An incident that occurred in a Lisbon court on 15 January, involving a person of Indian origin went barely noticed. Sabrina De Sousa, a former CIA employee was prevented from boarding a flight at Lisbon airport in October 2015 because of a 2009 conviction (“in absentia”) by an Italian court. She was on her way to Goa to see her 89-year-old mother. On 15 January, the Portuguese Court decided that she should be sent to Italy to serve her six year prison sentence. She is planning to appeal, but the outcome seems to be uncertain knowing the rigid European Union legal system.
This episode should convey vital lessons to those in government who loosely talk about more aggressive “covert” operations without providing even basic legal protection to our intelligence agencies. The UPA government failed to consider this in 2014-15 when the CBI wanted to prosecute some IB officers. Even the NDA government has not given it much thought. They have pushed the issue under the carpet by refusing to give sanction to prosecute.
In 2011 former UPA minister Manish Tewari had introduced a private bill, ‘The Intelligence Services – Powers & Regulation – Bill 2011’ in the parliament, trying to codify the functioning of our intelligence agencies by specifying their charter and accountability. Unfortunately, the UPA government failed to move this bill which would have given legal protection to our intelligence agency to some extent.
De Sousa’s Indictment
De Sousa’s case goes back to 17 February 2003 when the US-led “War on Terror” was raging. Abu Omar, an Egyptian cleric, was abducted by the CIA and Italian military Intelligence (SISMI) from Milan. He was flown to Egypt and made to stand trial. However, the Egyptian court discharged him in 2007.
The Italian prosecutors who do not take orders from the government indicted 26 CIA officers, including the Rome station chief and senior SISMI officials for kidnapping. Cell phone conversations were produced to prove their involvement. USA tried to evade this process by withdrawing all CIA officials before trial, including Sabrina de Sousa, then posted at Milan. The Italian government initially refused the prosecutors’ request to get all the 26 CIA officials extradited.
Lessons from Sabrina De Sousa’s Case
- On 15 January an ex-CIA official of Indian American origin, Sabrina De Sousa ordered to be extradited to Italy by a Portuguese court for a secret operation carried out in 2003.
- Sabrina’s case, an eye opener for those in government who are loosely talking about more aggressive “covert” operations without facilitating necessary legal immunity.
- Bill to provide legal cover to intelligence agencies was introduced by the UPA government but could not be translated into a law.
- While CIA officials are granted certain exemptions that shields them from prosecution, no such safeguard exists for Indian intelligence officials.
No Respite for CIA Officials
However the prosecutors invoked the European Arrest Warrant (EAW) asking all EU member states to arrest them. The trial started in June 2007. This was said to be the first trial questioning the US practice of “extraordinary rendition”. The CIA officials were convicted in absentia on November 4, 2009 to varying degrees of prison sentences ranging from 3 to 10 years. Their sentences were enhanced by the appeals court & finally confirmed by the Supreme Court in 2012. Later some of the SISMI officials were pardoned by the Italian government.
Following the Supreme Court order, the Italian government started pursuing extradition proceedings for securing presence of convicted CIA officials. In July 2013 they asked Panama to stop the former CIA Milan Chief from going out of that country. However Panama allowed him to leave citing technical grounds. The officer had by then retired from the CIA.
Immunity for Intelligence Officials
Sabrina de Sousa who was working as a translator at Milan also retired from CIA in 2009. Following her conviction she sued the CIA and US government for failing to protect her by not claiming diplomatic immunity. The suit failed.
Also there was no certainty that she would have been saved even if this was done. Three other US employees who were granted diplomatic immunity and who were acquitted in 2009 were convicted in absentia when the appeals court reversed the judgement in 2013. Two were sentenced to six years and the third to a seven-year term.
Under the Public Law 81-110(1947) the CIA officials are protected and granted certain exemptions under section 7 in “the interests of the security of foreign intelligence activities”. Under Intelligence Identities Protection Act (1982) none can reveal the identity of CIA officials or their sources. However, this does not fully protect them from doing clandestine work abroad as in the Italian case. But in our case even this safeguard is not there. In India intelligence officers get only the same legal protection as any other employee doing non secret work. That is not adequate for their special work.
(The writer is a former Special Secretary, Cabinet Secretariat, and a member of the High Level Committee which enquired into the police performance during 26/11 Mumbai)
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