ABSTRACT: The following text contains the "pro veritate" opinion on the constitutional legitimacy of the clandestine STAY BEHIND-GLADIO which Professor Giuseppe Volpe, professor of Constitutional Law at the University of Pisa, provided upon request of Roberto Cicciomessere, member of the Italian Parliament.

The opinion was sent to the President of the parliamentary committee of inquiry on terrorism, Libero Gualtieri, and it has therefore been included in the papers of the Committee.

Professor Volpe states that operation Gladio was constitutionally illegitimate, in that it violated the following articles of the Italian constitution: art.80 (The Chambers, by means of a law, authorize the ratification of political international treaties, of treaties that provide for an arbitrtion or judicial regulations or treaties that involve variations of the territory or modifications of laws); art.72, comma 4 (the normal procedure of examination and direct passage on the part of the Chamber is always adopted for parliamentary bills relative to constitutional and electoral matters and for bills relative to legislative delegation, to the authorization to ratify international treaties, the passage of budgets and final balances); art.87 comma 8 (The President of the Republic [...]. Accredits and receives the diplomatic representatives, ratifies international treaties, following the authorization of the Chambers if necessary).

In order to mend this illegitimacy, Professor Volpe suggests to resort to the Constitutional Court for conflicts of attribution between the powers of the State which each of the Chambers and/or the President of the Republic can raise vis-à-vis the Government.

Professor Volpe judges groundless the doubts on the constitutional legitimacy raised with reference to the following articles of the Italian constitution: art.18, comma 2 (Secret associations as well as organizations that pursue political aims, even indirectly, by means of military organizations, are prohibited); art.52, comma 3 (The structure of the Armed Forces is based on the democratic spirit of the Republic); art.97 comma 1 (public offices are organized according to the regulations of the law, in order to ensure their correct management and the impartiality of the administration).

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Pro veritate expertise on the constitutional legitimacy of the STAY BEHIND-GLADIO clandestine organization, by Professor GIUSEPPE VOLPE, professor of Constitutional Law at the University of Pisa.

1. With a letter of April 1991, I was requested to give a pro veritate expertise on the constitutional legitimacy of the organization at issue, with particular reference to the constitutional provisions of articles 80 and 87 which regulate the ratification of international treaties, as well as - from other points of view - respectively of articles 18, 52 and 97 of the Constitution.

First of all, it is my duty to inform that, as regards the cognizance of the facts which are the object of the juridical arguments, in addition to the records and the documents specifically quoted in the Expertise, I made us of the following Reports:

a) Presidency of the Council of Ministers, L'Operazione "Gladio", February 1991.

b) Presidency of the Parliamentary Committee of Inquiry on terrorism in Italy, Il cosiddetto Sid parallelo-Operazione Gladio, without date (but received in May 1991); as well as of the judgment filed on 10 October 1991, whereby the investigating judge of Venice declared his incompetence in the penal proceeding n.1/8 AG.I.

2. First of all, the agreement of 28 November 1956 between the Italian Intelligence Service (SIFAR) and the U.S. Intelligence Service (CIA) relative to the organization and the activity of the Italo-American Stay Behind Post-Occupation Clandestine Network makes it necessary to ascertain whether it falls within the competence of art.80 of the Constitution ("The Chambers, by means of a law, authorize the ratification of international treaties which are of a political nature, or provide for arbitrations or judicial regulations or treaties or involve territorial variations or involve financial burdens or modifications of laws"); if that is the case, whether the procedures for the stipulation, coming into force and implementation, as well as the contents of the agreement, are compatible with the above quoted constitutional provision.

It has been maintained (refer, among others, to the Expertise of the General Attorney of the State, issued to the Presidency of the Council of Ministers on 7 January 1991, from which the following quotations were taken) that the Agreement at issue "is not an international treaty, but represents the fulfilment and implementation of the NATO treaty passed with law n. 465/49", with the consequence that "it was therefore not necessary nor possible, given the secrecy which was meant to surround the operation, to submit the agreement to the approval of Parliament, in enforcement of art. 80 of the Constitution".

The thesis which depicts the Stay Behind Agreement (dubbed "Operation Gladio" on an national scale) as a conventional act of mere fulfilment or application of an international treaty previously passed by Parliament (in this particular case, of the North Atlantic Treaty, signed in Washington on 4 April 1949 and authorized for ratification with law n. 465 of 1 August 1949) cannot be endorsed for the reasons stated hereinafter.

Following is a quotation of article 3 of the above Treaty (commonly referred to as "NATO-Treaty"), with special reference to the Stay Behind Agreement, which deals with the question of the capacity of the contracting parties to resist an armed attack, prescribing that:

"In order to better achieve the objectives of this treaty, the parties will maintain and develop their individual and collective capacity of resistance to an armed attack, operating both separately and jointly, in a continuous and effective way, by developing their resources and assisting each other".

Significantly, the Chamber majority Report by Member of Parliament Ambrosini (2nd Committee Report - foreign affairs - 8 July 1949 - doc. 608/A, quoted in Le Leggi, 1949, p. 688 and following) article 3 of the Treaty is indexed under "Potenziamento della capacità a resistere alle aggressioni", and as to its contents, it states that:

"concerns the preventive measures which the parties should begin to take in the general anticipation of the possibility of an armed attack against any one of them...thus asserting the principle of self-defence and of mutual assistance, and the

obligation, for the Parties, to develop their own means for this purpose, in order to be in the conditions of defending themselves and assisting the others".

