believe the truth has to come out…. It should never have been a rendition."
De Sousa acknowledged that in 2002 she worked as the interpreter for the rendition team that visited Milan during the pre-planning stages of the operation. But when Omar was snatched in 2003, De Sousa said she was on a ski trip with her son and had already been "cut out" of the operation. She said Omar did not fit the threshold for a rendition because he was not an "imminent threat" to national security.
VICE News interviews De Sousa and Italian officials about the rendition in our documentary 'The Italian Job.'
"He was a nobody," she told VICE News. She believes his rendition was a career-enhancing move made by the CIA's Rome station chief, Jeffrey Castelli, who sought and received approval for it from CIA headquarters. Castelli, who did not respond to VICE News's requests for comment, is now the executive vice president of the private security firm Endgame, which is based in Arlington, Virginia.
De Sousa quit the CIA in 2009 after 16 years at the agency; since then, she has worked obsessively to try and clear her name — she has attorneys in the US and abroad who have been working to get Italy to exonerate her — and expose what she says is a CIA cover-up tied to Omar's "illegal rendition" and torture in Egypt. Meanwhile, Omar, who first sought redress through the Italian judicial system, is hoping the European Court of Human Rights will agree that he is owed a measure of accountability. He has waited six years for the panel to hear his case.
His attorneys contend that Italy has not compensated Omar for the torture he says he endured while imprisoned in Egypt. They also say that Italy has failed to punish the Italian security officials and CIA officers who were found to be responsible for his rendition.
"He is going to the European Court of Human Rights, the most sophisticated and the best human rights system that we have anywhere in the world, to say, 'I have not had an effective remedy for what happened to me,'" Julia Hall, a counterterrorism expert at Amnesty International, told VICE News.
Chris Jenks, a law professor at Southern Methodist University's Dedman School of Law in Dallas, Texas, says Abu Omar is seeking to embarrass Italy:
"Increased media attention and judicial scrutiny also make it less likely that Italy, or any European country, would cooperate with the US on an intelligence operation within the territory of a European country again."
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The Abu Omar rendition has been written about exhaustively. But to date, neither the CIA nor the Bush and Obama administrations have acknowledged that the rendition ever took place or that it was an operation instigated by the agency.
The CIA would not comment to VICE News on the Abu Omar rendition or on De Sousa's claims of a "cover-up" and her alleged mistreatment by the agency. In a recent interview with VICE News, the CIA's former deputy director, Michael Morell, also declined to discuss Abu Omar or De Sousa.
"I'm not going to talk about any names or any alleged operations," Morell said.
The cleric, who was rumored to have been one of the CIA's top informants years before 9/11, was a member of the radical Egyptian group Gama'a al-Islamiyya, designated as a terrorist organization by Egypt and the US in 1997, when the group allegedly carried out the infamous massacre of 62 people at Luxor. Omar left Egypt in the 1990s and moved to Albania, where he was suspected of plotting an attack on a visiting Egyptian minister (the attack never took place), and subsequently expelled. He resettled briefly in Germany and then moved to Milan, where he was granted political asylum in early 2001.
'The Italian trial blatantly disregarded international law and treaty obligations, and the conduct of the in absentia proceedings simply followed one alleged human rights abuse with another.'
After 9/11, Italy's Division of General Investigations and Special Operations (DIGOS) began monitoring Omar, who was the imam at a radical mosque where he gave fiery anti-American sermons and was suspected of recruiting jihadists to fight Americans in Iraq and Afghanistan. The law enforcement agency had also been secretly passing intelligence they collected about the cleric to the CIA's station chief in Milan, Robert Seldon Lady. He too was one of the CIA officers convicted by Italy in the Abu Omar case; when prosecutors searched his villa after he was indicted, they found a photograph of Abu Omar that was taken one month before his abduction.
On February 17, 2003, as 39-year-old Omar was walking to his mosque, he was approached by an Italian police officer and longtime CIA informant named Luciano Ludwig Pironi, who asked to see his passport. A white van then pulled up and Omar was shoved inside. He was taken to Aviano Air Base, located 50 miles north of Venice and home to the US Air Force's 31st Fighter Wing. From there, he was flown to Rammstein Air Base in Germany, and then to Cairo, where the CIA turned him over to Egyptian intelligence officials for interrogation in what De Sousa said was "torture by proxy."
