US Hypocrisy Over Diplomatic Immunity

“There is a remarkable and almost charming egalitarianism in it. Everybody is treated in exactly the same disrespectful, casually brutal, and arrogant fashion.”

–Defense Attorney Ron Kuby about how “standard procedure” works for arrests in the United Police States of America

The diplomatic brouhaha between the US and India over a federal arrest and multiple strip-search and cavity search of a high-ranking Indian consular official in New York has exposed the astonishing hypocrisy of the US when it comes to the issue of diplomatic immunity, even as it has also exposed the ugly, brutal and sadistic truth about what passes for a “justice system” in 21st Century America..

India’s government is outraged not just at the abusive treatment of Deputy Consul General for Political, Economic, Commercial and Women’s Affairs, Devyani Khobragade, who was arrested a few days ago by US State Department Agents and charged with lying on a visa application for her Indian housekeeper. It is claiming that as a diplomat in the country’s New York consulate, she is entitled to diplomatic immunity.

The US is denying that she has diplomatic immunity, because she is a consular official, not an embassy official. The difference is important. Larger countries like the US and India often have many consular offices in cities of larger countries, primarily to handle visa and other issues, both for citizens of the home country, and for citizens of the host country who may wish to travel to the home country. But each country is allowed only one embassy in a foreign country, with the primary purpose being conducting diplomacy. Embassies are thus always located in the capital city of the host nation.

Denying Deputy Consul General Khobragade immunity might be okay, because under the Vienna Conventions governing Embassies and Consulates, consular officials only are granted limited immunity. Specifically, they are immune from prosecution for crimes involving their performance of consular business, but not for crimes outside of their official duties. Embassy employees, however, have broader immunity. The only exception, which applies to both Embassy and Consular officials, is “serious crimes,” such as rape or murder, where a host country can over-ride immunity, even of an ambassador.

Arguably, Deputy Consul General Khobragade’s alleged crime of lying on a visa document (about the amount she was planning to pay in wages) for an Indian woman she was bringing to the US as a housekeeper, would fall outside of her official duties, which would allow the US to prosecute her, (though I suppose a case could also be made that as an on-call envoy, having in-home round-the-clock childcare might be considered part of the job of deputy consul general–something that it might be worth seeing how us consular officials handle).

However, the US has often taken a different view of such matters, when it is on the other side of a case.

A notable example was the arrest in Pakistan, by Lahore municipal police, of Raymond Davis, a CIA contract worker who was charged with murder for shooting (in the back) and then executing with point blank head shots, two young men on motorcycles who, apparently, were monitoring his actions on behalf of Pakistan’s spy service, the Inter-Service Intelligence (ISI). When first arrested at the scene and brought to the station house for booking, Davis claimed he was an employee at the US Consulate [1] in Lahore, and that he had diplomatic immunity because of that.

Going with that assertion, the US demanded his release, claiming diplomatic immunity. Apparently, driving down a crowded street in Lahore in civilian clothes, heavily armed with multiple automatic weapons, fully loaded large clips and “cop-killer” bullets, with night-vision equipment, cameras, disguises and makeup, and in an unmarked car, which is how police captured him, was just “official consular business” for Davis.

Never mind the absurdity of that mental image. President Obama, at a press conference days after the shooting incident and arrest, somehow managing to keep a straight face, said, ““With respect to Davis, our diplomat in Pakistan, we’ve got a very simple principle here that every country in the world that is party to the Vienna Convention on Diplomatic Relations has upheld in the past and should uphold in the future. If our diplomats are in another country, then they are not subject to that country’s local prosecution. We respect it with respect to diplomats who are here. We expect Pakistan, that’s a signatory should recognize Davis as a diplomat, to abide by the same convention.”

Realizing that they’d made a bone-headed mistake from the outset in having Davis identified as a consular employee, the State Department tried to submit a backdated document to Lahore prosecutors claiming that in fact Davis was an employee of the US Embassy in Islamabad, not just a lowly consular employee in Lahore.

As Pakistani journalist Shaukat Qadir reported in an exclusive report published in ThisCantBeHappening! a few days after Davis’s arrest:

On January 25th 2011, just two days before Davis shot and killed the two young Pakistanis, the US Embassy submitted a list of its diplomatic and non-diplomatic staff in Pakistan to the Pakistani Foreign Office (FO), as all foreign nations are required to do annually. The list included 48 names. Raymond Davis was not on the list. The day after Davis shot and killed the two Pakistanis, the US Embassy suddenly submitted a “revised” list to the Foreign Office which added Davis’ name!

When Pakistani police took Davis into custody on January 27th, he had on his person an ordinary American passport with a valid ordinary Pakistan visa, issued by the Pakistan Embassy in Washington. On January 28th, a member of the US Consulate wanted the Pakistani police to exchange that passport in Davis’ possession with another one. The fresh passport being offered was a diplomatic passport with a valid diplomatic visa dated sometime in 2009. This visa was stamped in Islamabad by the FO!