The same Report specifies that

"article 3 does not specify the extent to which each Party should see to the development of its own means in order to maintain and enhance its capacity to resist an armed attack. As emphasized by the report of the U.S. Senate Foreign Affairs Committee, the specification of this obligation depends on a series of factors which are obviously different for the various Parties" (underlining by the author of the present expertise).

As far as the delicate problem of the prevention of possible armed attacks is concerned, from an organization viewpoint it is necessary to refer to article 9 of the NATO-Treaty, which prescribes that:

"With the present provision, the parties establish a Council, in which each of them will be represented, which will have the task of examining the matters relative to the application of the present treaty.

Such Council shall be organized in a such a way as to be able to meet rapidly at any moment. The Council will appoint the necessary auxiliary organs and, in particular, will immediately appoint a defence Committee which will recommend the measures for the application of articles 3 and 5".

Essentially, the above provision explicitly charges the defence Committee (which the Ministers of Defence of the contracting Countries take part in) also with the job of preparing the measures for the application of the aforementioned article 3 of the Treaty as a priority. As already underlined by the above mentioned Ambrosini Report at the Chamber, the exceedingly general, "loose" provisions of article 3 intrinsically call for specifying interventions on the part of the organs established by the Treaty before they are concretely implemented in and among the different NATO member States.

Lastly, as far as the internal implementation of the Treaty is concerned, it is necessary to recall the general principle established by article 11 of the Treaty, according to which:

"The present treaty will be ratified, and the provisions contained in it will be applied by the parties in conformity with their respective constitutional procedures".

3. Having outlined the normative parameters of reference (as regards to which the Stay Behind Agreement would assume an executive-implementing function), it is necessary to analyse the essential contents and the procedural aspects of the Agreement above (analysed in the text sent by the Prime Minister to the President of the Committee of Inquiry on terrorism on 28 February 1991); the document is typed on white paper, without heading and without the names of the signatories: as far as the authenticity of the document is concerned, refer to the statements of Andreotti in his function of Prime Minister before the Senate of the Republic in the afternoon session of 25 July 1991, pages 42 and following of the Stenographic Account, 558th public session - Xth legislature).

On the basis of such document, the contracting parties of the Agreement are the Italian and the U.S. Intelligence Services (the Italian Defence Staff itself seems to have been informed of the Agreement and of the structures established on the basis of it only in 1959; Refer to the Sifar Document of 6.3.1972, signed by Colonels Serravalle and Fortunato); the object of the latter is "cooperation in the organization, training and operative activity of the Utalo-American post-occupation clandestine complex (Stay Behind), planned to become operative in the event of an occupation of the Italian territory on the part of an enemy aggression aimed against the security of the NATO powers".

In other words, the aforesaid "Italo-American clandestine complex", organized and trained in advance, was meant to become operative in the hypothesis that, in connection with an enemy attack against the security of the "Powers" belonging to NATO, the Italian territory be occupied.

The question, whether the peculiar circumstance and the specific objective of the Stay Behind Agreement can basically be included in the more general ones envisaged in article 3 of the Nato treaty, can be answered affirmatively.

As a matter of fact, the preparation of a clandestine network devised to operate on a territory occupied by forces hostile to the NATO countries objectively represents a possible preventive measure for the resistance against the possibility of an armed enemy attack, and belongs to the objectives of enhancement of the capacity to resist the aggressions described in the above mentioned art. 3 of the Treaty.

Such objective connection in itself does not appear to be invalidated neither by the objection that the Agreement contains no explicit reference to the Nato-Treaty and even less so to its alleged base-norm (article 3), nor by the further objection that the Agreement was made not between Italy and the Nato member countries, but between Italy and a single Nato "power", the United States of America.

The first objection can be considered merely formal, and therefore it can be overcome by pondering the fundamental significance of the Agreement's objectives; the second objection can be overridden by the consideration that the formulation of article 3 of the Nato-Treaty in its genericness enables the parties to act for its implementation in a joint and even individual manner.

4. The Stay Behind Agreement's extraneousness to the NATO Treaty can be fully grasped by considering the procedure relative to its stipulation and entry into effect in the light of the provision of article 9 of the aforesaid Treaty, which explicitly charges the defence Committee, the auxiliary organ of the NATO Council, to recommend the necessary measures for the application of article 3.

On the contrary, such Agreement - as far as we know today - was reached and stipulated only by the Intelligence Services of Italy and the U.S. (SIFAR and CIA), in the absence of any intervention on the part of the aforesaid defence Committee (consisting, as we said before, of the Ministers of Defence of the NATO member countries).

Thus, from a procedural point of view, the Agreement cannot be included in the provision of article 9 of the Treaty, in the part in which it regulates the conditions of application of article 3; on the other hand, it seems to have been stipulated in violation of the general principle laid down by article 11 of the NATO-Treaty, which establishes that the provisions contained in the Treaty will be applied by the parties in conformity with their relative constitutional procedures (this point will be further examined hereinafter).

