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from Alison Frankel:
Remember the diplomatic crisis with India that followed the arrest last December of a deputy consul general named Devyani Khobragade? Khobragade, who worked at the Indian consulate in Manhattan, was picked up by the Diplomatic Security Services for allegedly committing visa fraud to get her nanny into the United States. Indian officials were outraged when Khobragade said she'd been strip-searched, even though the U.S. Marshals later said that she was not subjected to an internal cavity search. The crisis took a peculiar turn when Manhattan U.S. Attorney Preet Bharara - whom the Indian government criticized for abusing his prosecutorial discretion - put out a statement defending Khobragade's arrest and processing. Among Bharara's points in the Dec. 18 announcement: State Department agents had arrested the deputy consul, not prosecutors from his office.
The State Department, meanwhile, was re-evaluating Khobragade's diplomatic status after the Indian government, following her arrest, appointed her to India's permanent mission at the United Nations. Khobragade's lawyer, Daniel Arshack of Arshack, Hajek & Lehrman, told Reuters at the time that Khobragade's new post entitled her to retroactive diplomatic immunity for her supposed crimes. With the State Department issuing vaguely worded statements of regret about Khobragade's treatment, I wondered if State might make the whole mess quietly disappear by granting the Indian diplomat immunity. That action would leave U.S. Attorney Bharara and the Justice Department stranded, but would quell foreign allies in India.
Instead, State has chained itself to Justice in the Khobragade case. On Friday, Bharara's office filed its response to Khobragade's motion to dismiss the indictment against her. According to the Justice Department brief, which attaches a declaration from the State Department's Office of the Legal Advisor, Khobragade surrendered any claim to full diplomatic immunity when she left the United States earlier this month. Nor is she entitled to limited retroactive immunity for her conduct as deputy consul, the brief said, because her alleged crimes were not connected to her official duties. What's interesting is the filing's lack of ambiguity: The brief leaves no quiet escape route open for the U.S. government. Both State and Justice, in other words, are determined to keep charges against Khobragade alive, in the event she ever falls within the jurisdiction of U.S. courts.
Khobragade's lawyer, Arshack, offered two rationales for tossing the charges against her (visa fraud and making false statements to federal investigators). Consular officials, unlike full-fledged diplomats, are ordinarily immune only from charges related to their duties. That limited immunity would not shield Khobragade from supposedly lying about her nanny. But according to her lawyer, Khobragade had full diplomatic immunity dating back to August because the United Nations credentialed her as a special advisor during the Indian Prime Minister's visit to the UN last summer. Those credentials, he said, didn't expire until December 2013. Moreover, Arshack said, India transferred Khobragade from its consulate to its permanent UN mission on Dec. 20. The State Department subsequently credentialed her as a diplomat, with all of the privileges and immunities that attach to the designation. Khobragade's diplomatic immunity, Arshack argued, should reach back to cloak her conduct as a consul, which means she cannot face charges for her alleged crimes. "The State Department's decision to fully grant diplomatic credentials mandates the dismissal of this action," the brief said.
from Expert Zone:
(The following essay is commentary. The views of the author do not necessarily reflect those of Reuters)
Relations between the United States and India have crashed to their lowest ebb since the last millennium, something many Americans might have missed during the holiday buzz. A spat over the treatment of a diplomat and her maid threatens the foundations of a key international partnership, and the implications extend far beyond foreign policy. This case could endanger American diplomats, businesspeople and tourists travelling abroad.