India-US Strategic News and Discussion

[JwalaMukhi]

Oh no, no. There is a very crafty way that the lawyers would be spinning the mexican labor to classify them as "interns".

[Dipanker]

Here is the State Dept. Diplomatic and Consular immunity, this should provide pointers towards the basis for DK's prosecution and whether she had fully diplomatic immunity or only functional immunity as per Vienna Convention guidelines:

http://www.state.gov/documents/organization/150546.pdf

[Yagnasri]

But as per reports at the time of her arrest she is also part of U.N. diplomatic gang and thereby enjoys full diplomatic immunity. Once that is established bye bye to lot of hot heads in new yark and D.C.. India case will be extremely strong and U.S. will have serious explanations to make.

[A_Gupta]

So, it would seem to me that if the US DOJ had a complaint against DK, the proper procedure would have been to inform the MEA and ask them to waive immunity.

If you look at the timeline of the dispute, back in September the State Dept. did inform MEA that DK will be prosecuted.

I don't see that DK would be prosecuted. E.g. the Daily Mail of UK doesn't mention anything about prosecution. The American side only informed the Indian side that there were allegations against DK.

SEPTEMBER 4, 2013: The US State Department issues a one-sided letter to the Indian Ambassador, projecting the allegations of the maid which are of "considerable concern", and asking for the allegations to be probed. It also seeks a voluntary meeting between Khobragade and the Bureau of Diplomatic Security in the State Department as well as proof of payment of minimum wages from the embassy.

Read more: http://www.dailymail.co.uk/indiahome/in ... ident.html

From further down

The United States had informed the Indian Government about the allegations against Devyani Khobragade, the Deputy Consul General in New York, over three months prior to her arrest last week.

A State Department official told Mail Today: "To confirm, the State Department notified the Indian Embassy in writing on September 4. The Department of State advised the Embassy of the Republic of India of allegations of abuse made by an Indian national against the Deputy Consul General of India in New York."

I hope you understand the difference between "we have received this complaint about one of your people" and "we are about to arrest one of your people". Apparently many journalists do not.

For instance, the headline here is:
http://www.ibtimes.co.in/articles/53086 ... curity.htm

Indian Embassy Knew About Devyani Khobragade's Arrest, says US

US deputy spokesperson revealed in a press briefing that the Indian Embassy in New York was aware about the arrest of Indian Deputy Counsel General Devyani Khobragade, on charges of fraudulent visa document and misleading statements, in September.

"The State Department advised the Embassy of the Republic of India in writing in September of allegations of abuse made by an Indian national against the deputy consul general of India in New York," said Marie Harf, US state department deputy spokesperson, during a briefing while discussing the procedure US authorities went through when US human trafficking department came up with the case against Khobragade.

Notice, it is information about the allegations, not the arrest.

You can read the transcript:
e.g, Dec 19 press briefing:
http://www.state.gov/r/pa/prs/dpb/2013/12/218963.htm

MS. HARF: Well, we certainly – I mean, this is why we notify governments, including, as we did in September in this case, when there are allegations made against their diplomats or consular officers or other folks in their missions here in the U.S. We tell them their allegations.

Dec 17
http://www.state.gov/r/pa/prs/dpb/2013/12/218861.htm

MS. HARF: Well, in accordance with – I think this might be what your question is getting at – the Department’s policy of advising foreign missions of allegations made involving a member of a mission or a family member, the State Department advised the Embassy of the Republic of India in writing in September of allegations of abuse made by an Indian national against the deputy consul general of India in New York. I’m sorry, I called her the consul general earlier. I mispronounced her title. So we notified them in writing in September. Obviously, we play a role in this, but the Department of Justice also obviously handles the legal aspect of it as well.

[ramana]

DK had diplomatic immunity as she was concurrently on UN accredition.

A strong case is there to file charges of false arrest on the US govt authorities.

[Dipanker]

I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

[habal]

I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

and your point is ?

[Arjun]

What is the system for resolution of disputes under the VCCR ? Is there a court that adjudicates on disputes between countries ?

[A_Gupta]

(excerpt from Indian letter to US Dept of State)

Separately, on July 15, 2013, Mr. Philip Richard, husband of Ms. Sangeeta Richard filed a Writ Petition against Dr. Khobragade and the Union of India alleging that Ms. Sangeeta Richard was in police custody in New York and charging Dr. Khobragade. On July 19, 2013, Mr. Richard voluntarily withdrew his Writ Petition.