In conclusion, even if the Stay Behind Agreement, in terms of its purpose and its contents, can be abstractly included among the measures of application of article 3 of the Nato-Treaty; by analysing the concrete procedures followed for its stipulation and entry into effect from a subjective viewpoint, it appears to be completely extraneous to the previsions contained in the Nato-Treaty and in their pre-established conditions of application and implementation.

Concerning this point, it is important to underline that such reconstruction is fully corroborated by the aforesaid statements of the Prime Minister before the Senate during the session of 25 July 1991:

"I would like to point out to the signatories of the motion that on 11 January I underlined before the Chamber that (quoting verbatim) 'this structure called Gladio, established by a bilateral treaty signed by two countries belonging to the Atlantic Alliance, was and remained exclusively national: however, in the course of time its activities were increasingly programmed and coordinated in the context of NATO'".

The above is the authoritative political confirmation of the findings of the juridical survey: the institution of the Stay Behind-Gladio clandestine structure occurred through a bilateral agreement reached by the Italian and the U.S. Intelligence Services (not by the "two countries", that is, by the Governments of the two countries); therefore, though it may in theory be included in the measures contained in art. 3 of the Nato Treaty, the aforesaid structure was established and achieved outside of the procedures laid down by the same Treaty in articles 9 and 11 (refer to infra, par.8 on the subsequent inclusion of the activities of "Gladio" in the sphere of Nato).

5. According to the above conclusion, there ensues that the SIFAR-CIA Agreement of 28.11.1956 - contrary to the statements contained in the Expertise of the Law Officers - cannot be technically considered as an act of execution-implementation of the NATO Treaty, with the further consequence that the stipulation and the entry into effect of it should be analysed - from a strictly constitutional viewpoint - first of all in the light of the provisions of the aforesaid art. 80 of the Constitution, as well as of art. 87 of the Constitution, in the part in which it charges the President of the Republic with the task of ratifying international treaties, upon the authorization of the Chambers, if necessary (comma 8).

Article 80 of the Constitution contains the principle of the need for the Chamber to authorize, by means of a law, the ratification (which is the task of the President) of international treaties which a) are of a political nature; b) provide for arbitrations or judicial regulations; c) involve territorial variations; d) involve financial burdens; e) involve modifications of laws.

For the treaties that cannot be included in the above five categories not only there is no need for the previous legislative authorization of the Chambers for the ratification, but - contrary to the provisions of art. 87 comma 8, of the Constitution on the indefectible ratification power of the President - the prevailing praxis is that of reaching agreements "in simplified form", i.e. signed and implemented simply with the signature of the representatives of the Government, and therefore "enacted" and implemented without even the presidential ratification (a praxis which has become ius quo utimur, and justified in several ways and degrees in jurisprudence and in doctrine).

In this particular case, those who acted "in representation" of the Italian Government were the Heads of the Intelligence Service (SIFAR); refer to infra, par. 10 on the government officials' actual cognizance of the creation of the clandestine network.

Having excluded its nature of executive and implementation act of an approved Treaty, it is necessary first of all to ascertain whether the Stay Behind Agreement of 28.11.56 can be included, in terms of contents, in one of the categories of treaties for which art. 80 of the Constitution prescribes the participation of Parliament to their formation by means of a law authorizing the ratification (thus ruling out the possibility and legitimacy of any "simplified" implementation procedure).

The Agreement at issue, as it described in the above mentioned text in pa.3, under three aspects evokes the categories listed in art. 80 of the Constitution.

First of all, it can be said to be a treaty of a "political nature" according to the definition which the most authoritative interpreters provide of this formula (a typical flexible and unspecified concept): "any treaty having a direct and manifest relevance for the entire State community or for the operation of the State-apparatus, or which in any case involves bonds that have a considerable effect on the foreign policy of the Republic", and which therefore lastingly binds the foreign policy of one State vis-à-vis the other States" (See C. MORTATI, Istituzioni dir. pubbl., 9 ed., II, Padova, 1976, 683 and following; A. CASSESE, in Commentario della Costituzione a cura di G. Branca, artt. 76-82, Bologna-Roma, 1979, pagg. 161 e segg., also for a compendium of the expertises on the subject).

In such context, in the wake of specific indications ensuing from the proceedings of the constituent Assembly, agreements of military cooperation (alliances) as well as of cooperation in the technical-military field (concession of bases) have been considered as examples of political treaties.

The application of similar criteria (which should at least influence the Government's decision to activate or not the procedure of legislative authorization to the ratification) to the Stay Behind Agreement enables to consider it as a treaty of a "political nature".

From the point of view of the "relevance for the State community and/or for the operation of the State-apparatus, it is enough to recall the objective and extraordinary incidence on the fundamental interest of national security which is intrinsic in the planning, organization and operation of an Italo-American "network" trained to operate, albeit in given circumstances, in the fields of Intelligence, Sabotage, Escape and Flight, Guerrilla Warfare and Propaganda; moreover, the similar incidence on the operation of the apparatuses and of the military strategies of the State which is intrinsic in the choices relative to the aforesaid "network" on the Italian territory (considering also the bonds of hospitality in the aforesaid bases assumed vis-à-vis missions of the U.S. Intelligence Service both for ordinary training and for possible common operative directions).