During the height of the CIA's rendition program, the agency rendered several suspected terrorists to Egypt, a country with a well-documented history of using torture to extract confessions.
After Abu Omar disappeared, his wife, who is also a party to the human rights complaint filed at the European Court of Human Rights, called police trying to track down her husband, and an investigation into his disappearance was subsequently launched. A CIA officer, using a cover story to explain what happened to the imam, told Italian officials Abu Omar may have fled into the Balkans.
In April 2004, Abu Omar emerged from 14 months of detention in Egypt, having been placed on house arrest. Egyptian authorities released Omar on the condition that he was not to discuss his detention with anyone, which he said he had agreed to. But Omar made a phone call to his wife — she hadn't heard from him in more than a year — and another imam immediately after he was released from detention.
A summary of Abu Omar's complaint at the European Court of Human Rights says he "claims to have been subjected to the martaba torture, whereby an electric current was passed through a wet mattress to which he was tied."
A few weeks after the phone calls, Egyptian authorities again imprisoned Abu Omar, this time for three more years. He says he was placed in solitary confinement, where he continued to be interrogated and subjected to torture over his alleged ties to terrorism. He was finally released in 2007 without charge and sent to live with his family in Alexandria, Egypt, barred from ever leaving the country.
He immediately announced that he intended to sue the US and Italian governments.
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De Sousa claims that Egypt was forced to release Abu Omar because the CIA did not have any prosecutable evidence against him to present to the Egyptians about his alleged ties to terrorism. She said this is the point at which the CIA then engaged in a "cover-up."
But according to the Italian prosecutor's arrest warrant application, there is another reason Abu Omar was rendered to Egypt. The CIA wanted Egypt to turn him into an informant again so he could provide intelligence about any planned opposition to America as it was gearing up to invade Iraq. If Abu Omar had agreed, he would have been released and returned to Egypt. But he refused. The source of the prosecutor's claims was Reda, the imam whom Abu Omar called after he was released for the first time, and an Italian police officer who claimed that a CIA officer explained to him this was the purpose of the rendition.
An attempt by the CIA to get a foreign intelligence service to torture a suspected terrorist in an attempt to turn him into an informant would not be without precedent. In late 2001, the US rendered accused terrorist Ibn Shaykh al-Libi to Egypt, where he was interrogated and tortured by Egyptian and American intelligence officers about chemical and biological weapons training Iraq provided to al Qaeda. The information Libi provided was used by the Bush administration to justify its invasion of Iraq. Libi later recanted.
'I am going to make Obama admit that this rendition took place.'
Not long after Abu Omar was released in 2007, an Italian court issued indictments against 26 Americans — 25 CIA officers and an Air Force Colonel who was later pardoned — and officials from Italian's intelligence services alleged to have orchestrated Abu Omar's rendition.
Twenty-three of the Americans, including De Sousa, were convicted in absentia in November 2009 on kidnapping charges and ordered to pay Abu Omar 1 million euros, and to pay his wife 500,000 euros. Their sentences were upheld on appeal three years later. (Italy's President, Giorgio pardoned the Air Force colonel in 2013.)
In August of 2009, Abu Omar's attorneys filed their application, alleging human rights violations, with the European Court of Human Rights. At the same time, De Sousa stepped up her own efforts.
Jenks, the law professor, noted that the Italian government never asked for the US to extradite the CIA officers, a point he thinks Abu Omar's attorneys will raise at the hearing next week.
"Omar may be seeking to have the European Court try to order the Italian government to ask for the US to surrender the agents," Jenks said. "To do that he would argue that Italy, in not forwarding the indictments and in not requesting the US surrender the CIA agents, has failed to take all the measures available to Italy to ensure respect for Omar's rights under the European convention."
Jenks also noted that in absentia trials are deemed to be human rights abuses in their own right under the European Convention of Human Rights.