Exactly - Mr Richard withdrew his Writ Petition, as also reflected on the Delhi High Court web-site.
"The Other Side of the Story" quoted Richard lawyer Adeeb's claim that the court dismissed his petition on the grounds of lack of jurisdiction.

Tells you clearly who is stretching the truth, doesn't it?

[A_Gupta]

I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

The US said she had functional immunity with regard to DK's consular function. They did not consider/discuss the Advisor UN Permanent Mission role that DK had, listed in the March 2013 issue by the UN of Permanent Mission staff.

[chaanakya]

Here is the State Dept. Diplomatic and Consular immunity, this should provide pointers towards the basis for DK's prosecution and whether she had fully diplomatic immunity or only functional immunity as per Vienna Convention guidelines:

http://www.state.gov/documents/organization/150546.pdf

Why don't you go through the original VCCR. Also read the definition of "Members of Service Staff" in Article 1.

http://www.state.gov/documents/organization/17843.pdf

And apply your understanding rather than reading "interpretations" of State Dept of US.

Suraj has been talking about Art 47. Read up from 41-47 , at least. Also Read Art 41 and tell me which part of the sentence you are not able to comprehend. I shall endeavour to explain.

Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority

Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect

[Suraj]

Thank you, chaanakya, for repeating the VCCR provisions, and also for your timeline post earlier.

There's a lot of effort being spent on listing the charges against DK and examining their accuracy, without asking whether they have any business bringing charges against her or not - regardless of diplomatic immunity. Just her consular privileges according to Article 47 are enough. Article 41 says her arrest was wrong.

To summarize: DK did not need diplomatic immunity beforehand to prevent her arrest, or from being charged. Articles 41 and 47 of VCCR are enough for that. She needs diplomatic immunity now because the US actions do not comply with VCCR, so the only avenue available to India is to completely avoid the judicial process through immunity.

[ramana]

The US ignored DK's UN accredition. They see only the Dy Consul position in NY.

[chaanakya]

I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

She is Deputy Consul General. For your infor on the day of arrest She was Consul General In charge in absence of incumbent in station. That makes her top officer in the Consulate and not some "2nd/3rd tier staff" . Obviously you have been skipping on must read before posting. But even then , if she is a low rank officer , would you like her to be arrested for flimsy charge on suspicious ground and subjected to humiliation??

(c)“head of consular post” means the person charged with the duty of acting in that capacity;

(d) “consular officer” means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular
functions

[Prasad]

I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

Did you not read this or are you deliberately avoiding it to keep arguing for arguments' sake?

39-year-old Khobragade, who was posted as Deputy Consul General in #New York, was also accredited as an "Advisor to the Permanent Mission of India to the United Nations" by the UN w.e.f. 26th August 2013 and her status as an Advisor was valid until 31 December 2013. The accreditation was for the UN General Assembly 2013.

Under the "Convention on the Privileges and Immunities of the United Nations", Article 4 Section 11A specifies "Immunities from personal arrest or detention and from the seizure of their personal baggage" of all representatives of members to the UN and further the Article specifies that the expression "Representative" shall be deemed to include all Delegates, Deputy Delegates, Advisors, Technical Experts and Secretaries of delegations.

http://www.newsx.com/national/nation/it ... -of-arrest

[Suraj]

I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

* VCCR does not recognize tiers of staff. You're either a member of consulate staff or you are not. She is a member of staff.
* Her consular rights were sufficient to prevent her original chargesheeting and arrest:
VCCR in text form

Article 41
Personal Inviolability of Consular Officers
* Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
* Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.
* If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this Article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

Article 47
Exemption From Work Permits

* Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour. -- Applies to DK
* Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this Article. -- Applies to SR

Article 47 prevents her from being charged. Article 41 prevents her from being arrested on this charge.

[Yagnasri]

The US ignored DK's UN accredition. They see only the Dy Consul position in NY.

Not ignored sir, they might not even knowing. Just not bothered to look twice before acting. Now she got full diplomatic immunity at the time of her arrest.

Only question is is India going to show guts other not?

[ramana]

Dipankar, What you are doing is called fogging in psychologist speak. Keep repeating the same thing even if it is shown to be incorrect. In modern parlance its called trolling. Usually its done when one has an agenda and not when one has an open mind.