6. It is self-evident that the vital requirements of secrecy unavoidably imposed by the object of the Agreement (organization and operation of a clandestine network) should have limited the intervention (both the discussion and the decision) of Parliament to the political meaning of the Agreement, and certainly not to its conditions of implementation (Cf. M. FRANCHINI, M.SEGNI AND C. DELL'ACQUA, in Il trattato segreto, Padova, 1990, respectively at page 301 and following., 336 and following and 228 and following, which recall similar distinctions in several cases, including the ITALIAN-U.S. agreements on the so-called SDI space shield, 1984; on the installation of the bases of the Jupiter missiles, 1959; on the navy base in the island of La Maddalena, 1972).

Thus, it seems that contrasting principles and interests which are nonetheless corroborated by the Constitution were allegedly balanced: the one according to which the exposition of any bond to the exercise of the sovereignty of the State (apart from the circumstance of article 11 of the Constitution) should be based on the specific legislative deliberation of Parliament which represents the people (art. 1 of the Constitution) and the one according to which the security itself of the State (in the primary sense of the safeguard of its existence, integrity, unity and independence, art. 5 of the Constitution) in given hypotheses - even vis-à-vis Parliament - call for secrecy concerning the activity - including the military one - of the State.

The latter principle has been correctly expressed by the disposition of art. 82 comma 2 of the Constitution (concerning limitations in the power of investigation of the parliamentary committees of inquiry themselves), by the guidelines of the constitutional law (especially by the fundamental sentence on the subject n. 86 of 24 May 1977) and by the constant regulations on State secret.

Such regulations, at the time in which the Agreement of 28 November 1956 was stipulated, consisted of royal decree n. 1161 of 11.7.1941, article 1 of which and relative enclosure banned the divulgence of a series of news relative to military matters; of royal decree n. 1256 of 24.9.1931 which excluded the decrees "the divulgation of which could damage the interests of the State" (art. 7) from publication; as well of the provisions of the penal code which regulated State and military secret under many aspects (articles 256-263: in particular, art. 256 comma 2 establishes that "among the news that should remain secret in the political interest of the State there are those contained in acts of the Government, which the latter does not publish for domestic or international political reasons"; see also article 257: "news that should remain secret in the interest of the security of the State, or in any case in the domestic or international political interest of the State").

As we know, the safeguard of the aforesaid secrecy requirements was subsequently re-defined by law n. 801 of 24.10.1977, and especially by art. 12 of the same.

On the other hand, the requirements of publicity and transparence of the action of the public powers are they too based on principles laid down by the Constitution (as highlighted by the aforesaid Expertise of the Law Officers), especially in articles 1 on the popular sovereignty; 3 comma 2 on the popular participation to the organization of the country; 94, on the political responsibility of Government vis-à-vis Parliament; 97, on the impartiality of the Public Authority (and have been subsequently implemented with law n. 839 of 2.12.1984 and consolidation act n. 1092 of 28.12.1985 concerning the publication of the normative papers, including all the acts and international agreements, see article 13 of the consolidation act; as well as in the recent law n. 241 of 7.8.1990).

Therefore, the necessity to find a balance between governmental secrecy and political control of Parliament ex art. 80 of the Constitution (and between reserve and publicity of the administrative activity) should have imposed on the one hand to charge the Chambers with the political decision on the existence and on the object of the Agreement, and on the other hand to keep them in the dark about the clauses of the Agreement relative to the technical-operative and military aspects (to be implemented by means of administrative acts and measures).

In conclusion, from the point of view of the categories of treaties envisaged by art. 80 of the Constitution, the Stay Behind Agreement involves "financial burdens", as unmistakably proven by the series of commitments taken on by the Italian Intelligence Service envisaged in par. 3 of the above Agreement, sub a, especially in points n. 2, 3, 5, 7, 9 and 10; thus, from this viewpoint as well, it can be said to belong to the categories of treaties for which art. 80 of the Constitution prescribes the legislative authorization to the ratification.

Lastly, the Agreement involves "modifications of laws"; and precisely of law n. 465 of 1 August 1949, which authorizes and makes operative the ratification of the Nato Treaty of 4.4.1949, in that it modifies the procedures envisaged by it for the application of art. 3 of the Treaty (if we want to include the contents of the Agreement in this provision).

It is worth recapitulating that - on the basis of the available evidence - the Agreement was made and implemented directly between and by the Intelligence Services, in the absence - at least - of the measures recommended by the Defence committee (art. 9 of the Treaty), of the legislative authorization of the Chambers and of the ratification of the President of the Republic (art. 80 of the Constitution and art. 11 of the Treaty): it can be said to be illegitimate because it violates articles 9 and 11 of the NATO Treaty, and unconstitutional because it violates articles 80, 72 comma 4, and 87 comma 8 of the Constitutional (the first two concerning the "assembly" saving clause for the ratification authorization, the third concerning the presidential power of ratification of international treaties).

7. The judgment of unconstitutionality and of illegitimacy expressed above on the Agreement at issue does not seem liable to change as a result of the considerations relative on the one hand to the events that preceded the stipulation of the Agreement and on the other hand to those which followed it; as a matter of fact, it is corroborated by such events.

