THE BLOG
04/04/2010 05:12 am ET Updated May 25, 2011

Judge's Failure to Convict Intelligence Agents Is a Blow to Italy's Justice System

When a Milan judge stated yesterday that Italy's secret-service agency was perhaps complicit in the 2003 abduction and rendition of an Egyptian cleric, it confirmed the long-held suspicions of many Italians. Judge Oscar Magi's decision last November to dismiss the kidnapping cases against two of the country's top intelligence officers infuriated local human rights advocates, who claimed those officers broke Italian law.

There is little doubt that that members of Italy's intelligence agency -- then known as SISMI -- played a role in the kidnapping of Muslim cleric Osama Moustafa Hassan Nasr in the weeks leading up to the Iraq War. Nasr, an Egyptian refugee also known as Abu Omar, was snatched off the street in broad daylight and secretly moved to an Egyptian prison, where he claims he was tortured. But because the SISMI defense team invoked Italy's state secret privilege, which blocks the submission of certain classified evidence on grounds that it could compromise national security, Judge Magi was forced to dismiss the case, he explained yesterday.

"It's striking that none of the Italians were held accountable for the actual abduction," said Julia Hall, an adviser to Amnesty International. The secrecy doctrine, she said, "allowed the government to justify patently unlawful behavior."

The chief prosecutor in the case, Armando Spataro, had hoped for minimum 10-year sentences for Gen. Nicoló Pollari, former head of the Italian intelligence agency, and Marco Mancini, the second in command.

There is public evidence pointing to the culpability of five Italian agents who were charged and set free. In 2006, the Washington Post published a partial transcript of a wiretapped phone conversation between Mancini and his predecessor, Gen. Gustavo Pignero, in which the two discuss SISMI involvement in Nasr's rendition.

The most damning evidence, however, was barred from the courtroom due to the state secrets provision. That evidence includes information seized from SISMI's headquarters by non-military intelligence operatives, as well as the recorded testimony of Lucianno Peroni, the policeman who physically picked Nasr off the street. He agreed to a light sentencing in exchange for a statement prior to the trial.

The secrecy provision was written into the Italian criminal code several years ago and beefed up by Italian legislators in 2007, the year the Nasr trial opened. In addition to protecting national security, it seeks to safeguard sensitive information passed between Italian and U.S. intelligence officials and preserve foreign relations. But reform advocates say that the provision does little more than offer the Italian government a get-out-of-jail-free card to use at its disposal in order to cover up criminal activities.

Spataro, the prosecutor, believed he could sidestep the provision because of the severity of the crime. But last year the Italian Constitutional Court upheld the law after a strong case was presented by the Italian Justice Ministry. Some complained that the Constitutional Court ruling was too broad, and criticized the judges for failing to consider a middle ground: allowing the classified evidence to be submitted to Judge Magi but keeping it secret from the public.

The court ruling marked the first-ever conviction of CIA agents for their roles in an abduction. Because each of the American defendants was prosecuted in absentia, none will go to prison, provided they refrain from traveling to Europe or other foreign countries that maintain extradition agreements with European Union nations. Italy's tradition of trying defendants in absentia traces its roots back to Mafia cases as a means of protecting vulnerable citizens.

Before the trial began, two additional suspects, Peroni, the policeman who lifted Nasr off the street, and Renato Farina, a former journalist for the right-leaning newspaper Libero, took plea bargains. Farina was charged with obstruction of justice after publishing dubious articles that served to cover up the kidnapping.

News of the secret abduction broke four years ago, when it was discovered that the CIA gave a false tip to non-military Italian agents in 2003, leading them to believe that Nasr had fled Milan and was hiding out in the Balkans, when in actuality he had been transferred to Egypt. When the scandal broke and charges were rendered, Pollari was forced to resign from his post.

This is not the first controversy to have recently befallen SISMI. In 2002, Pollari met with Bush administration official Stephen Hadley and assured him that the Iraqi government had purchased yellowcake uranium from Niger, which proved false.

It's possible that politics and culture played a role in the kidnapping and ultimate dismissal of charges. There has long been tension in Italy between natural-born citizens and Muslim immigrants -- much more so than in the United Sates -- and the country has lived with a history of xenophobia.

It is unclear whether Prime Minister Silvio Berlusconi, an ally of the Bush administration during the buildup to the Iraq War, approved of the kidnapping. Several experts, along with Spotaro, believe that either he or senior members of his administration were briefed on the situation, but there is no documentation that proves it. Others believe Berlusconi had no hand in the kidnapping, but helped cover it up for more than a year.

Several more details remain uncovered, and many have wondered how much information the government has kept hidden. "It's a very intricate story, and probably what has surfaced to the public is only a fragment of the true story," said Andrea Boggio, a legal scholar based in Rhode Island.