Regretfully for the sake of the forum have to warn you to get you out of the mind set.

Thanks, ramana

[saip]

Now the question is if DK asserted her full immunity at the time of her arrest, If she did not, while it will not preclude her from asserting it at a later date, unfortunately, it would absolve the arresting officers from any wrong doing.

[Dipanker]

I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

The US said she had functional immunity with regard to DK's consular function. They did not consider/discuss the Advisor UN Permanent Mission role that DK had, listed in the March 2013 issue by the UN of Permanent Mission staff.

So basically it boils down whether her Adviser to UN Permanent Mission post is ranked high enough to grant her complete immunity or only functional immunity, or whether all UN Permanent Mission staff have complete immunity.

If the answer is latter, case dismissed.

[chaanakya]

Thank you, chaanakya, for repeating the VCCR provisions, and also for your timeline post earlier.

There's a lot of effort being spent on listing the charges against DK and examining their accuracy, without asking whether they have any business bringing charges against her or not - regardless of diplomatic immunity. Just her consular privileges according to Article 47 are enough. Article 41 says her arrest was wrong.

To summarize: DK did not need diplomatic immunity beforehand to prevent her arrest, or from being charged. Articles 41 and 47 of VCCR are enough for that. She needs diplomatic immunity now because the US actions do not comply with VCCR, so the only avenue available to India is to completely avoid the judicial process through immunity.

Thanks, I feel the need to dispel the fog of doubt and sometimes get angry. People argue without reading up.


At the cost of repeating myself and you as well , here is the original Art 47

Article 47
Exemption from work permits
1. Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.
2. Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this Article.

So Charge of slave labor does not apply.
Applicability of labor laws related to work permits do not apply.
Indictment should not have been brought in the first place.
She was paying the wages she promised which was higher than the minimum wages prevalent in NY at the relevant time and even now. So charge of non payment or low wages do not hold.
Arrest is the next issue. It should never have been resorted to even when there were grave charges and that too pursuant to a Judicial decision of final effect. Preet Bharara is not a Judge but Prosecutor.

[Suraj]

Now the question is if DK asserted her full immunity at the time of her arrest, If she did not, while it will not preclude her from asserting it at a later date, unfortunately, it would absolve the arresting officers from any wrong doing.

You will be charged with resisting arrest, which would get ugly. Once they went against her VCCR Article 41 rights and arrested her, it was better to go through the processing and then take up the matter.

[ramana]

Not really. The US always says "ignorance of the law is no excuse." Her immunity is not based on her assertion or otherwise.

[chaanakya]

So basically it boils down whether her Adviser to UN Permanent Mission post is ranked high enough to grant her complete immunity or only functional immunity, or whether all UN Permanent Mission staff have complete immunity.

If the answer is latter, case dismissed.

It is for the arresting authority to satisfy themselves fully before proceeding further if Claim of Immunity is made. And UN accreditation means full immunity unless waived off. They should have checked that after it would have been processed by them. Why they failed to follow SOP and due process?? Selective amnesia??

[Suraj]

So basically it boils down whether her Adviser to UN Permanent Mission post is ranked high enough to grant her complete immunity or only functional immunity, or whether all UN Permanent Mission staff have complete immunity.

If the answer is latter, case dismissed.

Wrong. Consular staff and their assistants are not subject to local work permit laws. Regardless of her level of immunity - consular or diplomatic - she cannot be charged with this particular crime.

[svenkat]

SSridharji,
Reading tamizhchindus website,one realises the huge gulf between BRf and 'saraasari manithan' who gets information from such media.

Mu.Ka. asks why Cabinet ministers are 'screaming restlessly' about DK case.

[chaanakya]

Now the question is if DK asserted her full immunity at the time of her arrest, If she did not, while it will not preclude her from asserting it at a later date, unfortunately, it would absolve the arresting officers from any wrong doing.

Yes , She asserted that She had diplomatic immunity and not liable to arrest.

http://www.washingtonpost.com/world/dev ... story.html

I am deliberately quoting from WaPo as some believe gora words more. It has been widely reported though in Indian media as well.

I am so grateful for all the outpouring of unequivocal support and backing that has been available to me from the fraternity. I take comfort in the confidence that this invaluable support will also be translated into strong and swift action, to ensure the safety of me and my children, as also to preserve the dignity of our service which is unquestionably under siege.