First of all, the title of the Agreement of 28.1.1956 itself points to the fact that it is a restatement of previously existing agreements between the Italian Intelligence Service and the U.S. Service relative to the organization and operation of the Stay Behind post-occupation clandestine network (concerning this point, refer to the first document sent by the Prime Minister to the aforesaid parliamentary committee of inquiry on 24.10.1990).

Already on 8 October 1951, the head of the Italian Intelligence Services sent a "memorandum" called "Operative-informative organization on the national territory liable to enemy occupations". Such memorandum underlined the requirement that in the event of an occupation of the national territory, a resistance network be ready to operate.

Significantly, the aforementioned "memorandum" contains the statement that SHAPE (the Supreme NATO military organ in Europe)

"has to this moment considered the problem only in theory, and intends to ask the national General Staffs about the measures they have taken, in order to coordinate, and as far as possible standardize, the applications, assuming the supreme direction of them".

The fundamental lack of interest and therefore extraneousness of the NATO organs vis-à-vis the initiatives at issue, both of the NATO member States and of non-member states, is further corroborated by the "Memorandum of 23 November 1959 of the Defence Staff - Intelligence Service of the Armed Forces - concerning the "Relations between the Italian Services and the Related Services as regards the S/B programs", and which represents a sort of resume of that which had occurred to that moment.

Such "memorandum" describes the offers of cooperation and the relative pressure for S/B agreements made - in competition - by the British and the U.S. Services on the Italian ones, and the fundamental preference granted by the latter to the U.S.; in particular, under the date of "28 November 1956", the following is stated:

"On the basis of the previous agreements which have lead to the allocation of funds for over L.300 million on the part of the U.S. Service for the construction of the Operative-Training Base in Sardinia, the Italian Service and the U.S. Service stipulate a 'restatement of the agreements between the Italian Intelligence Service and the U.S. Intelligence Service relative to the organization and the operation of the Italo-American clandestine S/B network".

In conclusion, the following objective elements emerge from the events that preceded the Sifar-Cia Agreement of 28.11.1956:

a) previous agreements between the Italian and the U.S. Intelligence Services had already lead to the allocation of funds for the construction of an operative base of the post-occupation clandestine network;

b) the extraneousness of the NATO military organs in the aforesaid initiatives and agreements, including "the restatement" of 28.11.1956, all concluded "exclusively" between the above mentioned Intelligence Services.

Such elements, far from invalidating them, corroborate the conclusions reached on the non-inclusion of the Agreement or of the agreements at issue in the context of the execution or implementation of the NATO Treaty and, therefore, on the ascertained constitutional illegitimacy, with reference to articles 80 and 87 of the Constitution.

8. Similar considerations should be made as far as the events following the stipulation of the Agreement of 28.11.56 are concerned.

It has been maintained (refer especially to the aforesaid Expertise of the Law Officers) that:

"the insertion in the NATO organization of the Stay Behind clandestine complex - Gladio in Italian - which, as far as is known, is structured in a similar way to the homologous organizations of other countries of Western Europe, occurred at once with the admission of the Italian representative in the Clandestine Planning and Coordination Committee (1959), with the admission of Italy in the Allied Clandestine Committee (1964) with the forwarding to the Italian military authorities as well, of the SHAPE directives for unorthodox warfare";

(refer also to the aforementioned statements of the Prime Minister during the Senate session of 25.7.1991).

The configuration of the above elements as evidence of the "inclusion in NATO context" of the S/B-Gladio structure cannot be shared.

The admission - as of March 1959 (about 2 and a half years after the "last" S/B Agreement of 28.11.1956) and upon the request of France - of the Head of the Sifar's R Office in the Clandestine planning Committee (C.P.C.) can be considered as the sign of an achieved coordination of certain activities of the Italian Services with an organ, the C.P.C., which was certainly operative in the context of SHAPE and therefore of NATO; however, it does not represent a convergence or an insertion of the S/B-Gladio structure in the organization of Nato (the chief task of the C.P.C. is coordinating, through the issuing of directives, the "offensive" intelligence activity in the event of a war, with special regard to the territories liable to be occupied by the enemy). Concerning this point, refer to the Memorandum of 9.2.1959 of the Sifar - D Office - signed by Col. Viggiani, which states that:

"it would be appropriate for the Service to be present in such Committee, at least to follow its activity"; more on the matter is contained in the SID Memorandum of 16.1.1969 ("Saceur Directives for Unorthodox Warfare"), which specifies that

"The Service has contacts with the above mentioned Committee (CPC) as regards the treatment of special clandestine operations in support of Saceur operations in wartime"

and confirms

"the competence of the National Authorities in the planning and conduction of unorthodox warfare in territories controlled by the enemy",

even if in the context of the coordination of the Nato organs.

The same meaning should be attributed to the admission of the SIFAR (upon the invitation of a German general who was pro tempore president) in the Allied Clandestine Committee - A.C.C. - as from April 1964 (over seven years after the last S/B Agreement of 28.11.1956). In this case too, the Italian participation simply represents a mechanism of cooperation and coordination of certain activities of the Italian Intelligence Service with those of other NATO member States (but also with non-members); in particular, the activities relative to the preparation of networks of escape and flight (which is the task of the A.C.C., an emanation of the C.P.C. and, through the latter, connected to SHAPE); Refer to the SIFAR memorandum - R Office - of 17.1.1964.