"The Italian trial blatantly disregarded international law and treaty obligations, and the conduct of the in absentia proceedings simply followed one alleged human rights abuse with another," he and his colleague Eric Talbot Jensen wrote in a 2010 Harvard law review article about the case. "The flawed in absentia trials of the CIA agents in the Abu Omar case constitute yet another violation of the European Convention…. While Italy may have spoken out against extraordinary rendition, the price for doing so was Italy's own commitment to the rule of law and human rights."
Further underscoring that point, while Abu Omar's application to the European Court of Human Rights was pending, Italy convicted him in absentia and sentenced him to six years in prison on terrorism charges.
However, the authors noted that De Sousa would be unable to argue that her in absentia trial was unfair because she secured a private attorney, and the European Convention says in absentia proceedings would not violate a provision in the convention when the accused has hired an attorney.
Abu Omar's attempts to hold Italian security officials accountable unraveled when Italy's Constitutional Court ruled in March 2009 that evidence used by prosecutors to secure the convictions were protected by "state secrets." It was in July 2006, when the president of the Council of Ministers, taking a page out of the Bush and Obama administrations' playbooks, said that certain information and documents sought by the prosecutor were protected by "state secrets."
In his complaint to the European Court of Human Rights, Abu Omar said the use of state secrets by Italy has effectively "prevented the punishment of those responsible and compensation for the damage [he] suffered" and "is contrary to the procedural obligations under" the European Convention on Human Rights.
"The whole concept of state secrets did not even exist in Italy or across Europe until the US started using it so repeatedly in US courts" in cases like Abu Omar's, said Julia Hall, a counterterrorism expert at Amnesty International who has worked extensively on the Abu Omar case. "In Italy they just made it up out of whole cloth. This goes to show how US policy on the war on terror has infected Europe. This will be a key issue in the [European Court of Human Rights] process. Abu Omar can say the application of this state secrets privilege has obstructed justice."
The deputy chief counterterrorism prosecutor in the case, Armando Spataro, declined to comment when reached by VICE News. Last month, he gave a PowerPoint presentation to the United Nations Interregional Crime and Justice Research Institute summarizing his investigation into the rendition. VICE News obtained a copy of the 79 PowerPoint slides, which includes new details about the evidence Spataro obtained during the course of his probe that he says implicates CIA officers, Italian intelligence officials and others. The PowerPoint slides say the Italian government interfered with his prosecution and thwarted his efforts to hold individuals accountable for Abu Omar's abduction.
In an op-ed he wrote last January after the Senate Intelligence Committee released its torture report, Spataro said four "successive governments," led "respectively by the prime ministers Romano Prodi, Silvio Berlusconi, Mario Monti and Enrico Letta," obstructed the investigation and prosecution of those responsible for Abu Omar's "illegal rendition" by invoking state secrets.
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De Sousa said the trial that resulted in her conviction was a farce. For instance, the majority of CIA officers who were convicted were using aliases.
"Seventy-five percent of [the CIA officers] indicted don't exist," De Sousa told VICE News. "CIA officers in Rome who planned the rendition have never been held accountable. Neither has there been accountability for those senior CIA officials in Langley who authorized the 'kidnapping' of a target who did not meet CIA's internal threshold for rendition."
De Sousa, who broke her silence surrounding her role in the case two years ago, was working under diplomatic cover at the US Consulate in Milan at the time of Abu Omar's rendition (meaning she was listed as a State Department employee), and as such she said she was entitled to receive diplomatic immunity. But she said neither the CIA nor the State Department issued a call for it.
The CIA also prohibited her and other CIA officers linked to the rendition from traveling within the European Union because there were active arrest warrants out for them. But De Sousa, a naturalized US citizen who was born and raised in India, objected to the travel restrictions because much of her family lived outside the US, including in Europe. She said the CIA told her that she would jeopardize the safety of officers overseas if she were allowed to travel. So she quit her job.
De Sousa has since traveled to India to visit her family and has so far avoided arrest. The same cannot be said for Robert Seldon Lady, who was arrested in 2013 while traveling in Panama. But he was quickly released, and he returned to the US before any attempt could be made by Italy to extradite him. It remains unclear what steps the US took to secure his return.