While I was going through it, although I must admit that I broke down many times as the indignities of repeated handcuffing, stripping and cavity searches, swabbing, hold up with common criminals and drug addicts were all being imposed upon me despite my incessant assertions of immunity, I got the strength to regain composure and remain dignified thinking that I must represent all of my colleagues and my country with confidence and pride. I feel I can continue to do so thanks to this strong and prolific support.

I cannot say more now but will later, I did feel the deep need to thank you all so much.

Devyani

[eklavya]

However, the manner of arrest and strip search and cavity search resorted to was uncalled for to say the least.

DK is striped searched, Body cavities are examined which actually constitute rape in India Context.

DNA swab is taken . All part of SOP.

16. Once everything is subsided take one white meat to Thana and show what real CS is all about.

The IFS officer may have been lying about being subjected to a cavity search, or maybe the USMS is lying:

http://www.dnaindia.com/world/report-de ... ls-1937895

http://articles.economictimes.indiatime ... khobragade

http://zeenews.india.com/news/nation/de ... 98089.html

"In reference to your question about the cavity search, the answer is no," Nikki Credic-Barrett, spokesperson of the US Marshals Service, told a news agency in response to a question on the allegations by the family of the senior Indian diplomat that she was subject to cavity search.

[svenkat]

The lawyer for Richard is quoted in the story as saying that the Delhi High Court dismissed Richard's petition against DK (July 19) saying that it did not have jurisdiction for something that happened overseas. That is almost certainly wrong - I provided information about this , including the Delhi High Court ruling on the Richard's petition some pages ago on this thread. The Delhi High Court, as per its web-site, noted the withdrawal of the petition, and said it would take up the matter again if a petition was refiled.

A_Guptaji,
I see this assertion in a post you have made in page 178.But I dont see you having made any such post before the quoted post.OTOH,theres one immediately after this post,having a link to Delhi High Court website about the withdrawal of the petition.Is it just a typing error,or do you have some other information on DHC ruling.

[chaanakya]

However, the manner of arrest and strip search and cavity search resorted to was uncalled for to say the least.

DK is striped searched, Body cavities are examined which actually constitute rape in India Context.

DNA swab is taken . All part of SOP.

16. Once everything is subsided take one white meat to Thana and show what real CS is all about.

The IFS officer may have been lying about being subjected to a cavity search, or maybe the USMS is lying:

http://www.dnaindia.com/world/report-de ... ls-1937895

http://articles.economictimes.indiatime ... khobragade

http://zeenews.india.com/news/nation/de ... 98089.html

"In reference to your question about the cavity search, the answer is no," Nikki Credic-Barrett, spokesperson of the US Marshals Service, told a news agency in response to a question on the allegations by the family of the senior Indian diplomat that she was subject to cavity search.

DK, being women ,had no reason lying about it. I am horrified that Kruttika Biswas would have undergone same procedure, but being student and unmarried, her father did not choose to make it public. In fact cavity search is included as SOP for intake process to prisons by USMS. They follow the process to the dot as per their claim. Their manual clearly indicates process. Hence if they claim otherwise, after the outrage, they are 100% lying and trying to cover up.

Heck , POTUS was lying and got caught. These USMS are certified low IQ.

[eklavya]

I'm not sure its easy to conclude that the USMS officer is lying and the IFS officer is not lying. The IFS officer allegedly lied on her application form for an Adarsh apartment, the IFS officer allegedly lied on the visa form for her maid, and the IFS officer may have told lies about being subject to a cavity search. Maybe the IFS officer is a victim of a terrible conspiracy, but maybe, just maybe, the IFS officer tells an awful lot of lies (not in the line of duty). Let the courts decide.

[Suraj]

Let the courts decide.

This is not going to happen, since diplomatic immunity rightly prevents her from being subject to the legal system anymore.

[Sagar G]

Where the hell does american courts come into picture when the entire case is about violating diplomatic immunity ???

[KrishnaK]

Article 41
Personal Inviolability of Consular Officers
* Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

Suraj, what the US claims is that trafficking charges meet the criteria of a "grave crime". It should be far easier to contest on the second part that you mention:

Wrong. Consular staff and their assistants are not subject to local work permit laws.

[Theo_Fidel]

This is not going to happen, since diplomatic immunity rightly prevents her from being subject to the legal system anymore.

Unfortunately this is not entirely correct. Some USA court is going to have to decide that she has immunity. I don't think it is clear at all that she has immunity for the charges filed. Her defense lawyer will undoubtedly go after this.

