The lawyers for a former American official convicted in Italy for participating in the kidnapping of an alleged terror suspect are trying to keep alive a suit in Washington that asserts the official was immune from prosecution in the foreign proceeding.
Sabrina De Sousa, who served as a foreign service officer for the State Department, denies any role in the rendition of Egyptian cleric Abu Omar. Omar was reportedly grabbed on a street in Milan in 2003 and flown to Egypt, where he alleged he was interrogated and tortured. De Sousa was tried in absentia in Italy, convicted and ultimately sentenced to seven years in prison. She is challenging the case on appeal through counsel in Italy.
The United States did not assert diplomatic immunity on behalf of De Sousa. In her suit (PDF), filed in May 2009 in U.S. District Court for the District of Columbia, De Sousa said the State Department should have intervened in the Italian prosecution to invoke immunity.
But De Sousa’s case in Washington has stalled over a dispute about whether her attorneys can present classified information to U.S. District Judge Beryl Howell, a new addition to the bench who took over the case in January from Judge Ricardo Urbina.
Mark Zaid, a Washington solo practitioner who specializes in national security law, argued in court today he should be allowed to use classified information in response to the Justice Department’s motion to dismiss the suit. The department, he said, wants to control the flow of information to secure a litigation advantage.
De Sousa’s case, Zaid said, highlights broad and unresolved systemic issues about whether plaintiffs, judges or government lawyers should get to decide who has a need to know classified information. The Justice Department, he said, is increasingly pushing for a rule that would deny civil litigants the right at all to convey classified information to the court.
Justice Department lawyer Brigham Bowen of the Civil Division’s federal program branch told Howell that Zaid has no right to include classified information in responsive papers. Bowen said in court today that Zaid should be required to file an unclassified brief. He urged the presiding judge to rule on the government's motion to dismiss without an assessment of classified information.
If the government asserts the state secrets privilege, Bowen said none of the classified information would be presented to the judge. Bowen said Howell could revisit the issue of inclusion of classified information only after Zaid has filed a response to the government’s motion to dismiss.
Howell questioned whether the Justice Department was acting as a “super lawyer” in the litigation in its attempt to control how information is presented to the court. The interests of the department, the judge noted, are not the same as the interests of the plaintiff.
Zaid had asked Howell to hold a closed door court session to discuss procedural issues that will necessarily require the disclosure of classified information. The Justice Department opposed the proposed hearing.
Howell today instructed Zaid to file court papers by July that respond to the government’s motion to dismiss De Sousa’s complaint. The judge asked Zaid to articulate in greater detail, to the extent that he can, his need to include classified information. Howell said she would order the government to provide logistical support—including the use of secured computers—to Zaid.
The Justice Department said in its motion to dismiss (PDF) in August that the decision to make a particular argument in a foreign court belongs to the state, not the judiciary. “Doing so would inject the Court into matters of foreign policy, international diplomacy, and treaty practice which are not the province of the judiciary,” the department said.
De Sousa served as a State Department foreign service officer from 1998 to 2009, working first at the U.S. embassy in Rome and then later in the U.S. consulate in Milan. She was identified as one of the four main government officials responsible for the kidnapping.
De Sousa’s suit said she “categorically denies having any involvement in the alleged kidnapping of Abu Omar. She also rejects the allegation that she was the principal planner of the alleged operation. Even if the allegations were true, though, her actions clearly well within the scope of her official duties and thereby entitle her to diplomatic/consular immunity.”
De Sousa, who attended today’s court hearing, has an outstanding warrant against her that restricts her ability to travel to Europe, where she has a sister in Germany.