A Welcome Verdict In Milan


I am a CIA reject. Almost thirty years ago, I was a candidate to become an undercover operative, or spy. I interviewed with agents fresh from assignments in Moscow and South Korea in hotel rooms at Manhattan’s Algonquin Hotel. I took aptitude tests at an anonymous looking building in Reston, Virginia. I met with a recruiter at another location where I was told things looked good. I would soon by a secret sentinal serving national security.

Of course, that was before the polygraph exam I took at CIA headquarters. My examiner had the charm of a desperate used car salesman. I could not satisfy him as regards drug use and sexuality. He apparently knew things about me I still do not know.

I was reminded of this while reading about the conviction of 23 CIA operatives in an Italian court. They were convicted of kidnapping for their role in the abduction of a man named Osama Moustafa Hassan Nasr, or Abu Omar. Nasr was abducted in broad daylight in Milan in 2003, stuffed into a van, taken to an American military base, flown to Germany and then dumped in Egypt, where the law permitted him to be tortured.

Had I passed my polygraph, I could well have participated in this mayhem, and I am sure I would have justified my conduct as warranted in the war on terror.

But I am not a CIA agent. I am a lawyer and an American citizen, and I am ashamed of the acts undertaken in my name on Italian soil. One of the agents, Robert Seldon Lady, a former CIA base chief in Milan, reportedly told an Italian newspaper this past summer: "Of course it was an illegal operation. But that’s our job. We’re at war against terrorism."

The agents charged fled Italy rather than face trial, and were hence tried in absentia. The Italian prosecutor handling the case may seek international arrest warrants for them. Mr. Lady was sentenced to eight years imprisonment. Twenty-two other agents were sentenced to five years each. None of the Italians suspected of complicity in the act were convicted: some were not charged, others were granted immunity.

News that international warrants may be issued for American agents presumably now safely at home prompts warring impulses. The jingo in me roars in defiance. Just try to come and get ‘em, I sneer. Hurrah for sovereignty. And harrumph, too.

But a calmer, rational voice welcomes the embrace of emerging international norms. Kidnapping is wrong. Spiriting a man away without lawful process should be a crime under any penal code. Rendering a suspect to place fetid enough to permit torture is not the act of a confident sovereign. It is the act of a thug, a thug in this case wearing stars, bars and singing the national anthem.

Mr. Nasr has apparently filed suit in the European Court of Human Rights. I would like to see him file suit in the United States under the Torture Victim Protection Act, passed by Congress in 1992. This statute permits a person to bring an action for damages arising from an act of torture committed "under actual or apparent authority, or color of law, of any foreign nation." Would the Italian judgment be res judicata here? I suspect not, but it is an intriguing possibility.

Americans strutting the globe and breaking the laws of other nations are no credit to American ideals, and often do great harm to our national interest. If the kidnapping were justified in the name of national security, then defend on that basis. Don’t cut and run.

I mulled this and recalled the words of my CIA interviewer. I was on the cusp of being hired. I was told I would soon be assigned a cover. A day to report for training and then language school was set. I wanted to study Arabic and work in the counter-terrorism unit. It looked like I might get my wish. But why, I wondered, was I not offered the top pay grade?

"That’s for former Green Berets and Sea Bees," the agent said. He paused, looking me in the eye. "Professional killers," he said. "You’re not one, ... yet," and then an icy smile.

I suppose I am glad the rejection letter came. No explanation. No cover. No Arabic. No learning to shoot guns, build bombs and drive evasively. It all seemed like a grand and glorious adventure then.

Today is seems reckless, perhaps even foolish, and certainly dangerous in ways I could not as a youth comprehend. I am relieved by the judgment of the Italian court, and view it as a sure sign of progress in the development of international norms. I am sure I’d see it otherwise if I were a spy.

Reprinted courtesy of the Connecticut Law Tribune.

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