Even the circumstance that, as from 1969 and with periodical updates, the SACEUR directives for the conduction of unorthodox warfare (see the Sifar Memorandum of 6.3.1972 signed by Colonels Serravalle and Fortunato) were divulged by SHAPE through the C.P.C also to the Italian Intelligence Services documents the progressive enhancement of the functional planning and coordination of the activities of the national Intelligence Service in a NATO context. All this, however, cannot be defined - ambiguously and with an obvious logical discrepancy - as an inclusion or convergence from an organizational viewpoint of the S/B-Gladio clandestine network in the structures of the Atlantic Alliance. The inclusion which, considering the bilateral nature of S/B-Gladio, could not have been decided unilaterally by our Government or by our Intelligence Services, should have been at least preceded by a previous agreement with the U.S. part (it is worth noticing that on the basis of a Document supplied on 20.5.1991 to the Procur

ator of the Republic of Rome by the Secretary-General of the Presidency of the Republic, in Germany too the Stay Behind organization represented a "chief organization" of the national BND Intelligence Service, and not "an integral part of Nato").

9. The aforesaid essential distinction between functional coordination in NATO context and (entirely "national") organizational inclusion of the Gladio structure emerges verbatim from the Document of 1 June 1959 of the R Office - SAD Section of the Armed Forces Intelligence Service called "Le "forze speciali del Sifar e l'operazione "Gladio"", which "has the purpose of specifying the situation of the common program for Operation GLADIO".

The document opens with the following statement:

"The possibility of a situation of emergency entirely or partially involving the territory of the NATO countries as a result of internal subversion or military invasion forces, has long since been the object of research and consequent plans, some of which on a NATO scale and others on a national scale".

The Document then lists the plans on "NATO scale" and on "national scale" separately.

The first include the participation of the SIFAR in the activities of the C.P.C., while the agreements between the Italian and U.S. Intelligence Services for the achievement of Stay Behind-Gladio (including the Agreement of 26.11.1956) are listed exclusively among the initiatives and plans on a "national scale".

It states that the Agreement of 28.11.1956 "lays down the commitments of the two Services for the organization and the conduction of the "common" Operation, and that it is based, for the U.S. part, on the premise that "the plans of the Italian Defence Staff envisage the enactment of all efforts to maintain the island of Sardinia" which is the seat of the Operation.

For its part, the U.S. Intelligence Service further specified, on 7 October 1957, that its support to the base "is envisaged by the war plans of the United States of America".

It is clear, therefore, that the single specific strategic references of the S/B Operation, far from being included on a NATO scale, are contained in the relative military plans of Italy and of the U.S.

The same document contains the rather vague statement that the "Gladio" preparations concern "the territories and the populations which should unfortunately experience" not only "an occupation", but also "subversion", and that these same preparations are aimed at safeguarding not only the integrity of the territory but also the integrity of the "legitimate authority of the State". Such statements, albeit generic and ambiguous, have lead some to believe that the aims of Operations Gladio went beyond the action of prevention against possible attacks and/or enemy territorial occupations, and that they also included the purpose of a prevention of possible internal subversion. Such hypothesis, if verified, would further remove - in terms also of contents and purposes - the S/B agreements and networks from the specific aims of art. 3 of the NATO Treaty (See infra, par. 12).

In any case, setting aside such hypothesis (because of a lack - to date - of sufficient evidence), it is ascertained that also for the "events" following the Sifar-Cia Agreement of 28.11.1956, it is should be radically excluded that they served the purpose of placing the S/B-Gladio clandestine structure under the organization and direction of NATO.

10. The unconstitutionality, with reference to articles 80, 72 comma 4, and 87 comma 8, of the aforesaid Agreement of 28.11.1956 calls for an examination (from a strictly constitutional viewpoint) of the problem of its actual subjection to a penal procedure, and of the means to be used for the purpose.

As I underlined hereinabove, the Agreement at issue is characterized by the anomalous circumstance of having been stipulated and signed by the Intelligence Services and therefore of having been applied without the intervention of formalizing acts, either by a secondary administrative source (ratification decree of the Head of the State - the so-called simplified procedure) or by a primary source (law authorizing the ratification). There ensues the illegitimacy and the invalidity (according to some - Cf. M. FRANCHINI, cit. p. 320, the radical invalidity for absolute lack of power) of an administrative activity which - completely dodging both the parliamentary control and the control of the Head of the State - can be considered at the same time as a direct source of international commitments, means for the reception of the latter in the domestic regulations, execution and practical measure of implementation of the same.

At any rate, there seem to be elements that point to the fact that most - but not all - of the Prime Ministers and of the Ministers of Defence who served after the date of the agreement in the different cabinets knew about the Agreement of 1956 and of the clandestine structure which this agreement established and/or made official (being in a certain sense "indoctrinated" by the Intelligence Service) (on the basis of the SIFAR and SISMI documents relative to the "indoctrination" of the Prime Ministers, of the Ministers of Defence and of the Chiefs of Staff - the latter officially "indoctrinated" as of 1959).

