It is a Friday morning in late May in Florence, Italy, and a Milan-based investigating magistrate, Armando Spataro, 58, is speaking at a conference entitled "From Terror to Security: The Policy Challenge." His voice is testy, especially when he talks about individuals he sees as his adversaries. They are not al-Qaeda members, as one might expect, but officials who support certain aggressive methods used to apprehend terrorism suspects.
"It is harmful to arrest somebody too early or on a basis that is not legal," Spataro says. "That would violate international human rights."
Spataro does not name names, but he is referring to CIA officers who apparently grabbed an imam, Osama Hassan Mustafa Nasr (aka Abu Omar), near a mosque in Milan on February 17, 2003. Nasr was then taken to a prison cell in Cairo, Egypt, for interrogation, where he claims he was tortured. Largely because of Spataro's efforts, a trial against several Italians and 26 Americans -- a group comprised mainly of CIA officers apparently involved in the rendition -- is scheduled to begin on Friday in Milan.
It is a landmark case, the first trial of U.S. rendition, though experts say it will probably be postponed because of legal wrangling. Observers say Spataro is hoping to find out more about the U.S. officials -- and, perhaps more importantly, about the Italians who apparently cooperated with them. Meanwhile, Spataro himself has been accused of collecting evidence through wiretapping -- a charge he denies. The case has political undertones; Spataro was unable to indict the officials while Prime Minister Silvio Berlusconi, with his famously pro-American views, was in power. However, the case has moved forward slowly under his successor, Prime Minister Romano Prodi.
Spataro's frustration with the Americans involved in the case is palpable. The May conference in Florence, which was sponsored by NYU School of Law's Center on Law and Security, was off the record, but Spataro gave me permission to include his remarks in my article. (U.S. officials, including those working at the CIA, have not spoken publicly about the case.) Government officials dealing with national-security issues in several nations, along with journalists, academics, and lawyers, gathered in a villa for the conference, where they discussed issues such as the roots of terrorism and methods of combating it. During breaks, they nibbled ham sandwiches on crustless white bread, sipped wine, and talked about torture, rendition, and Egyptian jails. The trial against American CIA officers -- however unlikely -- loomed in the background but was rarely discussed.
In 2002 to 2003, Spataro and local investigators had been keeping tabs on Nasr, an influential imam known for his radical views, to see if they could find out about Islamic extremists in northern Italy. After Nasr was taken out of Milan, the investigation dissolved, along with the possibility of trying him in an Italian court, say legal experts. He is now living in Alexandria, Egypt.
Some experts say there is nothing inherently wrong with renditions, which have been used for years by U.S. government officials to detain suspects who seek refuge in countries where they are unlikely to be prosecuted. But that policy changed under the Bush administration. After the terrorism attacks of 9/11, suspects were being seized in all sorts of cities throughout Europe. "The U.S. government had never picked people off the street in countries like Italy that had functioning legal systems," Daniel Benjamin, coauthor of The Next Attack: The Failure of the War on Terror and a Strategy for Getting It Right, tells me at the conference in Florence. "Countries that have the rule of law should not be venues for rendition."
"What has made renditions so unpalatable is that after 9/11, when 'the gloves came off,' as some officials put it, so did the moral and legal standards that made rendition acceptable," he wrote in a column about the subject for Slate. "In short, rendition has become a dirty word because it is now a shorthand for what some have called 'the outsourcing of torture.'"
Not surprisingly, Italian legal experts have been vocal critics of the rendition program.
"[Nasr] had no proper way to defend himself in a fair trial, and that is the most troubling part about it," Francesco Vigano, a professor of criminal law at the University of Milan, tells me in Florence. "One has to realize that the law-enforcement system does work. Its guarantees of due process and refusal of torture are not real obstacles to fighting terrorism in an effective way."
There were other issues, too. For some U.S. officials, the seizing of Nasr was problematic not because it seems to have violated international legal norms, but because of the manner in which it was executed -- with little regard for budgetary or security concerns. Approximately $144,984 was spent on accommodations alone, largely on five-star hotel rooms in Milan for the American officers, according to arrest warrants signed by a judge, Chiara Nobili of Milan. CIA officials apparently used easily-traceable cell phones. The sloppy proceedings prompted then-CIA Director Porter Goss to issue harsh criticism and later demand a review of the agency's field operations, according to the Chicago Tribune.
At this point, nobody believes the Americans who were apparently involved in the seizure of Nasr will be put on trial – at least in person. (It is possible they will be tried in absentia.) But the "l'affaire de l'imam," as it has been called, has increased tension between U.S. and Italian officials. "It was a really bad idea, and it has caused a rift with an ally," says Benjamin. "We don't need the European public to get angry at us for our counterterrorism efforts. We need their help."
---
Related: See TAP Online's interview with Armando Spataro, "Rendition on Trial" by Laura Rozen, May 15, 2007.
