Sabrina De Sousa was one of 23 people convicted in Italy of a very nasty American practice called “rendition,” which amounts to the United States invading the sovereignty of a foreign nation, seizing someone there because, well, we want to, and doing with them as we please. In this case, rendition ended in Egypt and torture.
De Sousa was alleged to have participated in the 2003 kidnapping of a Muslim cleric, Abu Omar. Officially, she was a State Department employee, part of the diplomatic corp. Unofficially, she was CIA. Even so, she expected her appreciative government to invoke diplomatic immunity on her behalf, and when it pretended not to know her, she was pissed and sued. From the New York Times :
Former colleagues say Ms. De Sousa was a C.I.A. officer posing as a diplomat, the most common kind of cover for intelligence agents working abroad. She has declined to say whether she worked for the agency, noting that she was officially posted to Italy as a State Department employee.
In 2009, Ms. De Sousa sued the State Department, the C.I.A. and several officials in an attempt to force the American government to invoke diplomatic immunity on her behalf in the hope of blocking her prosecution by the Italian authorities.
The State Department did not assert immunity, though it ultimately agreed to pay a lawyer in Italy to represent Ms. De Sousa. She was convicted in absentia in Italy of helping to oversee the kidnapping conspiracy and sentenced to seven years in prison.
As one might expect, De Sousa has evidence to support her claim. As also expected, the evidence is classified, since the government classifies everything short of the cleanser used to clean CIA toilets. But the lawyer for the Department of Justice has a security clearance. De Sousa’s lawyer, Mark Zaid, has a security clearance. No problem, right?
In a hearing before the judge, Beryl A. Howell, the Justice Department said that only the executive branch has the power to make decisions about classified information, including whether the lawyer, Mark S. Zaid, can tell the judge what he knows.
“There is no right for the plaintiff to give the court classified information at all,” said Brigham J. Bowen, a Justice Department lawyer. He said Mr. Zaid’s “obligation is to protect against all disclosures, including to the court.”
Judge Beryl Howell is the weak link. It seems the judge is the only one who can’t be trusted with classified information, the stuff that both the prosecution and defense know, and that Zaid can’t disclose it to the judge because the prosecution, as representative of the executive branch, gets to make the call. Shockingly, the DOJ says “nyet, comrade.”
In response, Judge Howell “pronounced herself ‘literally speechless’ at the government’s assertions,” which is of course a contradiction in terms, but who can blame the judge for being befuddled. It appears that the court got the message, however.
Judge Howell expressed sympathy for Ms. De Sousa’s situation, asking whether the government simply had left her “high and dry.”
Judge Howell asked Mr. Bowen, the Justice Department lawyer, several questions about an earlier episode in which Mr. Zaid was accused of inadvertently disclosing classified information in court papers, including which intelligence agency was involved. “I can’t fully answer those questions publicly,” Mr. Bowen said.
Secrets are secret, you know. It’s not like there’s a third branch of government whose duty it is to adjudicate the lawfulness of the conduct of the other two, in a system that could be called, to coin a phrase, checks and balances.
In the meantime, De Sousa is unable to travel to Europe for fear of being taken into custody to serve the seven year sentence imposed in absentia. She’s got no job, apparently since the government has this thing about diplomats and CIA agents being wanted criminals, and feels a bit unloved and unappreciated. She asserts that her Italian conviction is hindering her ability to find employment, though there’s no mention of whether it appears on her background check for the assistant manager position at McDonalds.
The scenario, in its entirety, is astounding on every level. Chances are De Sousa would be a bit more of a sympathetic plaintiff but for the fact that her underlying conduct related to the kidnapping and torture of a Abu Omar, even with the rationalization that torture in the old Egypt was considered a substitute for fine art.
But the mutt of this case is Judge Howell, who has accepted the premise that a branch of government cannot fulfill its constitutional duty when another branch of government says so. Arguments of judicial independence ring silly and empty when federal judges themselves opine that they’re “literally speechless.” Judge Howell should be filled with speech, loud and forceful speech, and none of it good for the government,
One might suspect that the federal judiciary wouldn’t take kindly to be told what it can do by some lawyer from the DOJ. And one would be wrong. When it comes to rendition, you can’t buck your master, and the government can’t trust its judges.