Particularly relevant as regards this subject are the statements before the parliamentary Committee of Inquiry on terrorism in Italy during the hearing of 5 December 1990 by P.E. Taviani, Minister of Defence from August 1953 to July 1958. According to such testimony (in particular, pages 19 and 20 of the Account), the Prime Minister (Segni) and the Foreign Minister (Martino) were surely informed about the Sifar-Cia Agreement of 28.11.1956. In particular, the latter, having consulted "a certain number of jurists", concluded that the aforesaid Agreement need not be submitted to the Chambers, as it consisted of "inter-services agreements"; it seems that the President of the Republic (Gronchi) and the Vice Prime Minister (Saragat) were informed of such conclusion.

On the basis of such premises concerning the nature of the acts and of the behaviours, the means which could be used in our system to enable the ascertainment of the constitutional conformity of the preocedures followed for the stipulation of the above Agreement of 28.11.1956 (and possibly also of previous such agreements) is that of a conflict of attribution between the powers of the State, in conformity with art. 134 comma2 of the Constitution.

The conflict could be raised before the Constitutional Court both by Parliament, rectius by each of the two Chambers through their respective Presidents - both by the Head of the State vis-à-vis the Government as the only organ responsible for a procedure which damaged the constitutional competences both of the Chambers and of the Head of the State in point of authorization and ratification of international treaties (nor can the hypothesis of an impeachment of single Ministers and Prime Ministers be a priori ruled out, even if they are no longer in charge, if, in the exertion of their functions, they had committed the offences contained in art. 96 of the Constitution in the modified text of art. 9 of the 1st Constitution n. 1/1989).

The subjection of the Agreement at issue to a penal procedure through the conflict of attribution and the consequent decision of the constitutional judges could however be considered as merely theoretic hypotheses (considering that the Agreement cannot be subjected to art. 46 of the Convention of Vienna, stipulated after it, in 1969, and ratified by Italy in 1974, which establishes - in given cases - the invalidity on an international scale, of an Agreement concluded by a State violating a disposition of its domestic law on the competence to stipulate treaties).

On 27 November 1990, the Government "decided the suppression of Operation Gladio and the cancellation of the entire organization related to it" (Cf. the Report prepared by the President of the aforesaid Parliamentary Committee on Inquiry on Terrorism, page 45, as well as the letter of 23.11.1990 of the Prime Minister to the Minister of Defence).

If the aforesaid governmental provision meant - as it seems to - Italy's complete disengagement from the Agreement of 28.11.1956, this would have exhausted its effects for the future; however, the effects that the Agreements produced before 27 November 1990, which are still valid, remain.

The current and concrete interest in resorting on grounds of conflict of attribution of those powers (the two Chambers and the Head of the State) which have suffered a damage of their competences as a result of the unconstitutional stipulation procedure of the Agreement would base itself precisely on such persistence of the effects produced and in the consequent intervention of having them invalidated and canceled ex tunc, in that illegitimate.

In other words, such appeal seems to be perfectly appropriate to effectively achieve the aim of causing - through the sentence of the Constitutional Court - the cancellation, in that illegitimate, and the juridical elimination ex tunc of the Sifar-Cia Agreement of 28.11.1956, as well as of its past and perduring effects (agreement and effects which no one has invalidated from no point of view).

Clearly, there remain the powers of the ordinary and administrative judicial authority respectively not to apply and if necessary cancel the administrative acts (normative and non-normative) which represent a direct implementation of the Agreement which could be invalidated by the Constitutional Court.

11. As we know, doubts of constitutional legitimacy have been raised vis-à-vis the Agreement of 28.11.1956 and of the organization which it engendered, under many aspects.

In particular, it has been maintained that the above mentioned organization, because of its characteristics (secrecy, militarization, etcetera) is subjected to the ban laid down by art. 18 comma 2 of the Constitution; moreover, it has been questioned whether the possibility of using the same organization also in the case of possible internal conflicts is in specific contrast with the democratic inspiration (art. 52 comma 3) and, more generally, with the bond of impartiality (art. 97 comma 1) prescribed by the Constitution of the Armed Forces.

Such objections however seem to be groundless.

Doctrine and jurisprudence jointly draw the correct belief from the historical and systematic ratio and from the letter of art. 18 that the constitutional provision conceives freedom of association as a sphere of autonomy of private individuals, and a fundamental projection of individual freedom, leaving the formative moment, the aims and the organization of the group to the exclusive willingness of the freely associated citizens (compare A. PACE, Problematica delle libertà costituzionali, Parte speciale, II, 1988, 333 and following, also for jurisprudential references).

It cannot be objectively stated that the above "willingness" on the part of the citizens can be found in the S/B-Gladio organization, so that this may be called a "free association of citizens".

On the contrary, the organization herewith examined can be considered an organ of the Military Authority both for its conditions of constitution (carried out by the Armed Forces Intelligence Services) and for the inclusion in it of the adherents (achieved through activities of selection and recruitment carried out by organs belonging to the Armed Forces) and for the organizational structure (entirely decided by military organs of the State) and for the public and general aims which it pursues (resistance in the event of an enemy occupation of the national territory).

We must therefore conclude that art. 18 of the Constitution and its bans to the S/B-Gladio Organization cannot be applied - ratione materiae - and that therefore - from this viewpoint - the doubts of constitutional legitimacy raised against the Agreement of 28.11.1956, in that it established the aforesaid organization, are groundless.

12. A similar conclusion can be reached also with reference to the objections raised on the basis of the aforementioned articles 52 and 97 of the Constitution.

