Renditions/Italy
Interpretation of "state secret" leads to suspension of Abu Omar trial

On 3 December 2008, Milan judge Oscar Magi suspended the trial into the kidnapping of Egyptian imam Abu Omar in February 2003, in which 35 people have been charged, including former SISMI (the military intelligence service at the time) director Nicolò Pollari, secret service officers and 26 CIA officers (in absentia). This is the second time the trial is suspended, as also happened shortly after it started, from June 2007 to March 2008, as a result of a conflict concerning the applicability of the status as "state secrets" to the matters under investigation. In fact, Nicolò Pollari had claimed that he could not disclose the information that would lead to his acquittal because it involved revealing acts that were covered by the "state secrets" exemption. However, in March 2008, for the sake of "ensuring a reasonable duration of the trial", and on the basis of negotiations between the prosecution and the Prodi government that diminished the importance of this conflict by temporarily excluding some documents from the trial papers, Magi had decided to re-start the trial (see Statewatch news online, March 2008). The new suspension follows refusals by both Nicolò Pollari and Marco Mancini, two key defendants on the Italian side of the case, involving collusion in the rendition, to answer questions in court by claiming that they were unable to do so because they would have to refer to "state secrets". Their decision was backed by Silvio Berlusconi, the current prime minister, who, in two letters, first described the SISMI officers' decision as "correct", before providing an interpretation claiming that "any relations between Italian and foreign services are covered by state secret even where they may be linked or linkable, afferent or related to an event-crime that is not covered by state secret". The judge was critical of efforts to stop the trial from running its course, noting that the latest instructions entail "an illogical dilation of the sphere of non-disclosure" regarding events concerning the kidnapping, which makes it "extremely difficult", to establish a "sure limit as to the admissibility of questions" and "the possibility of answering". Thus, the trial will now be suspended for four months, awaiting a decision by the constitutional court on the previous conflict of attributions raised by both the Prodi and Berlusconi governments, and the latest one arising from Berlusconi's interpretation of the "state secrets" exception. Prosecutors Ferdinando Pomarici and Armando Spataro criticised the fact the government can "decide what trials can be held and which ones can't", and that both governments have sought "to use the state secret to obstruct justice".

The reform of the secret services in August 2007 (see Statewatch news online, September 2007) followed a number of scandals including the Abu Omar rendition, the unlawful monitoring of the activities of politicians, businessmen, as well as lawyers, members of the judiciary and NGOs (see Statewatch, vol. 17 no. 2, June 2007) and the planting of scares and misinformation in the media, including through the use of journalists as paid informants. It replaced the erstwhile intelligence services, SISMI and SISDE (military and civilian, respectively), with internal and external security information services, AISI and AISE. It also regulated the discipline of state secrets, covering "documents, news, activities or any other thing" whose disclosure may be liable to harm the state's integrity, including with regard to international agreements, to the defence of institutions, to the independence of the state in relation to others, and with regards to its relationship with other states, and to the military preparation and defence of the state. Declaring news, documents, acts or "things" a state secret, lasting for 15 years, renewable to 30, is the PM's exclusive prerogative, and may not be applied to activities involving subversion or to attacks aimed at causing deaths. The PM may remove the requirement of secrecy when the reasons motivating it no longer apply. The same happens following consultation with the interested parties, in the case of information covered by international agreements or affecting the interests of foreign states or international organisations, unless exceptionally serious reasons prevent this. Information and acts concerning terrorism or subversion against institutions are excluded from the regime of state secrets, and the Constitutional Court may not be denied access to documents on the basis of them being state secrets. COPACO, the parliamentary oversight body on intelligence matters, is allowed to remove a state secret to obtain access to intelligence service documents, if the request by its ten members (up from eight) is unanimous. As regards judicial proceedings, the examination of specified information held by intelligence services by judges, limited to cases where it is "strictly indispensable for investigations", must take place in situ. Access to documents produced by foreign intelligence services with a non-disclosure commitment would require dialogue with the foreign authority responsible, to decide whether it should be made available or classified as a "state secret". If information is requested and the body holding it considers it to have the status of a "state secret", its transmission is suspended and it is sent to the PM, who must either confirm this status or authorise disclosure within 30 days. When judicial authorities need to interview intelligence service personnel in relation to investigations, they must take every possible measure to protect them, and arrange for the contents of this participation to remain secret, except for cases where keeping the information secret would "absolutely impede" the continuation of investigations. Information obtained by judges through the interception of communications involving service communications, must be kept secret, and transmitted to the PM once the interceptions are over, so as to verify if any of the information is covered by a state secret. If this is the case, the judicial authority may not use the information, and can only continue proceedings if it has independent, unrelated elements on the basis of which to proceed. Proceedings are shelved if the secret information is indispensable for prosecution of a case or continuing investigations.

As for the situation in the Abu Omar trial, the discipline is that if a witness fails to reply to inquiries by evoking a state secret, the PM is asked to confirm this, and if s/he does so and the information is essential for instructing the trial, proceedings are shelved. The trial may continue if other "independent and autonomous" elements exist to continue proceedings. The key element in this case appears to be that while a state secret may not be imposed with regard to illegal conduct by members of the security information system contravening the "special cause for justification" discipline (which excludes conducts codified in law as crimes "endangering or harming life, physical integrity, personal freedom, moral freedom, the health or well-being of one or more people", art. 17.2), the PM has also noted in his letter (above) that anything pertaining to relations between Italian and foreign intelligence services is, by definition, a "state secret". However, art. 19.8 of the law grants the constitutional court full access to the judicial acts in cases when a conflict of attributions is raised. Article 28.7 of the law establishes that in cases where a conflict of attributions has been raised involving the PM, if the conflict is resolved by deeming the state secret status unsubstantiated, the PM will no longer be able to affix it to the object of the dispute. Moreover, article 39.11 of the law notes that "In no case may news, documents or things concerning matters of terrorism or subversive of the Constitutional order ... be subjected to state secret". Hence, the issue appears to revolve around whether protecting relations between Italian and foreign secret services overrides the limitations on the affixing of state secret status to matters involving crimes practised by state agents, whether they are construed as "terrorist" or "subversive", or as mere infringements against a person's liberty and physical integrity, as in the case of the kidnapping of Abu Omar, who was subsequently rendered to Egypt where he claims he was tortured. It will be a key test of this new state secrets regime, which was presented as clarifying criteria and protecting intelligence officers in certain cases where they were duty-bound to commit certain criminal offences, while allowing more serious crimes to be investigated.

Sources & References

Corriere della Sera, 4.12.2008, Repubblica, 4.12.2008, ADNkronos, 3.12.2008.

Law reforming intelligence services and establishing a new discipline on state secrets
Ddl Senato 1335 - Sistema di informazione per la sicurezza della Repubblica e nuova disciplina del segreto,
http://www.cittadinolex.kataweb.it/article_view.jsp?idArt=70435&idCat=54

Previous Statewatch coverage:

Italy: Abu Omar trial to go ahead as government is accused of "disloyalty" (March 2008, Statewatch news online), http://www.statewatch.org/news/2008/mar/06italy-abu-omar.htm
Italy: Law reforms intelligence services (September 2007, Statewatch news online)
http://www.statewatch.org/news/2007/sep/03italy-intell.htm
Italy: Judge notifies defendants of the state of play in investigations into Abu Omar rendition: High-level SISMI and CIA officials involved (October 2006, Statewatch news online)
http://www.statewatch.org/news/2006/oct/10italy-omar-case.htm


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