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Italy: Constitutional Court Ruling in Connection with Ongoing Extraordinary Rendition Trial

(Mar. 20, 2009) The Constitutional Court of Italy, in a ruling delivered on March 11, 2009, held that wiretap surveillance on Italian secret service agents by Milan prosecutors in the Abu Omar rendition case had violated state secrecy laws “by gathering and attempting to introduce evidence that the government said would harm national security.” (Italy: Court Decision in Abu Omar Case May Benefit Washington, OPEN SOURCE CENTER [OSC] REPORT, Mar. 12, 2009, Open Source Center No. FEA20090313829998.) The Court thereby “upheld the Italian Government's use of the 'state secret' clause to withhold limited evidence” in the case and seemed “to confirm that the 'state secret' clause applies to evidence allegedly describing the nature of intelligence collaboration between US and Italian intelligence services.” (Id.)

The case involves the kidnapping in Milan of an Egyptian terrorist suspect, Imam Osama Mustafa Hassan (known as Abu Omar), in February 2003 by the secret services of the United States and Italy, and the suspect's extraordinary rendition to a high security prison in Egypt. The Abu Omar trial had been suspended pending the Constitutional Court decision; the next hearing is now scheduled for March 18, 2009.

The case is reportedly “the first in Europe [to look] into the CIA's 'extraordinary rendition' programme involving the secret transfers of terrorism suspects to third countries known to practise torture.” (Italian Court Says State Secrets Violated in CIA 'Rendition' Investigation, AFP, Mar. 11, 2009, Open Source Center No. EUP20090311102012; Italy: Abu Umar Abduction Trial Adjourned to 18 May, AFP, Dec. 8, 2008, Open Source Center No.EUP20081203102034, both available in the World News Connection online subscription database.) The defendants are 26 Americans, almost all CIA agents, being tried in absentia, and seven Italians, including Nicolo Pollari, Italy's former military intelligence chief, who was forced to resign because of the incident. (Italian Court Says State Secrets Violated in CIA 'Rendition' Investigation, supra).

The government had argued that “any potential relationship with foreign intelligence services was, by definition, a state secret,” according to LA REPUBBLICA (Oct. 22, 2008), and the Constitutional Court decision appeared to give the government the “grounds to argue for the dismissal of all evidence related to any intelligence sharing.” (OSC Report, supra). A number of press accounts also indicated that the ruling may “encourage continued collaboration between” the United States and Italy in such matters. (Id.) Nevertheless, prosecutor Alessandro Pace contends that the decision does not spell the end of the case for the prosecution. He stated, “[t]he trial still holds, and only part of the evidence, and not all of the wiretap transcripts, are covered by the state secrecy laws.” (Italian Court Says State Secrets Violated in CIA 'Rendition' Investigation, supra.)