But even if Davis had actually been an employee of the US Embassy, he would not have been immune from prosecution for the charge of murder that he was facing. As the US well knew, the Vienna Diplomatic Accord cited by President Obama makes an exception to absolute immunity for diplomatic employees in the case of serious crimes. Indeed, the US, over strenuous opposition from the nation of Georgia, prosecuted a Georgian embassy employee in 1997 for the murder of a 16-year-old girl.

In the end, of course, in the Davis case it turned out to all be a pack of government lies. As President Obama, Secretary of State Hillary Clinton, and no doubt, then Senate Foreign Relations Chair John Kerry, all knew from the outset, Davis was a CIA contract worker who was deceptively using his work at the Lahore Consulate as cover, and as such he was entitled to no immunity at all. The only reason Davis didn’t end up spending years languishing in a Pakistani jail (or worse), for the cold-blooded execution of the two men tailing him (and for two related deaths, one of a bicyclist killed by a second CIA car that came to aid Davis, but then sped off the wrong way down the road when the driver saw all the Lahore police, and the other the young bride of one of Davis’s two victims, who took poison after learning of her husband’s death), was that the US paid over $2.3 million to the victims’ families in a Sharia deal brokered through the Pakistani central government. (Some of those families claimed they had been “pressured” by the central government to accept the money.)

In the current case, India’s deputy consul general, who has now been released from custody and has been shifted to a higher-level position with the Indian UN mission, which gives her diplomatic, instead of consular status, may be guilty as charged of trying to hire an Indian maid at Indian wages instead of the required minimum wage for domestic help in the US (though no one should be allowed to pay a servant slave wages, it must be noted that Khobragade remains innocent until proven guilty, and her lawyer says she will plead not guilty). In any event, the US government and the US media should not be acting so indignant and outraged that India would be protesting her arrest. She, at least, as a diplomat, didn’t kill anyone. (We should also note that the monthly pay the US Attorney’s office is claiming Khobragade was paying her maid, $3.31 an hour plus room and board, while abominably low for the US, is far higher than what maids get in India, and is far higher than what US miltinationals are paying their workers in India.)

While we’re at it, let’s also note the obscenity of what the US Marshall Service says is a “standard policy” of conducting strip and cavity searches on all the men and women it arrests and locks up pending arraignment. Do they seriously think that when they pop out and make an arrest of someone unexpectedly, that person will somehow have presciently stuffed some weapon or drug or file into a vagina or rectum in order to wreak mayhem, get high or escape from detention on some charge like visa fraud? I mean, we all know that our vaunted “innocent until proven guilty” presumption is a joke in today’s America, but is the government so smitten with its new police-state powers that it is happy to advertise the true nature of “justice” in the US to the rest of the world?

As radical defense attorney Ron Kuby told an AP reporter, referring to the “standard treatment” of arrested suspects in the US, “There is a remarkable and almost charming egalitarianism in it. Everybody is treated in exactly the same disrespectful, casually brutal, and arrogant fashion” by arresting officers, court marshals and prison guards.

No wonder people in other countries have such a dismal view these days of the “Land of the Free.”

It is certainly all to the good for India and the rest of the world to know the truth about America, but still, you have to wonder what the US State Department is thinking. If, as Secretary of State John Kerry says, the US relationship with India is important, what was his department doing plotting an arrest of a ranking consular official from a friendly country like this, when a mere warning to her that she needed to adequately pay her housekeeper or face expulsion from the country would have sufficed.

Also, what’s the deal with these “State Department Agents” who investigated the Indian Deputy Consul General’s visa application and her housekeeper’s pay arrangements, initially in India, and who then made the arrest at her home in New York? A State Department website [2] headed “US State Department: Diplomacy in Action” advertises career opportunities as Special Agent, calling the unit “A Global Force.”

The page describes the job as follows:

The men and women of Diplomatic Security are specially trained federal law enforcement professionals. Diplomatic Security special agents are Foreign Service security officers assigned domestically and overseas to ensure that American diplomacy is conducted in a safe and secure environment. Overseas, they advise ambassadors on all security matters and manage a complex range of security programs designed to protect people, facilities, and information. In the United States, agents investigate passport and visa fraud, conduct personnel security investigations, and protect the Secretary of State and certain foreign dignitaries.

Doesn’t the US government have enough “law enforcement” and “defense” organizations already, without giving the State Department its own armed paramilitary operation? Embassies and Consulates already have Marine guards, already have CIA agents working undercover as “diplomats,” and have access to the FBI, the DEA, the ATF, the DOD, the Secret Service and who knows what other three-lettered organizations with armed personnel to investigate law-breaking and to defend diplomats. Why do they need this one too, particularly if all it can do is piss off the people of another country through gratuitously abusive treatment?

Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).