CIA retiree loses appeal in Italy

Chicago Tribune | CIA retiree loses appeal in Italy
CIA retiree loses appeal in Italy
Judge rejects bid for immunity in cleric's kidnapping

By John Crewdson and Alessandra Maggiorani, Chicago Tribune. John Crewdson reported from Washington and Alessandra Maggiorani from Rome
Published December 1, 2005

ROME -- Brushing aside claims by a retired CIA officer that his actions were protected from prosecution by diplomatic immunity and shielded from view by national security, an Italian judge has opened the door to what could become a public exposition of one of the least-known and most controversial facets of the Bush administration's clandestine war on terror.

The retired officer's appeal, filed last week before the Tribunale Ordinario in Milan and obtained and translated by the Tribune, refers six times in 21 pages to the CIA, which has refused to acknowledge any role in the forcible abduction of a radical Muslim preacher here nearly three years ago and his subsequent transportation to Egypt.

The appeal contains tantalizing hints that the former officer's lawyer may try to prove that CIA higher-ups and senior officials of the Italian intelligence services approved in advance the abduction of Abu Omar.

Daria Pesce, a Milan attorney representing Robert Seldon Lady, wrote in the appeal that "Mr. Lady, in accomplishing the typical functions of supervisor of the CIA American intelligence, could well have assumed the role of a member of a diplomatic special mission sent from the U.S.A. to Italy with, I here underline, the indispensable consensus of our state."

Pesce said in a telephone interview Wednesday that she had not intended to affirm that Lady had indeed been a covert operative for the CIA, that he had been involved in the abduction or that the abduction had had the blessing of the Italian government.

"We're talking about hypothesis," she said. "I never stated that the Italian government knew, but I'm making assumptions that the Italian government could have known. I'm saying it was possible."

Ruling accepted

Lady, who retired in either 2003 or 2004, according to various records, has been identified previously by Milanese prosecutors as the CIA chief in Milan when an Egyptian-born preacher, Osama Moustafa Hassan Nasr, known within Milan's Islamic community as Abu Omar, disappeared in February 2003.

Pesce said she accepted the ruling by Milan Judge Enrico Manzi that Lady lost his immunity when he retired. Manzi added that even active-duty consular officials could be arrested for serious crimes such as kidnapping for which the maximum penalty is more than 5 years in prison.

"Definitely, he hasn't got diplomatic immunity, not for kidnapping," Pesce said Wednesday. Pesce argued, however, that Lady's previous immunity should have protected his retirement villa, in the Italian wine region of Asti, from having been searched by police last June.

Investigators found a number of items the prosecution considers incriminating, including a surveillance-type photograph showing Abu Omar at the abduction scene and driving directions, downloaded from the Internet, showing the quickest route between downtown Milan and the airport from which Abu Omar was flown via Germany to Egypt, where he remains in prison and says he has been tortured.

In addition, Lady's computer yielded an e-mail message "in which he was notified about the investigations being carried out in this regard."

"There are no doubts at all" about Lady's participation "in the preparatory phases of the kidnapping," Judge Manzi concluded, adding that diplomatic immunity offered Lady no protection against the "capture of suspected individuals" without due process of law.

The judge termed the abduction of Abu Omar, who had been living in Italy under a grant of political asylum and whose movements were being closely watched by the local police, an illegal encroachment on Italian sovereignty.

According to Milan prosecutor Armando Spataro's application for the arrest warrants against Lady and 21 other past and present CIA operatives, the CIA's motive for kidnapping Abu Omar in broad daylight as he walked to a nearby mosque to pray was the agency's hope that the Egyptian security service could persuade him to return to Milan as an informer within that city's expatriate Egyptian community.

Over the summer, Spataro obtained arrest warrants for Lady and the others, including one woman who continues to serve under diplomatic cover elsewhere in the world--and who, according to Manzi's ruling, would be liable for arrest and prosecution if she returns to Europe.

Extraditions sought

Earlier this month, Spataro asked Justice Minister Roberto Castelli to request that the Bush administration extradite the 22 defendants to Italy to stand trial for kidnapping, which carries an 8-year sentence.

Although such intragovernment referrals are almost always automatic, Castelli said last week he was "studying" the extradition requests.

"We are waiting for the decision," Spataro said in a recent interview, "but it's clear in any case that we go to the trial. For our system it's also important that we have for the trial the truth."

Under Italian law, all 22 defendants can be tried, convicted and sentenced in absentia, as long as they are represented by court-appointed lawyers. If convicted and sentenced, they would face arrest by setting foot in any of the 184 countries that belong to Interpol, the international police organization.

Eric Lewis, an attorney with the Washington firm of Baach, Robinson & Lewis, said that under U.S. law Spataro could ask a federal judge in this country to subpoena documents or take testimony from anyone presumed to have information about Abu Omar's abduction.

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jcrewdson@tribune.com