The usability of the S/B-Gladio organization on the part of the military and governmental Authority for the solution of internal conflicts seems to be extraneous to the ratio and to the letter of the bilateral Agreement of 28.11.1956 reached between the Italian and the U.S. Intelligence Services - which, as far as is known, was never modified and/or extended with respect to its original aims; this is corroborated by the aforesaid Sifar memorandum of 6.3.1972 signed by Colonels Serravalle and Fortunato, which explicitly rules out "the possibility of using the "Gladio" organization in cases of internal subversion (mentioned in 1959...) which is not envisaged by the Stature of "Gladio" and is not corroborated by NATO directives or plans...and thus in no case to be considered among the aims of the operation at issue" (nonetheless, the document concedes that in April 1966 "an exercise of rebellion and counter-rebellion was carried out on a national scale and, in any case, reserved to cadres only").

As we said, the aforementioned Document of 1 June 1959 of the SIFAR's R Office - SAD Section - (called Le "Forze speciali" del Sifar e l'operazione "Gladio"), contains expressions (such as "subversion"..."serious offences to the legitimate authority of the State") on the basis of which some have deduced the usability of the structure also for the solution of civilian internal conflicts (with the consequent deployment of the Armed Forces in favour of some of the parts in internal conflict, in disrespect of the duties laid down by articles 52 and 97 of the Constitution). A similar belief has been inferred also from the fact that the "Gladio" structure allegedly incorporated the former partisan formation "Osoppo", already operating in Friuli and transformed into Ready Use Unit (UPI), as the Sifar Memorandum of 6.3.1972 signed by Serravalle and Fortunato seems to confirm.

The hypothesis of the use of "Gladio" for internal purposes is clearly outlined in the sentence of incompetence issued by the Investigating Judge of Venice, filed on 10 October 1991 in penal procedure n. 1/8 AG.I.

However, from a certain point of view, the genericness and the ambiguity of such formulas has been underlined, as witnessed by the circumstance that they could be plausibly interpreted in the sense of "use of the organization to oppose the violent subversion of the constitutional and democratic order" carried out by internal elements but on the occasion of a situation of warfare, and in support of the enemy invasion military forces" (compare the aforementioned Expertise of the Law Officers, page 11); in other words, attributing a meaning which is compatible with the constitutional principles.

On the other hand (and it is the decisive consideration), any alleged use of the structure de qua for aims other than those envisaged by the Italian-U.S. Agreement of 28.11.1956 implies the illegitimacy of the behaviours and responsibilities - including penal ones - of those who allegedly achieved and/or authorized such use; however, all this does not involve a constitutional illegitimacy of the Agreement and of the organization which it engendered from the point of view of articles 52 and 97.

Such conclusion applies also to the alleged use of the Gladio organization both for the enactment of secret plans prepared in 1964 by the General Command of the Carabinieri, and, more recently, for the - alleged - performance of internal intelligence tasks in the field of antiterrorism, organized crime and industrial security as well as of the battle against the mafia and drugs, in violation of the competences which belong exclusively to the SISMI and to the SISDE on the basis of law n. 801 of 24.10.1977; on this point, compare the Prime Minister's memorandum to the Minister of Defence of 23.11.1990.

In conclusion, the "deviations" that can be ascertained in the concrete activity of an organ and in its subsequent illegitimacy cannot involve also the illegitimacy of its constitution and of its constitutional sources.

It is obvious that the enactment of the reform of the Secret Services, implemented with the aforesaid law n. 801/1977, should not have enabled the further, autonomous survival of the Gladio structure, but rather its complete assimilation into the new Services within six months of the entry into effect of the above law, according to the conditions laid down by art. 10.

From the above mentioned letter of the Prime Minister of 23.11.1990 there emerges the fact that the Executive Committee for intelligence and security services (CESIS), subjected to the direct control of the Prime Minister (art. 31 n. 801/1977), was never informed of the "Gladio" network (which was effectively dissolved four days after the above mentioned letter of the Prime Minister to the Minister of Defence).

If confirmed, such "illegitimate survival" would raise consequent problems of political and juridical responsibilities, including responsibilities of omission, on a domestic scale; problems that lie outside of the matters of constitutional legitimacy hereby dealt with (compare the SISMI Memorandums of 30.12.1985 and of 18.2.1986 which tackle the problem of the coordination between the SISMI and the General Staff of the Armed Forces for Operations of Unorthodox Warfare).

13. Summarizing all the above, it can be said in conclusion, with reference to the doubts of constitutional legitimacy, that the Agreement of 28 November 1956, stipulated between the Italian and the U.S. Intelligence Service and the organization and operation of the Italian-U.S. post-occupation Stay Behind-Gladio Clandestine Network, envisaged by it and developed in force of it, are illegitimate, in that they violate articles 80, 72 comma 4 and 87 comma 8 of the Constitution, and are punishable by resorting to the Constitutional Court for conflict of attribution between the powers of the State, which can be raised by each of the two Chambers and/or by the President of the Republic vis-à-vis the Government.

On the contrary, the doubts on the constitutional illegitimacy raised with reference to articles 18 comma 2, and 52 comma 3, and 97 comma 1 of the Constitution are in my opinion groundless.

Pisa, 24 October 1991