A judge on Thursday threw out a former State Department official's lawsuit demanding diplomatic immunity against charges she helped kidnap a terrorism suspect in Italy but said the U.S. government's handling of the case sends a "potentially demoralizing" message to American civilians serving overseas.
U.S. District Judge Beryl Howell said the facts of the case brought by Sabrina De Sousa were troubling, but she's bound by the law to dismiss the lawsuit.
De Sousa was one of 26 U.S. officials tried in absentia in 2009 for the alleged kidnapping of Muslim cleric Osama Moustafa Hassan Nasr, also known as Abu Omar. It was the first trial in any country stemming from the CIA's "extraordinary rendition" program, which involved moving terrorist suspects from one country to another for interrogation outside the bounds of the criminal justice system.
Italian prosecutors said De Sousa, a naturalized U.S. citizen born in India, was a CIA officer working under diplomatic cover and was one of four main U.S. officials responsible for coordinating Nasr's capture from a Milan street on Feb. 17, 2003. Prosecutors said he was taken to his home country of Egypt, where he was held and allegedly tortured before eventually being released.
De Sousa said she was a foreign service officer at the U.S. consulate in Milan and denied that she worked for the CIA. She said that at the time of Nasr's capture she was vacationing at a ski resort nearly 130 miles away and was not involved.
But an Italian court convicted De Sousa and sentenced her to five years in prison. She has complained that the case makes it impossible for her to see her family in India because she risks extradition to Italy if she leaves the United States.
She resigned her job over the State Department's refusal to give her immunity and sued to try to force the department to provide it.
Governments can invoke immunity for their diplomats to protect them from prosecution in a host country. The United States neither waived nor invoked immunity for the officials in the Italian case. Twenty-three Americans and two Italians were convicted, but the judge at that time also acquitted three American diplomats, citing diplomatic immunity.
Government lawyers responded to De Sousa's suit by arguing that the courts have no authority to intervene in what is a foreign policy decision that must be left solely up to the executive branch. They also argued that the option of diplomatic immunity exists to benefit the nation applying it, not an individual government worker subjected to foreign legal action.
The judge agreed.
"The plaintiff seeks to challenge an essentially discretionary policy decision of the United States regarding whether to assert immunity for that employee in a foreign nation," Howell wrote in a 36-page opinion issued Thursday evening. "This type of claim presents a political question that this court cannot answer."
But, she wrote, "The facts underlying this case are troubling in many ways." She pointed out that De Sousa was convicted of a crime, not for any personal gain, but allegedly on behalf of the U.S. government and that her requests for assistance to fight the charges were denied. She said the risk of imprisonment if she travels outside the United States were a particular hardship because of her family members living abroad and the impact on her professional options.
"The message that this scenario sends to civilian government employees serving this country on tours of duty abroad is a potentially demoralizing one," Howell wrote.
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