09.23.09

Obama Backs Rendition Immunity

In a move approved by the president, the Obama administration has asserted immunity for a defendant in a trial involving Bush-era CIA renditions, The Daily Beast’s Gerald Posner has learned.

The Obama administration has notified the Italian government that it will assert immunity as early as today for an Air Force lieutenant who is being tried in absentia, along with 25 others, for the CIA’s now infamous extraordinary renditions program, the Daily Beast has learned. This decision, approved by the president himself, at the persistent urging of Secretary of Defense Gates, will mark the first time the new administration has invoked immunity to protect U.S. military or intelligence personnel from prosecution by another country for Bush terror policies, and is a surprising reversal in a case in which U.S. officials have neither waived nor invoked immunity but instead seemed to only ignore the prosecution.

The Italian case, progressing while the Justice Department debates possible criminal charges against CIA interrogators of terror suspects after 9/11, revolves around the daring 2003 CIA-coordinated seizure of Muslim cleric Osama Moustafa Hassan Nasr, also known as Abu Omar. Nasr, a suspected go-between in terror circles, was bundled off a Milan street by CIA operatives, transported in a van to Aviano Air Base in Italy, flown to Ramstein Air Base in southern Germany and then to his native Egypt, where he was held and tortured. He is now out of prison but under house arrest near Cairo.

This decision, approved by the president himself, at the persistent urging of Secretary of Defense Gates, is the first time the new administration has invoked immunity to protect U.S. military or intelligence personnel from prosecution by another country for Bush terror policies.

Prosecutors are presenting final arguments today in the case, the first trial in any country involving the renditions program. Department of Defense notified them that it will assert Status of Forces (SOFA) immunity for Air Force Lt. Colonel Joseph Romano, and may present documents in support of this move as early as today. Romano was the security chief at the Aviano Air Base. Romano’s attorneys asked the Judge this morning to transfer the case to a U.S. military court, but the judge rejected his motion. After the Defense Department presents the SOFA immunity, Romano’s attorney will move for an immediate dismissal of all charges.

The White House Press office declined any comment and suggested I call the National Security Office. The NSC spokesman said, “There’s nothing I can give you on that.” Diplomats below the level of ambassador are given immunity only for official activities under International law, says Professor Michael Scharf of Case Western Reserve University. The American government has never acknowledged any participation in Nasr's abduction.

News of the green light for the SOFA immunity for Romano has also prompted criticism by the attorney for at least one of the other defendants. Washington’s Mark Zaid represents Foreign Service Officer Sabrina De Sousa. She has always insisted she played no part in the rendition and has been asking for diplomatic/consular immunity as that about to be given to Romano. Last May, she sued in federal court in Washington to force the State Department to give her diplomatic immunity and government-funded legal counsel in Italy, which she had been asking since 2006 without a response from either former Secretary of State Condoleezza Rice or the current secretary, Hillary Clinton. The Daily Beast has learned that in a brief letter dated August 26, the Justice Department granted De Sousa’s request to pay her attorney fees. The other Americans charged, all considered fugitives by Italy, are represented mostly by court-appointed lawyers who have had no contact with the defendants.

Zaid says the government’s decisions raise more questions than it answers.  Why will the government pay for De Sousa’s defense (as it has also agreed to do so for Romano), when it does so only in cases in which a government employee is acting in the scope of their official work, but meanwhile refuses to invoke diplomatic immunity? Why have members of Congress, especially those on the House's and Senate's Intelligence and Foreign Relations Committees, ignored this case?  Zaid says if the Italian prosecutor’s charges are correct – and the Congressional committees were fully informed of the U.S. Government plan for Nasr’s rendition – then it would makes sense that they “now wish to escape culpability of their own.”

"If the Committees had not been informed," he adds, "they would have been screaming bloody hell. Yet, not a peep."

Why, Zaid continues, invoke immunity for one indicted American conspirator but not do so for any others? Whose interests are being protected? Why didn’t the Bush Administration protect those charged in this case – it has been pending since 2006. “The hypocrisy and shame surrounding the ramifications of this decision is stunning,” says Zaid.

Gerald Posner is The Daily Beast's Chief Investigative Reporter. He's the award-winning author of 10 investigative nonfiction bestsellers, ranging from political assassinations, to Nazi war criminals, to 9/11, to terrorism. His latest book, Miami Babylon: Crime, Wealth and Power—A Dispatch from the Beach , will be published in October. He lives in Miami Beach with his wife, the author Trisha Posner.