A Washington federal judge late Thursday dismissed a suit that alleged the U.S. State Department failed to assert diplomatic immunity on behalf of an official who was convicted in Italy for her alleged role in kidnapping a terror suspect.
U.S. District Judge Beryl Howell threw out the claims Sabrina De Sousa, a former State official, lodged in Washington federal district court in May 2009 against the government. The judge's opinion is here
Prosecutors in Italy charged De Sousa and others in the alleged kidnapping of an Islamic cleric and suspected terrorist named Abu Omar. De Sousa, who denies any involvement, was convicted in absentia in an Italian court in 2009 and sentenced to five years in prison. She faces the possibility of arrest outside of the United States.
De Sousa said in her suit the State Department should have intervened in the proceedings in Italy to assert diplomatic immunity. Howell rejected the claim, saying it raised a political question that “lies beyond the competence of this court.”
Howell said De Sousa (at left) and her attorney, Mark Zaid, who specializes in national security law, failed to convince her she has the authority to make a general assessment of eligibility of immunity in order to dodge the bigger question of entitlement to immunity.
The judge said De Sousa’s claims “do not identify any way in which the government has violated the provisions of relevant treaties, applicable statutes, or any other rule of law against which the court might competently assess the government’s conduct.”
Howell said “the government is alleged to have undertaken an action–the non-assertion of immunity on behalf of De Sousa in a foreign judicial proceeding–that is within its discretion.”
Zaid said new claims will likely be filed and that he is assessing the merits of asking the U.S. Court of Appeals for the D.C. Circuit to review Howell's decision.
“The Court's decision unfortunately sanctions the betrayal by two Administrations of a dedicated federal servant for Executive political purposes,” Zaid said in an e-mail. “The message is clear that when it comes to weaponizing national security to extinguish charges of intentional governmental misconduct, the Obama Administration is as bad, if not worse, than its predecessor.”
The hotly contested litigation over the past several months presented Howell the question of whether plaintiffs have a right in civil litigation to access and use classified information.
Zaid said repeatedly he should be allowed to present classified information to Howell to aid her resolution of the government’s effort to dismiss the suit. The Justice Department lawyers, including Brigham Bowen and Judson Littleton of the Civil Division’s federal programs branch, said no such right extends to civil litigants.
In her ruling Thursday, Howell said De Sousa is not entitled to disclosure of classified information. The judge said the lawyers in the case have not “located authority that directly controls a plaintiff’s right to present classified information in a civil action.”
“The crux of the question is the court’s power to require the government to disclose classified information in litigation,” Howell wrote.
The judge then said she believes she has the discretion to order disclosure of classified information in a civil case “where the information is material to the resolution of disputed legal issues and where alternatives to reliance upon classified information are inadequate to satisfy the interests of justice.”
If Howell had ordered the Justice Department to release classified information, the government could have decided then to assert the state secrets privilege. Howell said “greater cooperation between the plaintiff and the government may have also avoided some of the disputes over classified information in this case.”
Howell said she offered, and Zaid “affirmatively declined,” the opportunity for a closed session to allow De Sousa to explain the relevance of classified information to the pending claims against the State Department. Zaid said in court papers his ability to comply “is severely limited due to restrictions known to this court.”
The judge said she “recognizes the difficulty of asking the plaintiff to indicate the relevance of classified information without actually revealing that information.”
Howell didn’t let the Justice Department pass without some criticism.
The judge said DOJ “did little to minimize the ‘logistical obstacles’ presented by the need to protect against the inadvertent disclosure of classified information.” DOJ, the judge noted, refused to allow Zaid the use of a secure computer to draft filings and threatened the continuation of his security clearance.
Zaid wanted to use such a computer to minimize the chance of inadvertently disclosing classified information.
“The message that this scenario sends to civilian government employees serving this country on tours of duty abroad is a potentially demoralizing one,” Howell said. “The court is bound, however, to apply controlling law to the plaintiff’s case.”