De Sousa met with Senate Intelligence Committee staffers in 2010, while they were working on the torture report, in a classified setting to talk about Abu Omar's rendition, his torture in Egypt, and her failed attempts to clear her name. She was hoping the Intelligence Committee would both intervene in her case and probe the Abu Omar rendition. But she said the committee did not take any action.
A Senate Intelligence Committee staffer, however, told VICE News late last year that De Sousa is wrong. The staffer said the committee followed up on De Sousa's claims with the CIA, but he said he could not divulge details of those discussions because they're classified.
De Sousa, feeling she had exhausted paths to clear her name through internal channels at the CIA and through numerous meetings with congressional oversight committees, turned to the Freedom of Information Act (FOIA). She first filed FOIA requests with the departments of Defense and State and the CIA seeking documents about the decisions that were made about how the US government would protect her during the course of the criminal proceedings in Italy; documents about the authorization to render Abu Omar; communications between the CIA and members of Congress about whether to assert diplomatic immunity on her behalf; a document relating to whether the CIA's Office of Inspector General would investigate the rendition; and an internal CIA accountability review board report about the rendition. [De Sousa's FOIA attorney also represents VICE News in active FOIA litigation against the government.]
While she was still working at the CIA, De Sousa asked to see the results of the accountability board's review. But, she says, then-CIA Director Michael Hayden told her she was not authorized to see them because she wasn't involved in the rendition — even though she'd been convicted in Italy for taking part in it.
The CIA issued De Sousa a so-called Glomar response, which means the agency said it could neither confirm nor deny that records exist — and that if they did exist, they would be classified. She has since sued the CIA and the State and Defense departments for the documents.
"My FOIA requests are based on what I know exits in those cables, emails, and meetings and discussions," she said. "Not just at the CIA, but also the [White House National Security Council]."
De Sousa would not discuss classified information related to Abu Omar's rendition. However, she said she would be willing to discuss what she knows about the rendition and how it all went down — including Italy's role — in a court setting.
"I am going to make Obama admit that this rendition took place," she said. "There has to be an investigation in the US where these folks have to be held accountable for it."
* * *
Jenks and Hall, however, both say this is a battle De Sousa will likely lose.
"US courts will not dictate to the executive branch to whom it should and not claim immunity," Jenks said. "But even in the unlikely event she is successful in the US, it's all frankly moot as concerns her Italian conviction."
On the other hand, Jenks only sees an "upside" for Abu Omar.
"Given that Italy convicted so many people, including Italian security agents, of kidnapping Omar in Italy, I would be surprised if Omar is not successful on at least some claims in front of the European Court of Human Rights," he said.
Hall agreed that De Sousa and Abu Omar are both "victims of the CIA," but that they're not on equal footing.
"Abu Omar was not charged with anything," she said. "He was innocent of wrongdoing. He gets picked up and he gets sent on to pretty severe punishment. Torture, being locked up for four years, and the full hand of the US government and the Italian government over him. He deserves a remedy because the state violated his rights, which that has left him psychologically and physically disabled.
"With Sabrina De Sousa [and the other CIA officers], the [prosecution] did such yeoman's work in terms of the actual investigation. Italy prosecutors have evidence they were implicated, whether they were directly responsible or complicit or knew about the rendition. It would really be a matter of what role she played within the organization at that time, and did she provide support," Hall said.
It would appear that the main evidence prosecutors obtained that they said incriminates De Sousa are her cell phone records.
"One of the telephone subscriptions implicated most in the operations, transfers, and communication exchanges related to the kidnapping was officially assigned to a person (De Sousa Sabrina), a CIA agent appointed to the American Consulate in Milan," according to documents Italian prosecutors presented to the court. De Sousa told VICE News she disputes this, but would not say more.
Hall said it's possible that De Sousa was "in the wrong place at the wrong time."
"But it doesn't look like anybody in the US government is going to vouch for her," she said. "She's like collateral damage."
A decision from the European Court of Human Rights is not expected until next year.
Update: This story originally said Chris Jenks' is a law professor at Harvard. He is a law professor at Southern Methodist University's Dedman School of Law in Dallas, Texas.
Follow Jason Leopold on Twitter: @JasonLeopold