CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, November 24, 2005

Northwestern CrimProf Sheds Light on Prosecutions of CIA Operatives In Absentia

AllenItaly's chief anti-terrorism expert for the northern Italian region has stated his intention to prosecute 22 past and present CIA operatives "in absentia" on kidnapping charges.  This decision comes in the wake of European nations' reactions to recently publicized information about how the CIA has used European facilities since 9/11.  Recent news reports have exposed that aircrafts registered to CIA front companies have been using European airports with increasing frequently since 9/11.  At least eight European nations have raised questions about this secret CIA practice, known as "extraordinary rendition."  The Milan case being pursued by Italian prosecutor Armando Spataro that now threatens to further expose the once-secret practice stems from the February 2003 abduction of an Egyptian-born imam, Osama Moustafa Hassan Nasr, better known as Abu Omar.  Omar was abducted as he walked from his Milan apartment to a nearby mosque.

Although they are highly uncommon, if not unknown in the United States, trials in absentia are more common in Europe, particularly in terrorism cases.  The European Court of Human Rights has advised that convicting a defendant in absentia does not violate the defendant's human rights as long as: 1) the defendant has been notified that a trial is taking place; and 2) the defendant is provided with legal counsel.  In some cases, even defendants thought to be dead have been convicted in absentia.

The Milan kidnapping trial will proceed if the Milan Judge Chiara Nobili grants permission; Nobili has already approved warrants for their arrests.  If the CIA operatives are convicted, they will be subject to arrest and extradition in any of the 184 Interpol (international police organization) countries.  Prosecutor Sparato believes that Italian criminal procedure affords him authority to take testimony from potential witnesses located at the U.S. Embassy in Rome (where the CIA's Italian branch is located), the U.S. Consulate in Milan (from where Omar's abduction was coordinated), and from people currently residing in the U.S. 

But international law experts, including Northwestern CrimProf Ronald Allen (pictured), don't think the governing laws and procedures give clear guidance on how this situation should be handled.

From The Chicago Tribune: "This is uncharted territory," says Ronald Allen, a professor of criminal law at Northwestern University. Although procedures exist for the international exchange of evidence in civil cases, Allen says "these kinds of things just don't come up" in most international criminal cases.

Other experts said that while it might be impossible for Spataro to obtain evidence or testimony in the United States without the assistance of the Bush administration, which is not likely to be forthcoming, U.S. Embassy employees in Rome who do not have diplomatic immunity probably would be subject to the normal processes of Italian law. Prospective witnesses presumably would include CIA officers stationed in both locations." Read more. . . [Mark Godsey]

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