Sabrina de Sousa, a former federal employee who was sentenced in Italy to seven years in prison for her involvement in a CIA rendition of a Muslim cleric, sued the State Department in 2009 when it failed to invoke diplomatic immunity on her behalf. Mark Zaid, who has a national security practice and whom we profiled in Washington DC Super Lawyers in 2009, is fighting the government's motion to dismiss the case in federal district court. He's asked to provide the judge with classified information in de Sousa's defense, but the Obama Administration objected, saying it alone reserves the power to release classified information. Judge Beryl Howell gave Zaid until July 11 to respond in a written brief.
How are you going to answer?
[Laughs] I'm open to suggestions. The government is saying as a matter of law we cannot survive the motion to dismiss. I'm saying there are legal and factual issues at play that the judge needs to first hear, that are classified. Without revealing classified information I'm in breach of ethical obligations to the court to be forthright with the court, and I cannot ethically or professionally respond on behalf of my client's interest. This is a really separate battle now about the executive branch's power or authority to control the dissemination of classified information, even to the judiciary.
Have you revealed classified information in cases before?
Sure. And the government does it all the time in my cases.
The Obama Administration came in pledging transparency, but has been ...
Not in my world. There's no transparency in my world. In the national security world, the Obama Administration has continued to push further than the Bush administration. I suppose the difference between the two ... is that the Bush administration was quietly, covertly, privately, pushing operations ... like the warrantless wiretapping. The Obama Administration is more overtly, publicly pushing for greater authority over the national security environment. They are trying to minimize as much as possible any degree of oversight of the other branches.
Why do you think that is?
My own speculation is that the message of transparency that we heard came from Obama-the-man, the individual, and now we're hearing from Obama-the-president. And those are two very different things.
What compels the difference message?
I think, especially in the world of national security, when an individual becomes president, they find that the office controls them, rather than they controlling the office.
Do you think you will get very far on the classified information issue?
I think that we are just at the very opening throes of the battle-this is one battle in the war. I have this issue and related issues in a number of cases. It is very clear to me that this administration is going to push the envelope as far as it can. And essentially I'm trying to stop it. I think judges have become weaker in action-they're strong in tone but weak in action-in the national security field over the last 15 years. And I'm waiting for that brave judge to put their foot down and say this is not appropriate. We'll see if that happens.
And if your side does win, the court can force the government to invoke diplomatic immunity?
That is a very good legal question and that is a very difficult one, admittedly, to be able to compel. We amended the complaint to include some constitutional claims under the Fifth Amendment, and I'm more comfortable with those claims.
Any case against the U.S. government is difficult; any case involving the intelligence community is nearly impossible. I know going into these cases, the overwhelming likelihood is I'm going to lose when push comes to shove. The question is: Can I score any points along the way that would enable some positive or favorable resolution.
Those points being?
Pressure from the media; pressure from any of the other branches; pressure from the Hill. I mean at this hearing, I think the judge was somewhat incredulous saying, all legal arguments aside, is this really the message we're sending to federal employees: "If you get in trouble on our behalf, we're going to leave you without trying to do anything to help?"
Your client is a former CIA official?
The media has said that. We have never said that. We have only indicated that she was serving in Italy as a Foreign Service officer with the state department.
What is she like?
She's very bright; she's very articulate. It was a true loss to the U.S. government that she no longer works there.
There's a warrant out for her arrest?
There's a Europol warrant. ... [But] she's at risk anywhere in the world.
Why is the government denying immunity?
That's the $64,000 question.