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DOJ seeks dismissal of diplomatic immunity suit in Italy CIA rendition case

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] Lawyers for the US Department of Justice (DOJ) on Monday filed a motion to dismiss a lawsuit brought by a former State Department official seeking diplomatic immunity against Italian charges of helping to unlawfully kidnap a suspected terrorist. Sabrina De Sousa is one of 26 Americans and seven Italians on trial in Italy for the 2003 abduction of Egyptian cleric Osama Moustafa Hassan Nasr, also known as Abu Omar. De Sousa is on trial in absentia and filed suit in May asking the government to invoke diplomatic immunity on her behalf, as it has neither invoked nor waived diplomatic immunity for those on trial. The government moved to dismiss her case Monday, arguing that the courts lack the power to intervene in a matter of foreign policy that should be left to the executive branch: By this action, Plaintiff Sabrina De Sousa seeks to have this Court direct the United States Department of State to assert immunity on her behalf in a foreign judicial proceeding. To do so, however, would require this Court to subject to judicial review the exercise of a discretionary right that has consistently been viewed under U.S. and international law as belonging to the state, and thereby strip the Executive Branch of the discretion that all governments enjoy with respect to the assertion or waiver of immunity consistent with the needs of the state. Doing so would inject the Court into matters of foreign policy, international diplomacy, and treaty practice which are not the province of the judiciary. Such matters, which are "delicate, complex, and involve large elements of prophecy," are "wholly confided by our Constitution to the political departments of the government, Executive and Legislative" and "are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry."Last month, the DOJ agreed to pay for an Italian lawyer for De Sousa, but the trial has nearly reached its end.Nasr was seized on the streets of Milan in 2003 by CIA agents with the help of Italian operatives, then allegedly transferred to Egypt and tortured by Egypt's State Security Intelligence before being released in February 2007. De Sousa is accused of working for the CIA under diplomatic cover, but she has denied any affiliation or involvement in the kidnapping. The trial has been delayed many times throughout its course. In May, the Italian judge presiding over the trial ruled that it could proceed despite evidence being excluded for national security reasons.

Full post as published by JURIST - The Paper Chase on September 02, 2009 (boomark / email).