SpyTalk

On Tuesday the staff judge advocate of the 31st Fighter Wing at Aviano wrote to the Minister of Justice in Rome saying that Italy does not have criminal jurisdiction over Romano under a NATO status-of-forces agreement signed by all its members in 1951.

"Colonel Romano is subject to the Uniform Code of Military Justice, and the offenses alleged at the Tribunale of Milan are offenses that may be charged under various articles of the [UCMJ], wrote Lt. Col. Roger M. Welsh.

A copy of the Sept. 22 letter was obtained by SpyTalk.

"Therefore, the United States asserts it primary right to exercise jurisdiction over Colonel Joseph L. Romano III," Welsh said.

The prosecution of Romano and the other 25 Americans began over three years ago.

Defense Department spokesman Bob Mehal described the Air Force's claim of jurisdiction as kind of a legal Hail Mary pass.

"This action is being taken now because the trial is winding down and heading towards a verdict," Mehal said, in response to a query. "All other efforts at diplomatic or legal solutions appear to have failed.  There is no choice left but to assert at this point."

This manuver, too, may have failed, Mehal suggested.

The Italian judge denied a motion by Romano's lawyer to dismiss the case based on the Air Force's jurisdiction argument, according to The Associated Press.

The top Italian prosecutor, Armando Spataro, called the request ''unbelievable and a little bizarre,'' noting that it came 2 1/2 years after the trial began, the AP reported.

[Mehal later sent out a "correction" saying, "The trial judge did not, in fact, rule on the motion to dismiss from Col Romano's lawyer, but rather reserved judgment and will hear argument on that issue (NATO SOFA) on 30 Sep." Moments later he amended that to say, "there is still some confusion over exactly what the judge did or did not do in regards to the motion."]

"We are reviewing this decision, but hope and expect that the Italian government will adhere to its treaty obligations and respect our assertion of jurisdiction under the NATO SOFA," Mehal said.

Mehal also said the Pentagon was not challenging the facts of the case against Romano.

"Asserting jurisdiction in Col. Romano's case is not a comment on the merits of the trial proceedings in Italy or on the validity of the underlying allegations," he said.

Mark S. Zaid, a Washington attorney representing one of the CIA officers charged in the case, Sabrina De Sousa, was outraged by the U.S. government's apparent inconsistency in the cases of Romano and his client, who was officially assigned to Italy as a State Department officer.

"The immunity decision was approved by the White House (yes, President Obama himself, as well as other Cabinet Members and the NSC) at the personal urging of Secretary of Defense Gates, who sources have said has continually and appropriately been fighting to protect his officer against stern opposition from other agencies," Zaid said in an e-mail.

After DeSousa filed suit, the State Department agree to help pay her legal expenses.

"If the USGOVT is willing to pay for Ms. De Sousa's Italian legal defense, thereby essentially admitting that she was acting in the scope of her official employment while in Italy, why has the USGOVT refused to invoke diplomatic immunity?" Zaid said.
 
"What rationale exists to enable the Department of Defense to now invoke immunity for one alleged American conspirator but permit the USGOVT to intentionally abandon another?"