My own view that the very next USA move could be to go after her USA husband. If any of the money trail leads to him, say from a joint account, he could easily be in trouble. USA prosecutors tend to turn the screws till they get what they want.

[Suraj]

Article 41
Personal Inviolability of Consular Officers
* Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

Suraj, what the US claims is that trafficking charges meet the criteria of a "grave crime". It should be far easier to contest on the second part that you mention.

Please read Article 47. They cannot make such a charge in the first place, much less deem it a 'grave crime' to satisfy Article 41.

[chaanakya]

I'm not sure its easy to conclude that the USMS officer is lying and the IFS officer is not lying. The IFS officer allegedly lied on her application form for an Adarsh apartment, the IFS officer allegedly lied on the visa form for her maid, and the IFS officer may have told lies about being subject to a cavity search. Maybe the IFS officer is a victim of a terrible conspiracy, but maybe, just maybe, the IFS officer tells an awful lot of lies (not in the line of duty). Let the courts decide.

1. On Adarsh, She did not lie. She informed that she is going to sell the flat in Oshiwara and from that proceed she would buy Adarsh which she eventually did. Adarsh Report did not find any evidence of her father dealing with Adarsh files in any manner unlike many other beneficiaries. The Commission merely listed her as not being eligible because she had a flat in Oshiwara. I don't think she was connected to Adarsh Scam in any way. Read Adarsh Report. Commission overlooked that submission.
2. She did not file Visa application SR did. And now, it has emerged that no wrong information was given but Mark Smith , Agent for DSS, USD misread Visa information. SO that charge is wrong and unwarranted.

Anyway Adarsh has nothing to do with the case. We are always talking about the Diplomat and not the individual.

In fact nowhere it is established that she lied.

[Suraj]

This is not going to happen, since diplomatic immunity rightly prevents her from being subject to the legal system anymore.

Unfortunately this is not entirely correct. Some USA court is going to have to decide that she has immunity. I don't think it is clear at all that she has immunity for the charges filed. Her defense lawyer will undoubtedly go after this.

It is not a US court that establishes immunity. The UN accreditation is accepted by the US state department, not a judge. She will still not be subject to the US justice system anymore. All they can now do is either declare her persona non grata or not. Nothing further to do with the police or courts. The fact that the US has a flawed system of judges defining extent of consular immunity is why full diplomatic immunity was necessary, to circumvent a court judgement.

If the state department chooses to reject her UN accreditation despite the fact that she has been attached to them since August, that serves them no purpose at all, because India will probably reciprocate by declaring someone from the US embassy persona non grata in kind.

[chaanakya]

Article 41
Personal Inviolability of Consular Officers
* Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

Suraj, what the US claims is that trafficking charges meet the criteria of a "grave crime". It should be far easier to contest on the second part that you mention:

Wrong. Consular staff and their assistants are not subject to local work permit laws.

Two counts of charges

1. Not paid wages as promised i.e. $4500. What was paid works out to $3.31 PH based on some calculation. But she actually paid $9.75 where as minimum wages is $ 7.25 or $8.0 PH Misreading Visa form is problem of Mark Smit and not that of DK. She never promised $4500 PM but $9.75 PH. She did not file Visa for or appear for interview. Visa officer could have rejected as was done in 470 cases out of 1000+ cases applied for.
2. Furnishing wrong information on Visa form which is based on Two contracts. One which indicates $9.75 PH or Minimum wages whichever is higher. Second contract promises to send Rs 30000 PM in India in their account and balance to be paid in NY which was done.

There is no trafficking charge as such. This is result of some feverish imagination.

[chaanakya]

This is not going to happen, since diplomatic immunity rightly prevents her from being subject to the legal system anymore.

Unfortunately this is not entirely correct. Some USA court is going to have to decide that she has immunity. I don't think it is clear at all that she has immunity for the charges filed. Her defense lawyer will undoubtedly go after this.

My own view that the very next USA move could be to go after her USA husband. If any of the money trail leads to him, say from a joint account, he could easily be in trouble. USA prosecutors tend to turn the screws till they get what they want.

Court has no say in jurisdiction. Once it is brought to their notice, case will be thrown out else someone will taste Tihar hospitality here.
We are not bothered about her husband. He is not representing India. he is US citizen and subject to their Laws. That's it.